Suzanne Marie Collins was nineteen, a Marine lance corporal in avionics training at the naval air station in Millington, north of Memphis. At about ten on the night of July 11, 1985, she left her barracks in a red Marine T-shirt and shorts to go jogging on the base, and she was found dead near it the next morning. Sedley Alley, a civilian whose wife was stationed at Millington, gave a taped statement to Naval Investigative Service agents that same morning describing how she died. He later said the confession had been coerced.
A Shelby County jury convicted him of premeditated first-degree murder, kidnapping and aggravated rape and sentenced him to death, and the Supreme Court of Tennessee affirmed in 1989. The opinions that follow trace what came after. In 1994 the Court of Criminal Appeals sent his post-conviction case to a different judge because of remarks by the one who had been hearing it; in 1997 it upheld the denial of relief by the new judge. The Sixth Circuit affirmed the denial of federal habeas corpus in 2002, and between 2004 and June 2006 it ruled on a motion claiming fraud on the court, on a stay of execution and on his lawyers' final requests; the last of those orders came on June 27, 2006, the day before he was executed.
Alley was executed by lethal injection at Riverbend Maximum Security Institution in Nashville on June 28, 2006, at fifty. He had asked for DNA testing of the evidence found with the body, and the Tennessee courts refused it. In 2019 his daughter, as executor of his estate and with the Innocence Project, petitioned the Shelby County Criminal Court to have that testing done after a tip linked another man to the case, and in February 2021 the Court of Criminal Appeals heard argument on the request. None of that later litigation is in these pages.
These are rulings, and the first of them, the 1989 opinion, is the fullest account of the trial the file contains. Its statement of facts is the Supreme Court of Tennessee's summary of the evidence, and it includes the court's retelling of the statement Alley gave the naval investigators. That retelling is not a transcript of the tape, and the claim that the statement was coerced is not something any of these courts accepted. The question of who killed Suzanne Collins has not been reopened by any court whose ruling is printed here.
Nine opinions are printed in date order, from State v. Alley, 776 S.W.2d 506 (1989), to the last of three Sixth Circuit rulings in Alley v. Little in June 2006. The final three are not attacks on the conviction. They are civil actions about the execution itself, in which the defendants are Tennessee's Commissioner of Correction and other officials, and in the first of them Alley is the appellee because he had won in the district court. Several are short orders, a few hundred words long, and two carry dissents longer than the orders they dissent from.
One name has been shortened. The 1989 opinion discusses at length a prospective juror who was excused because of his doubts about the death penalty, and it names him eleven times; here he is Mr. J. He was a private citizen called for jury service who never sat on the case. The victim, her father, the defendant's brother, the doctors and social worker who testified, the lawyers and the judges are named as the courts named them.
Court opinions are public domain and may be copied in full. The text comes from the Caselaw Access Project's digitized edition of the official reporters, and we ran no spelling repair over it: its few flaws belong to that digitization, and the only honest thing to do with them is leave them. Two are easy to see. The 2004 Sixth Circuit opinion spells the defendant's name Aley at one point, and the 1994 Tennessee opinion records a judge not participating as DWWER, J. We tidied the spacing, turned the reporter's opinion markers into headings and kept the footnotes beneath the opinion each belongs to.
STATE of Tennessee, Appellee, v. Sedley ALLEY, Appellant.
Supreme Court of Tennessee, at Jackson.
Aug. 7, 1989.
W. Mark Ward, Memphis, for appellant.
W.J. Michael Cody, Atty. Gen. & Reporter, Norma Crippen Ballard, Asst. Atty. Gen., Nashville, for appellee.
OPINION
FONES, Justice.
This is a direct appeal of a death penalty case. Defendant was convicted of premeditated first degree murder, kidnapping and aggravated rape. The jury found two aggravating circumstances, the murder was especially heinous, atrocious or cruel and the murder was committed during kidnapping and rape, and sentenced him to death. He was sentenced to 40 years on each of the other offenses, all sentences consecutive.
The victim was Suzanne Marie Collins, age 19, a lance corporal in the U.S. Marine Corps stationed at the Millington Naval Base, while she was pursuing courses in avionics. She was described by her roommate as a friendly, happy, outgoing person, always ready to help others with their problems. In the Marines, she was, “on the honor desk”, which required the achievement of high standards, academically and otherwise and that, “you be a real motivated, squared-away Marine.”
At approximately 10:00 p.m. on 11 July 1985 she left her barracks dressed in physical training gear, a red Marine T-shirt, red Marine shorts, white socks and tennis shoes and went jogging on the Base, north of Navy Road. Her roommate indicated that the victim had been too busy that day to work out at the gym, which was closed at that time of night. Her body was found the next morning in Orgill Park, which adjoins the Naval Base, north of Navy Road.
Defendant was not in the military service but was married to a military person and they lived on the Naval Base. He was employed by a Millington heating and air conditioning company. He was almost 30 years old, had two children, bom of an earlier marriage, living in Kentucky, and had a history of alcohol and substance abuse. After appropriate Miranda warnings defendant waived the presence of an attorney and gave a lengthy statement of his activities that resulted in the death of Suzanne Collins to officers of the Naval Investigating Service on the morning of 12 July 1985. The statement was tape recorded with defendant’s permission. A narrative account of the relevant events of that evening as he related them to the Naval officers follows.
About 7:00 p.m. on 11 July 1985, his wife left with two women to go to a Tupperware party. Defendant had been drinking beer before they left and by approximately 9:00 p.m. he had consumed an additional six-pack and a fifth of wine. At that time he drove his 1972 Mercury station wagon, with a Kentucky license tag to the Mini Mart and purchased another six-pack. He was depressed, lonely and unhappy. He had no friends “of his own” here. He missed his two children, his mother and father, all Kentucky residents. He was torn between going to Kentucky, staying where he was, or driving the car into a wall to kill himself. He drove to the north side of the Base, parked on a lot near the golf course and started running toward Navy Lake. He ran past a girl jogging and before he got to the lake he stopped, she caught up with him and they had a brief conversation. He did not know her name and had never seen her before. They turned around and jogged back to his car. He stopped there out of breath, and she continued on toward the gate at Navy Road. He started driving down the road toward that gate in spite of his apparent recognition that he was drunk and weaving from side to side on the roadway. Parenthetically, the asphalt road in that vicinity has narrow lanes, no curb, the grass covered shoulders and nearby terrain are approximately level with the roadway. He heard a thump and realized he had struck the girl jogger. Quoting from his statement, “she rolled around and screamed a. couple of times and I ran over and grabbed her and told her I was going to take her to the hospital. I helped her into the car and we started towards....”
On the way to the hospital defendant said that she called him names such as a drunken bastard and threatened to get him in trouble and he tried to calm her down, without success. When he reached the traffic light on Navy Road near the 7/11 store he turned left and again went to the north part of the Base in the vicinity of the lake. He described in considerable detail the subsequent events, that included hitting her a few times, holding her down on the ground, and sticking a screwdriver in the side of her head, under circumstances apparently calculated by defendant to appear to be accidental. All of these actions were because she would not listen to his pleas not to turn him in.
He insisted that he did not have sex with her at any time, nor did he even try at any time. He insisted that he was scared of the trouble she was threatening him with and was drunk and could not think clearly. After sticking the screwdriver in her head and her collapse, he decided to make it appear that she had been raped. He took off her clothes, and dragged her by the feet over near a tree. There he broke off a tree limb, inserted it in her vagina and “pushed it in.” He then ran to the car and drove away.
The State called numerous witnesses who observed some of the movements of defendant and victim that night.
A Naval officer driving north toward the lake on the Base passed two male Marines jogging north, and later saw a female Marine in red T-shirt and red shorts also jogging north. After passing the lone Marine he saw a white male near an old station wagon with wood paneling that was parked on an empty lot near the buffalo pens. The two Marines testified that as they jogged north a female Marine was jogging south and shortly thereafter they encountered a station wagon with wood grain paneling also going south that swerved over into the north lane towards them. The car continued on southward and when they were several hundred yards further north they heard a female voice screaming in distress, “Don’t touch me”, “Leave me alone.” They immediately turned around and ran south in the direction of the scream. It was too dark to see any activity very far ahead and before they reached the scene they saw the station wagon drive off toward the main gate. At that time they were about 100 yards away and were able to observe that the station wagon was off the road in the grass, near the fence, on the left or wrong side for a vehicle going south. Suspecting a kidnapping they continued on to the gate and gave a full report of what they had witnessed. They accompanied military security personnel on a tour of the residential areas of the Base looking for the station wagon, without success. However, after they returned to their barracks, they were summoned to the security offices where they identified the station wagon. Defendant had been stopped and brought in for questioning as had his wife. Their responses had allayed any suspicion that defendant had been connected with a kidnapping and they were allowed to go home. All of these events occurred before approximately 1:00 a.m., 12 July 1985. The victim’s body was found shortly before 6:00 a.m. on that date and defendant was promptly arrested by the military police.
After completing the statement, defendant voluntarily accompanied officers over the route he had taken the night before and to the location of the murder and accurately identified various things, including the tree where he had left the body and where it was found by others and from which the limb he used had been broken.
The pathologist, Dr. James Bell, testified that the cause of death was multiple injuries. He also identified several specific injuries, each of which could have been fatal. The victim had bruises and abrasions over her entire body, front and back. He testified that the injuries to the skull could have been inflicted by the rounded end of defendant’s screwdriver that was found near the scene, but not by the pointed end. He identified the tree branch that was inserted into the victim’s body. It measured 31 inches in length and had been inserted into the body more than once, to a depth of twenty inches, causing severe internal injuries and hemorrhaging. The pathologist was of the opinion that the victim was alive when the tree limb was inserted into her body. There were also bruises on the victim’s neck consistent with strangulation.
The first and most serious issue presented by defendant in this Court is his contention that the evidence was insufficient to establish his sanity beyond a reasonable doubt.
Defendant presented sufficient evidence through the testimony of a psychiatrist, a clinical psychologist and staff persons at Middle Tennessee Mental Health Institute (MTMHI) to raise the issue of his sanity and shift the burden to the State to prove beyond a reasonable doubt that he was able to appreciate the wrongfulness of his conduct and had the capacity to conform his conduct to the requirements of the law. See State v. Clayton, 656 S.W.2d 344 (Tenn.1983).
Dr. Wyatt Nichols, a clinical psychologist, testified that hé examined defendant on 7 November 1985 and was unable to form an opinion as. to appellant’s sanity at the time of the offense because defendant had amnesia and was unable to recall the events of that evening. He referred defendant to Dr. Allen Battle when he learned that a multiple personality disorder was suspected, as he did not have experience or expertise in that area.
Dr. Willis Marshall and Dr. Battle diagnosed defendant as suffering from a multiple personality disorder. Dr. Marshall testified that he was the only psychiatrist on the evaluation team that examined defendant at MTMHI during the period defendant was at that facility, 21 April to 25 July 1986. In order to see the patient at a time when another personality had taken over, defendant was interviewed under the influence of sodium amytal and under hypnosis. Dr. Marshall testified that in his opinion a personality other than “Sedley” was revealed in those sessions. He was of the opinion that defendant had one alternate personality, and possibly two. Defendant’s other personalities were referred to as “Power” or “Death”, and “Billie.” Dr. Marshall testified that if either of those personalities had been in control at the time of the offense, defendant or “Sedley” could neither appreciate the wrongfulness of his conduct nor conform his conduct to the requirements of the law. However, he was unable to say that a personality other than “Sedley” was in control at the time of the offense. Dr. Marshall admitted on cross-examination that he had no special expertise in the area of multiple personality disorders and had never personally observed an alternate personality. Dr. Marshall admitted that defendant’s detailed confession on the day following the murder was inconsistent with defendant’s later claim of loss of memory and multiple personality disorder at the time of the offense. But, he was of the opinion that there might be communication from one personality to another, one of the several areas of disagreement in the testimony of experts. Dr. Marshall did not believe that defendant had been malingering.
Dr. Allen Battle testified that he had treated more than a dozen cases of multiple personality disorders. He hypnotized defendant on three occasions and diagnosed defendant as suffering from a multiple personality disorder and he was also convinced that defendant was not faking his condition. While he was of the opinion that he had that condition in July 1985, he had no opinion as to whether an alternate personality was in control at the time of the offense.
Defendant’s older sister testified that she received a strange telephone call from him during which his voice changed and “Billie” and “Power” spoke. A psychiatric social worker at MTMHI confirmed the voice change during the call to his sister and told of an occasion when defendant brought her some poems and drawings that he claimed were the work of another personality.
The State’s witness, Dr. Sam Craddock, a clinical psychologist at MTMHI, testified that he administered psychological tests to defendant on 15 May 1986. He interpreted the tests as justifying the opinion that defendant was exaggerating and malingering. He noted that defendant had no history prior to the murder, of mental health treatment and was of the opinion that it was improbable that a condition of insanity had taken control of his actions on the evening of the murder. He reviewed the videotaped sessions during which defendant was under hypnosis and continued to be of the opinion that defendant was able to appreciate the wrongfulness of his conduct and conform his conduct to the requirements of the law. His diagnosis was borderline personality disorder with a chronic history of drug and alcohol abuse. He found no evidence of multiple personality disorder or psychosis.
Dr. Zillur Athar, a forensic psychiatrist in private practice, saw defendant at MTMHI as a member of a treatment team, consisting of a psychiatrist, a psychologist, a social worker and a nurse. He testified that multiple personality disorder is a very rare condition, that usually manifests itself in late adolescence and, according to the literature, 90 percent of the persons diagnosed as having that affliction are females. He had only seen three persons with that condition, all of whom were females. He described multiple personality disorder as a condition where the physical body belonged to two or more distinct, well-integrated personalities, each with a separate set of memories that the other is completely unaware of, a total amnesia about the other personalities. He was of the opinion that defendant was a malingerer with a borderline personality disorder. He testified that defendant’s actions and descriptions of the personality “Death” or “Power” does not fit the multiple personality definition, nor was he psychotic. Dr. Athar had studied the tapes of two hypnotic interviews of defendant and testified that he saw nothing to indicate to him that there was a personality separate from “Sedley.”
Two other members of the evaluation and treatment team at MTMHI reached similar conclusions to those of Dr. Crad-dock and Dr. Athar. Dr. William Brooks, a psychiatrist, and Dr. Lynne Zager, a clinical psychologist, both of whom had examined defendant at the Midtown Mental Health Institute in Memphis, testifying for the State, found no evidence of multiple personality or psychosis or any condition that would support an insanity defense. Their diagnosis was borderline personality disorder, mixed substance abuse and malingering. Dr. Ray Gentry, a clinical psychologist, gave similar testimony.
There was a great deal of lay testimony of significance on the issue of defendant’s sanity. His behavior when he was in custody around midnight on 11 July, was described as normal and his responses to questioning about a possible kidnapping as reported by the two Marines was so coherent and believable he was not detained. There was testimony that he engaged in bizarre behavior just before he knew he was to meet with the team of mental health professionals to evaluate him. The expert testimony that defendant was not insane under the standard of Graham v. State, 547 S.W.2d 531 (Tenn.1977), was strong and impressive and this Court is satisfied that the State proved defendant’s sanity at the time of the offense, beyond a reasonable doubt and in full compliance with the mandates of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and Tenn.R.App.P. 13(e).
Defendant contends that the trial judge erred in allowing the introduction of evidence of the character, accomplishments, etc. of the victim and members of her family. The testimony objected to was that of the victim’s father, John Collins. Mr. Collins testified that he was retired after 21 years in the U.S. Foreign Service, Department of State, had served in Greece, Syria, Sweden, Japan, Korea and the Philippines. He testified that his son was an honor student at the University of Virginia, that Suzanne’s career objective was to be selected from the fleet for Annapolis and to fly jet planes. He described her sports and church activities and her work with handicapped children. She was described as “completely open”, generous with her time, “giving” and “a genius for making friends.” His testimony included statements about the family’s final Christmas holiday together, their last phone call to Suzanne and their decision to have a closed casket funeral. Defendant’s counsel made a timely objection that was overruled when the State represented to the trial judge that the defendant would show through his statement that the victim, “wrongly got in the car” and that one of the defenses to the offense of rape and kidnapping would be consent. The prosecution insisted that they were entitled to show the victim’s character was inconsistent with consent. This Court has several problems with the State’s position on this issue. First, as we read defendant’s statement it would not factually support the defense of consent to either rape or kidnapping. Second, it was certain at the time of John Collins’ testimony that defendant’s principal defense was insanity and the additional defense of consent would have been ill-advised if not inconsistent. Third, John Collins’ testimony went beyond merely giving the jury insight into Suzanne’s character, and specifically included the effect of the crime on the family.
Defendant insists that the testimony of John Collins injected an arbitrary factor into the sentencing decision in violation of the Eighth Amendment to the U.S. Constitution. He relies upon Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). A Maryland statute required that a pre-sentence investigation by the Division of Parole and Probation also include a Victim Impact Statement (VIS) describing the effect of the crime on the victim and family. At the sentencing hearing defendant Booth’s motion to suppress the VIS was overruled, the prosecutor agreed to read the VIS report as prepared by an official of the Division of Parole and Probation based upon interviews of the victim’s family, rather than call family members to testify in person.
The Court summarized the contents of the VIS as follows:
The VIS in Booth’s case was based on interviews with the Bronsteins’ son, daughter, son-in-law, and granddaughter. Many of their comments emphasized the victims’ outstanding personal qualities, and noted how deeply the Bronsteins would be missed. Other parts of the VIS described the emotional and personal problems the family members have faced as a result of the crimes. The son, for example, said that he suffers from lack of sleep and depression, and is “fearful for the first time in his life.” App. 61. He said that in his opinion, his parents were “butchered like animals.” Ibid. The daughter said she also suffers from lack of sleep, and that since the murders she has become withdrawn and distrustful. She stated that she can no longer watch violent movies or look at kitchen knives without being reminded of the murders. The daughter concluded that she could not forgive the murderer, and that such a person could “[njever be rehabilitated.” Id., at 62. Finally, the granddaughter described how the deaths had ruined the wedding of another close family member, that took place a few days after the bodies were discovered. Both the ceremony and the reception were sad affairs, and instead of leaving for her honeymoon, the bride attended the victims’ funeral. The VIS also noted that the granddaughter had received counseling for several months after the incident, but eventually had stopped because she concluded that “no one could help her.” Id., at 63.
The DPP official who conducted the interviews concluded the VIS by writing:
It became increasingly apparent to the writer as she talked to the family members that the murder of Mr. and Mrs. Bronstein is still such a shocking, painful, and devastating memory to them that it permeates every aspect of their daily lives. It is doubtful that they will ever be able to fully recover from this tragedy and not be haunted by the memory of the brutal manner in which their loved ones were murdered and taken from them. Id., at 63-64.
107 S.Ct. at 2531-32
The Court said that the VIS provided the jury with two types of information that was irrelevant to a capital sentencing decision that created, “a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner.” Id. at 2533.
The two types of irrelevant information were:
First, it described the personal characteristics of the victims and the emotional impact of the crimes on the family. Second, it set forth the family members’ opinions and characterizations of the crimes and the defendant.
Id.
There are significant distinctions between Booth and the instant case. The VIS in Booth was read at the sentencing hearing. In this case, Mr. Collins testified during the guilt-innocence phase of the trial six days before the sentencing hearing began. Nothing occurred at the sentencing hearing that directly called the jury’s attention to the fact that Mr. Collins’ victim impact testimony was relevant to sentencing. The scope of the statement in Booth was more extensive and significantly more inflammatory than that of Mr. Collins. Also of the two types of information condemned in Booth, Mr. Collins’ testimony was limited to the first type, to wit, the personal characteristics of the victim and the emotional impact of the crime on the family. His testimony did not include family members opinions and characterizations of the crimes and the defendant.
The trial judge erred in failing to sustain defendant’s objection at the time it was made, but in our opinion the erroneously admitted evidence, preceding the sentencing phase of the trial by six days and although irrelevant to either phase of the trial was not inflammatory and did not create a constitutionally unacceptable risk of arbitrary or capricious imposition of the death penalty. Finally, we are of the opinion that the error did not affect the sentence and that it was harmless beyond a reasonable doubt. Defendant’s guilt in this case was established at the level of absolute certainty.
Defendant also contends that the trial judge erred during voir dire in allowing the State, over defendant’s objection, to question a prospective juror, Janie Hearn, as to whether her views on the death penalty would give the victim’s parents, Mr. and Mrs. Collins, a fair trial. Juror Hearn did not serve as a juror and the record before us does not indicate that any other juror was asked such a question. The question asked Ms. Heard was immediately followed by the statement that, “the entire State of Tennessee has an interest that justice be done” — which was a proper reference that tended to diminish the emphasis on “justice for the victim’s family.” While we agree with defendant that the reference to giving the victim’s parents a fair trial is irrelevant and should be avoided, particularly in a capital case, the single reference in this case falls far short of prejudicial error.
Next defendant contends it was error for the trial judge to allow over defendant’s objection a 16-inch by 20-inch photograph of the victim at the time of her high school graduation to remain upright before the jury’s view, “during the entire first day of testimony.” The record in this Court reveals that no objection was voiced by defendant until the end of the first day, at which time it was overruled. On the morning of the third day of trial the court directed the State to substitute a small photograph for the 16 by 20, which apparently satisfied defendant’s objection. The record does not reflect how the large photograph was displayed during the second day of trial, and this issue is without merit.
Defendant contends it was error to allow Deborah Richardson, a social worker, to testify about the characteristics of a multiple personality disorder, specifically that the person would have no knowledge of other personalities, cannot see other personalities outside himself, cannot have personalities that change over time and cannot have personality changes triggered by stress.
Deborah Richardson had a Master’s Degree in social work and was certified by the Tennessee Board of Social Worker Certification and Licensure, to assess patients’ mental status and behavior, to make diagnoses, to write social histories, to develop psycho-social assessments and to perform psychotherapy. At MTMHI she gathered the patient’s history, collected and reviewed all relevant information on a patient, kept up with the patient’s daily status and presented this information to the psychiatrist and psychologist on the treatment and evaluation teams. She had been trained to distinguish data and material important in making a diagnosis of multiple personality and had worked on defendant’s case. It was part of her duty in working on defendant’s case to inform the psychologist and psychiatrist of her observations that were consistent or inconsistent with the characteristics of a multiple personality disorder. It was for this reason as insisted by the State that the trial judge allowed her to testify as she did and we find no error in the allowance of her testimony. Insofar as she may have encroached on the realm of the experts in stating the characteristics of a multiple personality disorder that testimony was cumulative of that given by the State’s psychologist and psychiatrist, and the information she imparted was necessarily acquired from those experts she was assisting.
Defendant contends that Deborah Richardson should not have been allowed to testify that the bulk of the information found in the defendant’s letters was, “supportive of malingering” and consistent with a borderline personality, or that the letters indicated to her that the defendant knew right from wrong. The witness read excerpts from the letters upon which she based her testimony. While her testimony about the diagnosis may have also infringed upon the realm reserved for expert testimony, in the light of the massive amount of testimony by qualified experts expressing the same opinion she had expressed and the fact that the letters themselves were read to the jury so that they could reach their own conclusions, any error was harmless beyond a reasonable doubt.
Defendant also complains about some of the testimony of David Hawkins. He was a psychiatric technician whose job it was to observe and document the defendant’s behavior while at MTMHI. On cross-examination, over objection, Hawkins testified that he thought defendant was malingering and that he did not act like persons who were really insane. A lay person can give his opinion on the issue of sanity. Edwards v. State, 540 S.W.2d 641 (Tenn.1976), cert. denied 429 U.S. 1061, 97 S.Ct. 784, 50 L.Ed.2d 777 (1977). There is no merit to this issue.
Defendant contends that prejudicial error was committed by the State in the manner in which it used so-called learned treatises in cross-examining Dr. Allen Battle.
Defendant acknowledges the use that may properly be made of learned treatises, to wit, to test the expert’s knowledge and accuracy on the subject matter involved in the case by reading from standard authorities, asking if the witness agrees or disagrees and comparing his opinion with that of the writer of the treatise. See McKay v. Mitchell, 62 Tenn.App. 424, 463 S.W.2d 710, 720 (1970). Here, defendant insists that the prosecutor went beyond reading for the purpose of comparing Dr. Battle’s opinions with authors and presented to the jury irrelevant and prejudicial information concerning two similar notorious cases in which the defendants had been determined to have been faking multiple personalities.
We have carefully studied the pages of the transcript that are the subject of defendant’s complaint and we cannot agree that irrelevant and prejudicial information was presented to the jury. On direct examination Dr. Battle had expressed the opinion that defendant had a multiple personality disorder and that he was not faking or malingering. On cross-examination the prosecutor read from an article in the International Journal of Experimental Hypnosis, Yol. 32 (1984) by Corbett Thig-pen, the expert in the famous case of The Three Faces of Eve. Dr. Battle acknowledged that he was familiar with Thigpen and the two cases discussed in the article, State v. Milligan (1978) and the Bianchi Hillside Strangler case. The prosecutor read various excerpts from the article for the purpose of determining whether Dr. Battle agreed or disagreed with conclusions expressed therein, that multiple personality disorders were rare, that there was a tendency to ignore or underestimate “secondary gain” as a motivation for manifesting multi-personality after a person has been charged with criminal activity, and the difficulty of accurate diagnosis of mul-ti-personality where there was no history of psychotherapy or amnesia prior to the criminal charges. Clearly, all of those concerns were legitimate areas of cross-examination and of inquiry into Dr. Battle’s views as contrasted with those expressed in the Thigpen article. Dr. Battle expressed agreement with almost all of the excerpts read by the prosecutor. However, he responded to an excerpt about the Milligan case wherein the writer expressed the opinion that Milligan’s, “deliberate manipulation resulted in a gross miscarriage of justice and denigration of psychiatry ...” with the observation that he was experienced in observing malingering and believed it would be difficult to fake multi-personality, “it would be much easier to malinger, let’s say, schizophrenia ... than multiple personality.”
The only portion of the excerpts from the article that could be classified as inflammatory were the quote in the preceding paragraph and an excerpt in which a psychologist who misdiagnosed the Hillside Strangler said that a person under threat of death is not bound by any rules of conduct involving honesty, decency or fair play— the only rule is to save his own skin. No objection was made nor any curative instruction sought, nor any redaction requested with respect to either. Both statements by qualified experts were relevant to the malingering issue, and in the context of the entire cross-examination and Dr. Battle’s responses we find no error.
Defendant contends the trial judge erred in granting the State’s motion in li-mine, to exclude the videotaped hypnotic and sodium amytal interviews from the jury’s consideration. Dr. Battle testified at the hearing, out of the presence of the jury, that he was a licensed clinical psychologist and had extensive experience in the area of hypnosis; that in the area of multiple personality disorders, hypnosis is a method of choice in arriving at a diagnosis. He testified that he performed hypnosis upon defendant in accord with well recognized principles in that field, that the sessions were videotaped, and that in his opinion viewing the tapes would be helpful to the jury because he could not explain the nature of a multiple personality disorder, “as well as could be obtained by anyone by seeing it in the flesh, so to speak.” He said that viewing the tapes would aid the jury in understanding his diagnosis and he could explain to the jury the pitfalls of the use of hypnosis and that it was possible to lie under hypnosis.
Dr. William Gentry testified at the in limine hearing that there were pitfalls in the use of hypnosis and that in his opinion juries tended to give hypnotic testimony too much weight and they did not understand that a person may lie under hypnosis. He testified that hypnosis was a legitimate tool for treatment of a multiple personality but that it was often seen as magical, mystical; that it was regarded as possessing properties beyond the actual ability of the tool; that the hypnotic state produces a variety of levels of altered consciousness which must be understood from a clinical perspective and cannot be understood from a lay perspective without significant training in that area.
The trial judge viewed the tapes and found them to be sensational, the defendant to be untruthful and the tapes unreliable and granted the State’s motion. Specifically, he ruled that the tapes could not be shown to the jury and the witnesses could not testify as to, “the words and actions of the defendant during the course of these interviews.” He permitted the witnesses to say that interviews were conducted, however, and all of the witnesses who viewed the videos were permitted to so testify and express their opinions with respect to whether multiple personalities were revealed during the sessions. This Court has not heretofore ruled upon this issue. The general rule appears to be that audio or video tapes recording a defendant’s statements and conduct while under hypnosis or truth serums, when offered as evidence of the basis of an expert’s opinion as to the defendant’s mental condition, may be admitted or excluded in the exercise of the trial court’s discretion after weighing the probative value of the tape as part of the basis for the expert’s opinion, against the risk that the tape might confuse or mislead the jury or be improperly considered as independent proof of the facts recited and shown therein. Where the tepes are not admitted the admission of testimony of the details of what the defendant said while under hypnosis or truth serum is likewise within the trial court’s discretion. See Annotation, Admissibility of Hypnotic Evidence, 92 A.L.R. 3d 442 § 9 (1979); State v. Garcia, 233 Kan. 589, 664 P.2d 1343 (1983); Eaton v. State, 394 A.2d 217 (Del.1978); People v. Myers, 35 Ill.2d 311, 220 N.E.2d 297 (1966); People v. Modesto, 59 Cal.2d 722, 31 Cal.Rptr. 225, 382 P.2d 33 (1963); State v. White, 60 Wash.2d 551, 374 P.2d 942 (1962); People v. Diaz, 644 P.2d 71 (Colo.App.1981); Tripp v. State, 36 Md.App. 459, 374 A.2d 384 (1977); People v. Hiser, 267 Cal.App.2d 47, 72 Cal.Rptr. 906 (1968).
Upon viewing the tapes, the validity of Dr. Gentry’s testimony about the mystical quality of and sensational nature of the hypnotic state is confirmed. We are of the opinion, as was Dr. Gentry, that a jury of laymen could not understand and interpret the hypnotic tapes reliably. The experts who were most favorable to defendant, Dr. Marshall and Dr. Battle, were allowed to testify that they conducted and observed the videos with defendant under hypnosis and saw personalities other than “Sedley” that were in control. In our opinion allowing the jury to view the tapes would have confused and misled them and the trial judge properly granted the State’s motion. Defendant’s contention that the trial judge’s ruling was in violation of Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) is incorrect. In Rock the court held that defendant’s right to testify was violated by a per se rule excluding all of defendant’s hypnotically refreshed testimony because such testimony is always unreliable. The trial judge stated that he had read the cases cited to him and the annotation at 92 A.L.R.3d 442 and he proceeded to weigh the probative value against the prejudicial effect. Rock did not preclude the use of unreliability as a factor in that weighing process, only its use as a per se rule, in all circumstances.
Defendant contends the trial judge erred r in refusing to allow the video tapes to be played at the sentencing hearing. Defendant says the tapes were relevant to the mitigating circumstances in T.C.A. § 39-2-203(j)(2), defendant under the influence of extreme mental and emotional disturbance, and 0(8) substantial impairment of defendant’s appreciation of the wrongfulness of his conduct or to conform his conduct to the requirements of the law as a result of a mental disease, defect or intoxication, insufficient to establish a defense to the crime. There is no evidence whatever on the tapes of defendant’s mental or emotional state or his ability or lack of ability to appreciate right from wrong or control his conduct on the evening of 11 July 1985. Both of the mitigating circumstances relied upon by defendant require evidence of defendant’s condition at the time the crime was committed. The facts that dictated the exclusion of the tapes at the guilt and innocence phase were equally applicable at the sentencing phase.
Defendant says the trial judge erred in admitting photographs of the victim’s body, taken at the scene of the crime. The complaint of defendant focuses on the badly beaten face of the victim and the stick protruding from the victim’s vaginal area. The State submitted seven photographs to be shown to the jury. The trial judge held one of them, showing body fluids oozing from the nose and mouth, inadmissible. We cannot say that the trial judge abused his discretion in admitting the other six photographs, under the principles expressed in State v. Banks, 564 S.W.2d 947 (Tenn.1978).
Defendant complains that the trial judge erred in allowing, “proof of another crime.” The State proffered evidence at a jury-out hearing that during the work day of 11 July 1985 defendant had assisted his employer in installing a vacuum pump and gauges at the Admiral’s house on the Navy Base near the area where the victim was jogging. On 12 July defendant’s employer returned to the Admiral’s house and found the equipment missing. The pump and gauges were observed in defendant’s station wagon by the officers when he was stopped on the night of 11 July. On 12 July after the body was found defendant’s home was searched and the missing pump and gauges were found in a back yard shed. It was the State’s position that the evidence was relevant on the issue of defendant’s motive for the kidnapping and murder; that the jury could infer that defendant had parked his automobile near the Admiral’s house, stolen the equipment and was observed by the victim in returning it to his car and further that he was in an area at a time and place that he denied being. We find no evidence to support the latter portion of that contention. The trial judge gave a curative instruction that the jury could consider the fact, if they so found, that the defendant had the pump and gauges in his possession but were not to consider whether he had stolen those items since he was not on trial for that offense. This evidence was properly admitted under the guidelines of State v. Parton, 694 S.W.2d 299 (Tenn.1985); Bunch v. State, 605 S.W.2d 227 (Tenn.1980); and Wrather v. State, 179 Tenn. 666, 169 S.W.2d 854 (1943).
Defendant contends that the trial judge erred in excusing prospective jurors Kenneth Todd and Leslie J., for cause, and in refusing to allow defendant to voir dire said jurors. Defendant says that juror Todd stated that he had strong feelings regarding the death penalty but whether he could impose it, “depended on the crime;” that juror J. stated that he would spend a lot of sleepless nights over it, but he thought he could consider the death penalty.
Our reading of the record reveals that Todd stated that, “Being a part of this man killed — would bother me.” He said he could not give the death penalty and that wondering whether he could, “give this guy the death penalty” would be on his mind the whole trial so that it would affect his ability to pay attention. Later he stated that under no set of circumstances would he invoke the death penalty. The exclusion of prospective juror Todd clearly conformed to the standards of Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).
Prospective juror J. at first indicated that he thought he could follow the law and give consideration to the death penalty but that his mind would not rest easy on a sentence of death. Later he said he would spend a lot of sleepless nights and was not sure his mind could rest easy giving the death penalty. The trial judge asked the final question of Mr. J., whether he could follow the law and, “consider the death penally, as well as the alternate punishment, which is life.” J.’s response was, “I’m not sure that I could.” At that point a bench conference was held out of the hearing of the prospective jurors. After the lawyers spent several pages arguing whether or not the prospective juror’s responses indicated he could follow the law and whether his mind could rest easy on giving the death penalty, the trial judge said, “Well, in viewing the juror as I sit here on the bench, he’s having a very difficult time dealing with the questions.” Whereupon the trial judge announced his intention to excuse Mr. J. for cause. Defendant objected to excusing J. without allowing them to voir dire him. The trial judge asked for authority that defendant was entitled to voir dire under those circumstances. When no case was forthcoming the juror was excused. Here, the State relies upon State v. Strouth, 620 S.W.2d 467 (Tenn.1981) to justify the trial judge’s action in dismissing J. and denying defendant the opportunity to rehabilitate him. In Strouth this Court said that during the voir dire of Mrs. Penley she repeatedly and unequivocally told the trial judge she would automatically vote against the death penalty, whatever the evidence. We said, “Her statements left no leeway for rehabilitation, and left the trial judge with no alternative but to disqualify her ‘for cause’.” Id. at 471. The questioning of Mr. J. by the prosecution and the trial court had not reached the point that left no leeway for rehabilitation and therefore Strouth is not applicable here.
The issue we must decide is whether the dismissal of Mr. J. for cause was appropriate under the dictates of Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). In that case the U.S. Supreme Court adopted the following standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment: “[w]hether the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ”
The Court then noted that that standard, taken from Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), dispensed with Witherspoon’s reference to “automatic” decision-making and abandoned Witherspoon’s requirement that a juror’s bias be proved with “unmistakable clarity.”
Of particular significance to the issue under consideration here, the Wainwright Court held that a trial judge’s determination that a prospective juror may be excluded for cause because of his views on capital punishment is a finding on a factual issue and must be accorded the presumption of correctness under 28 U.S.C. § 2254(d).
The trial judge is of course applying some kind of legal standard to what he sees and hears, but his predominant function in determining juror bias involves credibility findings whose basis cannot be easily discerned from an appellate record. These are the “factual issues” that are subject to § 2254(d).
105 S.Ct. at 855.
We are not bound to adopt the same standard of review of a trial judge’s action in the circumstances under discussion, but we cannot adopt a standard that provides less protection of defendant’s in capital cases. See Leech v. American Booksellers Ass’n., 582 S.W.2d 738, 745 (Tenn.1979). We think it appropriate to adopt the same standard of review prescribed in Wainwright, to wit, the trial court’s finding of bias of a juror because of his views of capital punishment shall be accorded a presumption of correctness and the burden shall rest upon the appellant to establish by convincing evidence that that determination was erroneous. !
Applying that standard to the trial judge’s ruling with respect to Mr. J. we conclude that defendant has failed to establish by convincing evidence that the court’s action was erroneous. The questioning by the prosecuting attorney produced ambiguous results, and the trial judge’s refusal to allow defendants to voir dire the prospective juror when there appears to have been “leeway for rehabilitation” are matters of grave concern to this Court in resolving this issue. However, we agree with the Wainwright Court that, “determinations of juror bias cannot be reduced to question and answer sessions which obtain results in the manner of a catechism.” 105 S.Ct. at 852.
In State v. Harrington, 627 S.W.2d 345 (Tenn.1981) we reversed the sentence of death and remanded for a new sentencing hearing upon our finding that the trial judge had erroenously excluded a single juror for cause in violation of the Witherspoon standard. Harrington was decided four years before Wainwright and on the juror bias issue is no longer of precedential value.
The defendant, relying upon the dissent in State v. Dicks, 615 S.W.2d 126 (Tenn.1981), contends that the death penalty is in all circumstances unconstitutional. He adds that the evolving standards of decency in this State no longer support the infliction of the death penalty and that it does not conform with contemporary moral standards. No additional Eighth Amendment arguments are presented and we find the issue of the death penalty as appropriate punishment for first degree murder within the mandates of the U.S. Supreme Court to be purely a legislative matter.
Defendant asserts that prejudicial error was committed by reference to the Bible during the State’s cross examination of defendant’s brother. The prosecutor said to John Alley, Sr., defendant’s brother, “You would do anything you could to help your brother, wouldn’t you?” The witness responded that he wouldn’t lie because he was, “saved and baptized” and he was asked if he believed all the tenets of the Bible and had read the Old Testament, to which he responded affirmatively. He was then asked the following question: “Do you remember the part where it says: ‘He who shall smiteth a man down so that he die shall be put to death.’ ” The witness said that he had heard that. Defendant did not make a contemporaneous objection and, if error, it was of such insignificance that it could not possibly have had any effect upon the sentence.
Defendant contends the prosecutor was guilty of misconduct in asking his brother if defendant had been in trouble with the law when they were living together in Ypsilanti, Michigan.
John Alley, Sr., testified at the sentencing hearing about the good character of defendant; that he had never had a problem with drugs nor engaged in heavy drinking during that period. On cross-examination he was asked what kind of trouble Sedley got into with the law in Ypsilanti. The witness said he did not recall, and was then asked, “He didn’t have an assault charge up in Ypsilanti, Michigan?” The witness responded that it was kept from him if defendant did. He was then asked: “Do you remember him getting in fights up there?”.
Defendant says that he raised this issue on motion for new trial and asserted that no such charges existed and the State’s response did not claim any charges existed in Ypsilanti. In this Court the State does not assert that any such charges existed. Thus, the only conclusion this Court can draw is that the prosecution questioned defendant’s brother about criminal charges having been brought against defendant in Ypsilanti, Michigan, knowing that no such charges existed. Such conduct is reprehensible, unprofessional and will not be tolerafc-ed by this Court, and should not be tolerated by any trial court.
The State’s response to defendant’s contention that this inexcusable conduct was reversible error is that defendant opened the door by testifying on direct examination about defendant’s good character and good conduct in Ypsilanti. The State is mistaken. Nothing opens the door for the calculated use of questions based on false and non-existent charges. In Delk v. State, 590 S.W.2d 435 (Tenn.1979) we condemned the calculated use by prosecutors of questions for the purpose of planting in the minds of the jury the suggestion of the existence of damaging evidence against the defendant that except for some mysterious technicality would have been more fully adduced, when it was known that such evidence did not exist Id. at 439.
Turning to the question of reversible error and applying the factors set out in State v. Buck, 670 S.W.2d 600 (Tenn.1984), we conclude that the error, though reprehensible, was not reversible.
We have carefully reviewed this case in accord with the requirements of T.C.A. § 39-2-205(c) and find that the sentence was not imposed in any arbitrary fashion, that the evidence supports the jury’s findings of the aggravating circumstances in T.C.A. § 39-2-203(i)(5) and (i)(7), the absence of any mitigating circumstances and that the sentence of death was not disproportionate to the penalty in similar cases.
The convictions and sentences imposed in the trial court are affirmed. Unless stayed by proper authority, the sentence of death will be carried out as provided by law on the 13th day of November, 1989.
DROWOTA, C.J., and HARBISON, COOPER and O’BRIEN, JJ., concur.
The forensic pathologist testified that she did not have an injury to her head inflicted in the manner or means described by defendant, nor did she have any injuries that could have been caused by being struck by an automobile.
Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
Sedley ALLEY, Appellant, v. STATE of Tennessee, Appellee.
Court of Criminal Appeals of Tennessee, at Jackson.
April 20, 1994.
No Permission to Appeal Applied for to the Supreme Court.
Arthur E. Quinn, Timothy R. Holton, Memphis, for appellant.
Charles W. Burson, Atty. Gen. & Reporter, Joel W. Perry, Asst. Atty. Gen., Nashville, John W. Pierotti, Dist. Atty. Gen., Henry P. Williams, John W. Campbell, Chris B. Craft, Asst. Dist. Attys., Memphis, for appel-lee.
OPINION
WHITE, Judge.
Appellant, Sedley Alley, appeals as of right from the dismissal of his petition for post-conviction relief by the Shelby County Criminal Court. On March 18,1987, appellant was convicted of and sentenced to death for the brutal killing of nineteen year-old Suzanne Marie Collins, a Marine lance corporal stationed at Millington Naval Base. Appellant also received consecutive forty-year sentences for aggravated kidnapping and aggravated rape. On August 7,1989, the Supreme Court of Tennessee affirmed the verdict in State v. Alley, 776 S.W.2d 506 (Tenn.1989) and, on February 21, 1990, ordered that his execution be carried out on May 2, 1990. On April 25, 1990, appellant filed a pro se petition for post-conviction relief. ■ Counsel was appointed, and, after a series of hearings in which the trial court ruled on various defense motions, evidentiary hearings were held on March 1st and 15th and April 5th, 26th, and 29th, 1991. On September 28, 1991, the trial court entered findings of fact and law denying the petition for post-conviction relief.
Appellant raises ten issues on appeal. Five issues are related to the allegations raised in the post-conviction petition: ineffective assistance of counsel, unconstitutional jury instructions, prosecutorial misconduct, unconstitutionality of the death penalty, and other trial errors. Five issues concern post-conviction hearing procedures and allege that the trial court erred in:
1. disallowing appellant an opportunity to make an offer of proof regarding the deficiencies in the medical and psychological evaluations at trial; (Issue V)
2. denying appellant an opportunity to introduce evidence regarding the deficiencies in the medical and psychological evaluations at trial; (Issue IV)
3. denying appellant a full and fair hearing on all available grounds for relief; (Issue VI)
4. failing to recuse himself; (Issue I) and,
5. denying appellant funds to retain an expert to review the medical records and conduct an analysis of appellant’s medical conditions. (Issue III)
Since our conclusion is that this ease must be remanded to a different trial judge for further proceedings, we will not, at this time, address the substantive issues raised by appellant in his post-conviction petition. Some background information about the trial is necessary, however, to understand the issues that arose during the post-conviction proceedings.
At trial, appellant raised an insanity defense. Two medical experts, Dr. Allen Battle, a clinical psychologist with considerable experience with multiple personality disorders, and Dr. Willis Henry Marshall, a psychiatrist at Middle Tennessee Mental Health Institute, testified that appellant suffered from a multiple personality disorder. According to trial counsel, Dr. Battle was prepared to testify that when Alley murdered Collins, a personality other than the personality known as “Sedley” was in control and that the controlling personality was legally insane. However, approximately two weeks prior to trial, after a meeting with the prosecutor, Dr. Battle told defense counsel that he was no longer certain that a psychotic personality was in control at the time of the killing. Because he was not certified to give opinions of legal sanity or insanity in Tennessee, at trial on cross-examination, Dr. Battle stated that he could not testify that appellant was insane at the time of the murder. Dr. Marshall testified that appellant was suffering from a multiple personality disorder and that there was some evidence that a psychotic personality named “Power” was in control at the time of the murder.
The state presented expert testimony from Dr. Sam Craddock, a clinical psychologist from Middle Tennessee Mental Health Institute and Dr. Zillur R. Athar, a forensic psychiatrist in private practice. They diagnosed appellant as borderline personality with mixed substance abuse and malingering. Dr. William Brooks, III, a psychiatrist with Midtown (Memphis) Mental Health Institute and Dr. Lynne Zager, a clinical psychologist, found that appellant did not exhibit multiple personalities. Dr. William Gentry, Jr., two social workers, and a psychiatric technician also testified. None of the various state’s experts supported an insanity defense.
I. Exclusion of Testimony
On post-conviction, appellant contends, among other allegations, that trial counsel was ineffective in the selection and use of experts, that counsel failed to provide the records and other information required by the experts, that counsel failed to communicate with the experts, and that, as a result, counsel did not develop a cohesive theory of defense and consequently, employed a fatally flawed trial strategy.
In its order entered July 16,1991, the trial court, relying upon federal ease law, excluded the testimony of those psychiatric witnesses who testified at trial from the post-conviction hearing. The trial court reasoned that the performance of an expert witness is not a proper basis for post-conviction relief as the constitutional umbrella does not include the competency of expert witnesses. Moreover, the trial court denied counsel’s request to present an offer of proof “since further inquiry into the performance of the psychiatric experts as a basis for post-conviction relief would be delving into an area that does not give rise to a constitutional violation.”
On appeal, appellant contends that the trial court erred in denying him an opportunity to make an offer of proof. (Appellant’s issue IV). Appellant argues that Rule 103(b) of the Tennessee Rules of Evidence requires a court excluding testimony to permit the making of an offer of proof in question and answer form upon request.
Appellant argues that the testimony excluded by the trial court was relevant to determining whether trial counsel had provided effective assistance of counsel. (Appellant’s issue VI). According to appellant, the testimony would have shown that extensive miscommunication existed between counsel and the experts, that counsel failed to consider and utilize experts in determining whether appellant was able to make a knowing waiver of his Fifth Amendment rights, and that counsel failed to properly prepare the expert by not providing appellant’s complete medical history to them. In addition, appellant argues that, since medical and psychological issues were the focus of the defense, he is unable to demonstrate prejudice as required by the second prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2062, 80 L.Ed.2d 674 (1984), without the excluded testimony.
The state does not refute the merits of these arguments but argues that issues IV and VI were not properly briefed and are, therefore, waived. We do not find that appellant waived either issue. Our court Rule 10(b) provides that “[ijssues which are not supported by argument, citation to authorities, or appropriate references to the record will be treated as waived.” (emphasis added). Appellant’s brief contains six pages of argument relating to issues IV and VI. Those pages contain numerous references to the record. Rule 103(b) of the Tennessee Rules of Evidence is cited. In addition, to support his contention that he failed to receive a full and fair hearing of all available grounds for relief, appellant argues that he is unable to comply with the Strickland requirements absent this proof. Appellant has adequately briefed this issue pursuant to Rule 10(b). We will, therefore, consider the merits.
The trial judge first denied counsel’s request to present an offer of proof in the evidentiary hearing held on April 29, 1991. The following exchange between appellant’s counsel and the court took place:
MR. QUINN: Well, your Honor, You’re cutting us off on getting Dr. Battle up here to testify about whether he really waffled. If I asked Dr. Battle, well, did you waffle, Dr. Battle—
THE COURT: What do you think a man with his ego would say? Listen, I know exactly.
MR. QUINN: And, Your Honor is ruling out, You are precluding us from getting into that. And even if You do stick with your ruling, Your Honor, we—
THE COURT: You are asking for an offer.
MR. QUINN: An offer of proof, that I think is allowed under the law, and would ask You0 to do it. Now, if Your Honor sticks with this ruling, I don’t know how You want to do it, I’ve seen some Judges actually leave while an offer of proof is being made but—
[Other matters are discussed and later defense counsel asks the court to rule on the offer of proof.]
MR. QUINN: With regard to our offer of proof, Your Honor?
THE COURT: That’s denied. I don’t see the need.
The general rule is that “assuming an offer of proof has been seasonably made, it is error for the trial court to refuse to permit counsel to state what evidence he is offering.” 89 A.L.R. “Offer of Proof — Ruling — Error” § 2 at 283 (1963). The purpose of an offer is two-fold. First, the proof informs the trial court what the party intends to prove so that the court may rule intelligently. Id. § 1 at 281. Second, an offer creates a record so that an appellate court can determine whether there was reversible error in excluding the evidence. Id.
In Tennessee, two rules address offers of proof. The applicable evidentiary rule requires appellants who challenge rulings that exclude evidence to make an offer of proof unless the substance of the evidence is otherwise apparent. On appeal, an appellate court may not find that the exclusion of evidence was error unless a party’s substantial right was affected and an offer of proof is contained in the record. Tenn.R.Evid. 103(a)(2). An appellate court may find error where no offer was made if the substance of the evidence and the specific evidentiary basis for admission are apparent from the record. Id. Consequently, though not explicitly stated, it is apparent that courts are required, in appropriate circumstances, to allow offers of proof when evidence is excluded so as to enable consideration of the issue on appeal.
The second applicable rule is found in the Tennessee Rules of Civil Procedure. While obviously not applicable to criminal cases, Tenn.R.Civ.P. 1, the civil rules may be indicative of appropriate procedure. See State v. Goad, 707 S.W.2d 846, 853 (Tenn.1986), infra note 11. Rule 43.03 of the civil rales allows offers of proof when the court excludes proffered evidence. Tenn.R.Civ.P. 43.03.
Tennessee courts have rarely been asked to consider whether refusing to allow offers of proof is error. The dearth of Tennessee cases on the issue suggests, perhaps, that offers are rarely denied. In two pre-Tennes-see Rules of Evidence cases, however, appellate courts were called upon to determine whether error resulted when trial courts denied litigants the opportunity to make offers of proof. In Bray et al. v. State, 2 Tenn.Crim.App. 18, 450 S.W.2d 786 (1969), cert. denied (Tenn.1970), this court reversed a trial judge’s order refusing to allow an offer of proof of an excluded witness’ testimony. More recently, in Raines v. Raines, no number in original (Tenn.Ct.App., Nashville, May 17,1985), the Court of Appeals reiterated the general rule that “where an offer of proof is necessary, it is error for the trial court to refuse an opportunity to counsel to state what he proposes to prove by the evidence offered.” Raines, supra, slip op. at 6 (quoting 88 C.J.S. Trial § 73 (1955)).
The Raines court declined to establish a per se rale requiring reversal in all cases in which an offer had been rejected but held instead:
It is clear that it may be reversible error for a trial judge to refuse to allow a party to preserve excluded evidence, either by oral statement of counsel, stipulation, document or testimony.
Whether such refusal is reversible must depend upon the facts and circumstances of each individual case, including the apparent nature and admissibility of the evidence and its relation to determinative issues.
Where it is obvious that the proffered evidence could not possibly be competent or could not possibly be relevant to the issues, a refusal to encumber the record with such evidence would not be error. Where such incompetence or irrelevance is not obvious, it would be error to exclude from the record any reasonable indication of the competence, relevancy and general import of the excluded evidence.
Id. at 7.
We concur with the reasoning in Raines. In circumstances in which it is obvious from the record that the proffered evidence could, under no circumstances, be relevant to the issues, a trial court’s refusal to grant an offer of proof is not error. However, if the obvious incompetence or irrelevance is not readily apparent from the record, it is error to exclude any reasonable offer which demonstrates the relevance and general import of the excluded evidence.
The reason for such a rale is quite clear. When a party contends that the trial court erred in excluding testimony, the need for a description of that testimony is compelling. Absent such a showing, an appellate court cannot determine whether the exclusion was error, and if error is found, whether the error is harmless.
In State v. Goad, the Tennessee Supreme Court stated:
In order for an appellate court to review a record of excluded evidence, it is fundamental that such evidence be placed in the record in some manner. When it is a document or exhibit, this is done simply by having the exhibit marked for identification only and not otherwise introduced. When, however, it consists of oral testimony, it is essential that a proper offer of proof be made in order that the appellate court can determine whether or not exclusion was reversible.
State v. Goad, 707 S.W.2d 846, 852-53 (Tenn.1986).
Similarly, in Bray, after holding exclusion of testimony to be error, this court stated, “If we were permitted to know what the tendered witness would have testified to, then perhaps the error would have been harmless. But, under this record, we could only speculate; and the trial court, by refusing to allow the tender of proof moved for, makes a reversal ... mandatory.” 450 S.W.2d at 787. Raines also repeated the rationale:
Where appellate review is de novo upon the record, the appellate court must be free to review and revise all evidentiary rulings of the trial court and to decide the issues anew upon that evidence which the appellate court considers admissible. If excluded evidence is not preserved, this procedure cannot be followed. Therefore, it is especially important to preserve all excluded evidence for the consideration of the appellate court. Otherwise, a new trial may be the only just alternative.
Raines, slip op. at 6.
Although, the standard of review in this instance is not “de novo on the record”, the same considerations apply. In post-conviction proceedings, petitioner has the burden of proving the grounds raised in the petition by a preponderance of the evidence. Clark v. State, 800 S.W.2d 500, 506 (Tenn.Crim.App.), perm, to appeal denied (Tenn. 1990). When reviewing the dismissal of a post-conviction petition, this court must affirm the judgment of the trial court unless the evidence in the record preponderates against the judgment. Bratton v. State, 477 S.W.2d 754, 756 (Tenn.Crim.App.1971), cert. denied (Tenn.1972). If the record of a post-conviction proceeding does not contain all evidence that this court may find admissible, we cannot determine whether the evidence preponderates against the trial court’s findings. Nor can we determine whether the trial court erred in excluding evidence that may arguably be relevant to issues raised in the post-conviction proceeding.
Having concluded that it is error to disallow offers of proof when the excluded evidence is not obviously incompetent or irrelevant, we must consider whether specific methods for offers of proof are required. While the rules and cases do not limit offers to a particular method, Rule 103(b) does require that a trial judge “permit the making of an offer in question and answer form.” Tenn.R.Evid. 103(b). Additionally, our Supreme Court has suggested that question and answer offers of excluded testimony are “the better practice.” Farmers-Peoples Bank v. Clemmer, 519 S.W.2d 801, 804 (Tenn.1975); see State v. Goad, 707 S.W.2d 846, 853 (Tenn.1986) (finding counsel’s proffer to be inadequate, but remanding). Thus, not only are question and answer offers such as were attempted in this case appropriate, they are preferred, and the trial court must allow them when appropriately offered. N. Cohen, D. Paine, S. Sheppeard, Tennessee Law of Evidence, § 103.4 at 16 (2d ed. 1990).
The final inquiry is whether the excluded evidence was obviously incompetent or irrelevant so as to allow the denial of the offer of proof. In this case, the trial court correctly ruled that testimony to demonstrate the incompetence or negligence of the experts is inadmissible if presented in lieu of the constitutional issue of ineffective assistance of counsel. Waye v. Murray, 884 F.2d 765 (4th Cir.1989). Such testimony is obviously irrelevant. Consequently, no purpose could be served by permitting an offer of proof if the intent were only to demonstrate the incompetence of the medical experts.
However, all testimony by medical experts under all circumstances is not irrelevant. While several federáis circuits caution against a competence review that would result in a never-ending process with one expert reviewing the competence of a previous expert ad infinitum, these cases in no way preclude the post-conviction testimony of those experts who testified at trial when that testimony is relevant to a constitutional claim of ineffective assistance of counsel. See Har ris v. Vasquez, 913 F.2d 606 (9th Cir.1990); Clisby v. Jones, 907 F.2d 1047, 1049 (11th Cir.1990); Silagy v. Peters, 905 F.2d 986, 1012 (7th Cir.1990). The expert testimony may be relevant to establish counsel’s alleged deficient performance and to establish that prejudice resulted from the deficiency.
In this case, the trial court stated, in its written order excluding the testimony, that appellant intended to show only that he was provided ineffective assistance by these witnesses and, therefore, his lawyers were ineffective for relying on them. We agree with appellant that the trial court took too narrow a view of the claim, which alleged additionally that counsel was ineffective in the use, preparation, and presentation of the expert testimony.
Consequently, the excluded testimony is not obviously incompetent or per se irrelevant. Testimony of what the lawyers did or did not do, provide, or present may well establish deficient performance. The ability of the experts to provide adequate service given counsel’s action or inaction may establish deficient performance as well. Moreover, testimony as to the complete findings of the experts and whether those were fully and adequately set forth for the jury during both the guilt and penalty phases may be essential to establish prejudice resulting from any deficiency.
We find that the inadmissibility of the testimony of these medical experts is not readily apparent from the record. Since the testimony is not obviously incompetent or irrelevant, the court should have allowed counsel to make the requested offers of proof. Absent a record of the proposed testimony, we are unable to say that the exclusion was harmless.
In light of the disposition of appellant’s issue regarding recusal, we need only say that, at a subsequent hearing, the testimony of the medical experts to the extent it is relevant should be admitted. Should the court exclude certain portions, offers of proof shall be allowed in accordance with Rule 103.
II. Recusal
Appellant contends that the trial judge has developed a personal bias against appellant and that the judge decided some of the factual issues and the ultimate result prior to hearing any evidence or argument. In support of his position that the judge was personally biased because of his views on capital punishment and post-conviction proceedings, appellant points to a number of statements made by the judge.
1. Prior to ruling against the stay of execution scheduled for May 2nd, the judge said, “Just a minute. I’ll take it under advisement till May the 3rd.”
2. On the day the petition for relief was filed, the trial court noted, “[A]s I said when I spoke to the Rotary Club some few months ago, the best way to give them bed space — I can give them fifty-seven beds tomorrow, if they’ll just execute some of these people that are already in line for it.”
3. After denying the stay, the trial judge stated, “They better hope the governor answers his phone. Or that it’s not out of order.”
4. In referring to Sedley Alley, the court said, “That’s unusual. He’s never been cooperative with anybody.”
The statements quoted in paragraphs one, two, and three occurred on April 25, 1990, the day the petition was filed. On Thursday, April 26, 1990, after appointing counsel, the trial court set the matter for an evidentiary hearing on Monday, April 30, 1990, over the objections of appellant’s counsel. Since the trial transcript was thirty-four volumes and was filed with the deputy clerk of the Court of Criminal Appeals in Jackson, counsel argued that he would be unable to prepare for an evidentiary hearing in such a short time. Moreover, he would be unable to confer with his client.
Appellant contends that the following statements and facts demonstrate that the trial court had predetermined factual issues in this case prior to hearing any evidence on the matter.
1. Before reading appellant’s pro se petition, the trial judge said, “The Court views this petition simply as some way to delay his execution and obviously that’s what it is. And that’s fine. But I don’t — I just don’t see the need to set it off for months and months and months.”
2. In discussing the necessity for hearing testimony from the trial experts, the court said, “The court’s view of this is, is simply that the number of psychologists and psychiatrists on each side, and some took no position for or against, that this was adequately explored, and I will deny it.”
3. With respect to the preparedness of defense counsel, the trial court stated, “I know how much time they put into this thing. I know exactly what they were doing.... They were as prepared as they needed to be ...
Mr. Jones and Mr. Thompson have never been as prepared as they were on this case.”
4. With respect to allegations of the petition, “But from the Court’s own knowledge at trial, many of these are not founded. When you compare it with the transcript, some of the things that these post-convictions say counsel failed to do, they did in fact do.”
5. After the evidentiary hearing began, appellant’s counsel wanted to go forward with expert proof. Before any proof was introduced, the Court said, “[T]he totality of the circumstances is that they did exactly, as a group what you’re saying that wasn’t done_ And, these doctors conferred as a group, together, about Mr. Alley. It was done exactly, what you’re saying wasn’t done, was done, as a group.”
6.In response to counsel’s argument that Dr. Battle should be permitted to testify at the evidentiary hearing, the court responded, “What do you think a man with his ego would say? Listen, I know exactly.”
In addition to alleging bias and prejudice, appellant contends that the trial judge failed to respect and comply with the law as required by Canon 2 of the Code of Judicial Conduct. Tenn.Sup.Ct.R. 10. Appellant cites the trial judge’s refusal to grant a stay of execution in compliance with Tennessee Code Annotated Section 40-30-109(b) as indicative of this disrespect. Appellant alleges that further disrespect is demonstrated by the trial judge’s response to this court’s stay and continuance, order:
Oh, great. Wonder if [Judge Jones] would like to handle a four page calendar this morning? You know, those are the guys that come down off of the mountain after the battle and shoot the wounded.
The state argues that recusal is required only if a judge’s ability to preside impartially can reasonably be questioned. In this case, the state contends, the issues raised by appellant contain no reasonable basis to question the impartiality of the trial judge.
In the Anglo-American system of justice, the ideal for a judge is one who is “independent of governmental, political, social, economic, or other predisposing influences. The judge can accordingly approach the decision of any question in a case guided solely by legal knowledge and judicial experience and temperament.” Charles W. Wolfram, Modem Legal Ethics 980 (1986). Although this ideal is one that is difficult to achieve, it is a fundamental principle of due process that a judge presiding at trial “must be sufficiently neutral and free of preconceptions about the factual issues to be able to render a fair decision.” Id. at 988. Many years ago, the Tennessee Supreme Court stated:
[I]t is of immense importance, not only that justice shall be administered ..., but that [the public] shall have no sound reason for supposing that it is not administered.
In re Cameron, 126 Tenn. 614, 151 S.W. 64, 76 (1912). If the public is to maintain confidence in the judiciary, it is required that cases be tried by unprejudiced and unbiased judges. 46 Am.Jur.2d “Judges” § 166 (1969). See Roberts v. Bailar, 625 F.2d 125, 129 (6th Cir.1980).
When a motion to recuse is made, a judge should grant the motion whenever his or her “impartiality might reasonably be questioned.” Code of Judicial Conduct, Canon 3(C), Tenn.Sup.Ct.R. 10, State v. Jimmy D. Dillingham, No. 03C01-9110-CR-319, 1993 WL 22155 (Tenn.Crim.App., Knoxville, Feb. 3, 1993). Tennessee, like many jurisdictions, employs an objective rather than a subjective standard. Thus, while a trial judge should grant a recusal whenever the judge has any doubts about his or her ability to preside impartially, Lackey v. State, 578 S.W.2d 101, 104 (Tenn.Crim.App.1978), cert. denied (Tenn.1979), recusal is also warranted when a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge’s impartiality. State v. Cash, 867 S.W.2d 741 (Tenn.Crim.App.1993).
While Lackey v. State might imply the use of a subjective standard, the Tennessee Supreme Court in 1912 adopted an objective standard. In an eloquent opinion by Justice Neil, the Supreme Court emphasized not only that justice be administered, but that there be no appearance that it is not administered. 151 S.W. at 76. See Leighton v. Henderson, 220 Tenn. 91, 414 S.W.2d 419, 421 (1967) (quoting Cameron with approval).
We have no quarrel with Lackey. When judges doubt their ability to preside impartially or believe that their impartiality is reasonably subject to question, recusal is appropriate. However, pursuant to the language of Tennessee’s Supreme Court in Cameron and Leighton and in accordance with sound ethical principles and the standard set forth in our Code of Judicial Conduct, a trial judge must consider a motion to recuse objectively as well as subjectively.
Since the standards a judge should apply in determining whether recusal is required have not been extensively discussed in Tennessee case law, we look to the law of other jurisdictions to assist us in clarifying this issue. Since 1974, Section 455 of Title 28, United States Code has contained language similar to that found in Canon (3)(C):
(a) Any justice, judge or magistrate ... of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
28 U.S.C.A. § 455(a) (1974) (emphasis added). Federal cases construing this language have held that “[t]he standard now is objective. It asks what a reasonable person knowing all the relevant facts would think about the impartiality of the judge.” Roberts v. Bailar, 625 F.2d 125, 129 (6th Cir.1980). A court should examine the facts alleged by the movant and consider “whether assuming the truth of the facts alleged, a reasonable person would conclude that a particular judge is biased or prejudiced against a particular defendant.” United States v. Baker, 441 F.Supp. 612, 616 (M.D.Tenn.1977). See also United States v. Adams, 722 F.Supp. 408, 412 (W.D.Tenn.1989) (facts must convince a reasonable person that personal bias exists).
While the words “bias” and “prejudice” are central to the determination of whether a recusal should be granted, neither term is defined in Tennessee case law as it relates to the issue of recusal. Generally the terms refer to a state of mind or attitude that works to predispose a judge for or against a party. 46 Am.Jur.2d “Judges” § 167 (1969). Other jurisdictions have elaborated on that decision.
A Missouri court has defined “prejudice” necessary to require recusal as
[T]he attitude of personal enmity towards the party or in favor of the adverse party to the other’s detriment. It is not the mere possession of views regarding the law or the conduct of a party or of his counsel. Prejudice is in the personal sense rather than in the judicial sense. Prejudice refers to a mental attitude or a disposition of the judge towards a party: either a hostile feeling or spirit of ill-will against one of the litigants, or a favoritism toward one of them.
State ex rel. Wesolich v. Goeke, 794 S.W.2d 692, 697 (Mo.App.1990).
Not every bias, partiality, or prejudice merits recusal. To disqualify, prejudice must be of a personal character, directed at the litigant, “must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from ... participation in the case.” Id.; see also United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966); Houston v. State, 565 So.2d 277 (Ala.Crim.App.1990).
Personal bias involves an antagonism toward the moving party, Baker, 441 F.Supp. at 616, but does not refer to any views that a judge may have regarding the subject matter at issue. 46 Am.Jur.2d “Judges” § 167 (1969). Impersonal prejudice resulting from the judge’s background experience does not warrant disqualification. Goeke, 794 S.W.2d at 697. If the bias is based upon actual observance of witnesses and evidence given during the trial, the judge’s prejudice does not disqualify the judge. Jack Farenbaugh and Son v. Belmont Const. Inc., 240 Cal.Rptr. 78, 82, 194 Cal.App.3d 1023, 1032 (1987). However, if the bias is so pervasive that it is sufficient to deny the litigant a fair trial, it need not be extrajudicial. Baker, 441 F.Supp. at 617.
Adverse rulings by a trial court are not usually sufficient grounds to establish bias. State v. Jimmy D. Dillingham, No. 03C01-9110-CR-319, 1993 WL 22155 (Tenn.Crim.App., Knoxville, Feb. 3,1993). Rulings of a trial judge, even if erroneous, numerous and continuous, do not, without more, justify disqualification. Riva Ridge Apartments v. Robert G. Fisher Co., 745 P.2d 1034, 1037 (Colo.App.1987). See also Tackett v. Jones, 575 So.2d 1123 (Ala.Civ.App.1990); Band v. Livonia Associates, 176 Mich.App. 95, 439 N.W.2d 285 (1989).
Often parties allege that comments made by the judge demonstrate bias or prejudice. An expression of opinion of the merits of the ease prior to hearing the evidence is indicative of bias. Kail v. State, 528 N.E.2d 799, 804 (Ind.App.1988). Remarks which suggest that the judge has taken a position favorable or unfavorable to a party also indicate bias. LaBow v. LaBow, 13 Conn.App. 330, 537 A.2d 157, 164 (1988); Brown v. St. George Island, Ltd., 561 So.2d 253, 257 (Fla.1990) (judge who refused to admit affidavit stating, “I wouldn’t believe him anyway,” should be disqualified). Remarks indicating a judge’s personal moral conviction or which “reflect prevailing societal attitudes” are insufficient alone to mandate disqualification. United States v. Norton, 700 F.2d 1072, 1076 (6th Cir.1983); State v. Hawk, 688 S.W.2d 467, 472 (Tenn.Crim.App.1985); State v. Bobby Andrew Higdon, No. 89-41-III, 1990 WL 26772 (Tenn.Crim.App., Nashville, Mar. 15, 1990). Any comments made by the trial court must be construed in the context of all the facts and circumstances to determine whether a reasonable person would construe those remarks as indicating partiality on the merits of the ease. Id.; see also United States v. Adams, 722 F.Supp. at 411-412.
When a trial court’s comments indicate that the judge has prejudged factual issues, Tennessee courts have required disqualification. “In the trial of any lawsuit the judge must be careful not to give an expression to any thought, or to infer what his opinion would be in favor or against either of the parties in the trial.” Leighton, 414 S.W.2d 419, 420 (Tenn.1967). In Leighton, the Tennessee Supreme Court reversed and remanded for new trial a case in which the trial court stated, among other things, “I don’t care what proof is in the record, if the Governor doesn’t pardon this man, I am going to grant the petition....” Id. The Leighton court quoted with approval language in In Re Cameron:
Beyond question it is not according to due course of law to compel a man over his protest to try his case before a judge who has already decided it, and has announced that decision in advance of the hearing. It is equally true that such compulsion is a denial of justice.
Id. at 421 (quoting In re Cameron, 126 Tenn. 614, 151 S.W. 64, 77 (1912)). The comments must reflect more than insensitivity and lack of sympathy on the part of the judge. State v. Bobby Andrew Higdon, No. 89 41-III, 1990 WL 26772 (Tenn.Crim.App., Nashville, March 15, 1990). Prior knowledge of facts about the case is not sufficient in and of itself to require disqualification. Baker, 441 F.Supp. at 618.
In the case before us, it is not clear from the trial court’s Order Denying Petition for Recusal whether the judge considered whether his impartiality might reasonably be questioned under an objective standard. The trial court concluded only that there was no compelling reason to transfer the petition to another court. When considering a motion to recuse, a trial court must consider more than whether or not the judge has a personal bias against the movant. In Cameron, the Tennessee Supreme Court stated not only that “justice shall be administered, but that [the public] shall have no sound reason for supposing that it is not administered.” 126 Tenn. at 658, 151 S.W. at 76 (emphasis added). To maintain public confidence, courts must avoid the appearance of partiality as well as partiality itself.
Thus, based on the standards we have articulated, we must determine whether the facts demonstrate that a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge’s ability to rule impartially on the merits of the case.
While we could remand this case to enable the trial judge to evaluate the potential appearance of partiality in this case, we deem that procedure inefficient. We have carefully read the record and considered the points raised. We are mindful of the hindrances encountered by trial judges whose trial dockets often become saturated with post-trial petitions, many of which require days of complicated testimony. We are not callous to their appropriate efforts to dispense justice more swiftly. Moreover, we do not question in the least the judge’s intentions in this cause or his determination, from a subjective, personal viewpoint that recusal was not necessary. Nonetheless, applying the objective standard required by our Code of Judicial Conduct, we deem recusal appropriate in this case in order to avoid the public appearance of partiality.
We, consequently, remand this case for transfer to another judge who will conduct a new hearing in accordance with the statutes and this opinion.
TIPTON, J., concurs.
DWWER, J., not participating.
A complete statement of the facts in this case may be found in the Supreme Court’s opinion, State v. Alley, 776 S.W.2d 506 (Tenn.1989). It is unnecessary to recount them here.
Judge Jones of the Court of Criminal Appeals granted an indefinite stay of execution on April 26, 1990.
Appellant’s issues II, VI, VIII, IX, and X.
Appellant’s issues I, III, IV, V, and VI.
Through the use of hypnosis and sodium-amy-tal, the experts identified three separate personalities: Sedley, Billie, and one known as "Power” or "Death.”
The trial court relied on Harris v. Vasquez, 913 F.2d 606 (9th Cir.1990); Clisby v. Jones, 907 F.2d 1047 (11th Cir.1990); Silagy v. Peters, 905 F.2d 986 (7th Cir.1990); and Waye v. Murray, 884 F.2d 765 (4th Cir.1989).
Rule 103(b) provides; Record of Offer and Ruling. — The court may add any other or further statement which shows the character of evidence, the form in which it was offered, the objection made, and the ruling. It shall permit the making of an offer in question and answer form.
The trial court formally denied the request for an offer of proof in its Order of July 16, 1991.
Rule 103 of the Tennessee Rules of Evidence provides: (a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and (2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence and the specific evidentiary basis supporting admission were made known to the court by offer or were apparent from the context. (b) Record of Offer and Ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling. It shall permit the making of an offer in question and answer form. Rule 43.03 of the Tennessee Rules of Civil Procedure provides: Record of Excluded Evidence. In an action tried by a jury, if an objection to proffered evidence is sustained by the court, the examining attorney may make a specific offer of what he expects to prove by that evidence. The court may require the proffered evidence or offer of proof to be presented out of the hearing of the jury. The court may add such other or further statement as clearly shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. In actions tried without a jury, a similar procedure may be followed.
The Raines court ultimately concluded that the absence of the excluded testimony did not require reversal since the record contained enough of the excluded evidence to enable a legitimate determination on appeal. Raines, slip op. at 7.
In Goad, a capital case, the Supreme Court relied on its holding in Farmers-Peoples Bank v. Clemmer, 519 S.W.2d 801 (Tenn.1975), a civil case. That decision was based on Rule 43.03 of the civil procedure rules which outlines a procedure for offers of proof in jury and non-jury cases. 519 S.W.2d at 804. The Court held that the procedure outlined in the rule and the case "obtains in criminal cases as well as in civil actions.” 707 S.W.2d at 853.
Judge Jones of this court who granted a stay of execution in response to appellant’s Rule 9 appeal held that the denial of the stay and the hearing schedule constituted "a palpable abuse of discretion ... violative of the Law of the Land provision of the Tennessee Constitution.”
Judge Jones’ order granting the stay of execution required the trial court to continue the hearing for a reasonable time to allow counsel to prepare. A piece-meal evidentiary hearing was held on March 1, March 15, April 5, April 26 and April 29, 1991.
Comments described in numbered paragraphs 1, 2, 3, and 4 were made prior to any evidentiary hearing.
Canon 2 of the Code of Judicial Conduct provides in part: A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
See Ham v. State, 540 So.2d 805 (Ala.Crim.App.1988) (no reasonable basis to question judge's impartiality); Giralt v. Vail Village Inn Assoc., 759 P.2d 801 (Colo.App.1988) (court must eliminate every semblance of reasonable doubt as to its impartiality); LaBow v. LaBow, 13 Conn.App. 330, 537 A.2d 157 (1988) (controlling standard is whether reasonable person who is aware of all circumstances would question impartiality); Scott v. United States, 559 A.2d 745 (D.C.App.1989) (appearance of partiality is sufficient); Weber v. State, 547 A.2d 948 (Del.Super.1988) (disqualification required when impartiality might reasonably be questioned); Love v. State, 569 So.2d 807 (Fla.App.1990) (ex parte communications violates appearance of impartiality); Isaacs v. State, 257 Ga. 126, 355 S.E.2d 644 (1987) (fact that judge's impartiality may reasonably be questioned is sufficient for disqualification); People v. DelVecchio, 129 Ill.2d 265, 135 Ill.Dec. 816, 544 N.E.2d 312 (1989) (guiding principle is whether average person, acting as judge, could not hold nice, clear, and true balance between state and accused); State v. Strayer, 242 Kan. 618, 750 P.2d 390 (1988) (question whether facts create a reasonable doubt not in judge’s or litigant’s mind but in mind of a reasonable person with knowledge of all the facts); Pierce v. Charity Hosp. of Louisiana at New Orleans, 550 So.2d 211 (La.App.1989) (facts must show that observer could reasonably perceive that court was biased); Boyd v. State, 321 Md. 69, 581 A.2d 1 (1990) (test is whether reasonable person knowing and understanding all the facts would recuse judge); Olson v. Olson, 392 N.W.2d 338 (Minn.App.1986) (where circumstances give bona fide appearance of bias judge should recuse); Rutland v. Pridgen, 493 So.2d 952 (Miss.1986) (recusal warranted if reasonable person would harbor doubts about impartiality); Commonwealth v. Lemanski, 365 Pa.Super. 332, 529 A.2d 1085 (1987); State v. Neeley, 748 P.2d 1091 (Utah, 1988); State v. Brown, 177 W.Va. 633, 355 S.E.2d 614 (1987); but see Smith v. State, 535 N.E.2d 1155 (Ind.1989) (movant must establish actual bias); Mourad v. Automobile Club Ins. Ass’n, 186 Mich.App. 715, 465 N.W.2d 395 (1991) (actual prejudice must be shown); State v. American T.V. and Appliance of Madison, Inc., 151 Wis.2d 175, 443 N.W.2d 662 (1989) (disqualification not mandatory merely because judge’s impartiality can reasonably be questioned by someone other than the judge).
Lackey states: "While a trial judge should recuse himself whenever he has any doubt as to his ability to preside impartially in a criminal case or whenever he believes his impartiality can reasonably be questioned, the trial judge here had no doubt of his ability to preside fairly.” 578 S.W.2d at 104.
Courts in other jurisdictions have made similar holdings. See e.g. Kail v. State, 528 N.E.2d 799 (Ind.App.1988); Boyd v. State, 79 Md.App. 53, 555 A.2d 535 (1989); Norton v. State, 755 S.W.2d 522 (Tex.App.1988).
However, if such remarks are pervasive and accompanied by prejudicial judicial conduct, they may constitute bias or prejudice. Baker, 441 F.Supp. at 619.
In the order, the trial court found that post-conviction cases can be transferred for certain reasons from one court to another, that Gerald Voss is the Keeper of Records for the Criminal Court’s Office; that his statements were consistent with Justice William Rehnquist's views on habeas corpus proceedings in capital cases; that he would be able to judge Sedley Alley’s credibility by the same standards the court would judge any other witness; and that the court’s “lighthearted” comments were made while relaxing after the proceedings were over.
Sedley ALLEY, Appellant, v. STATE of Tennessee, Appellee.
Court of Criminal Appeals of Tennessee, at Jackson.
May 2, 1997.
Permission to Appeal Denied by Supreme Court Sept. 29,1997.
Arthur E. Quinn, Timothy R. Holton, Memphis, for Appellant.
Charles W. Burson, Attorney General and Reporter, Amy L. Tarkington, Assistant Attorney General, Nashville, John W. Pierotti, District Attorney General, Henry P. Williams, John W. Campbell, Assistant District Attorneys General, Memphis, for Appel-lee.
OPINION
WADE, Judge.
The petitioner, Sedley Alley, appeals from the trial court’s denial of post-conviction relief and presents the following issues for our review:
(1) whether he was denied a fair trial due to the impartiality of the trial judge;
(2) whether a prospective juror was improperly dismissed;
(3) whether he was denied the effective assistance of counsel at trial and on direct appeal;
(4) whether the post-conviction court erroneously denied the petitioner expert services;
(5) whether the post-conviction court erroneously denied the petitioner the opportunity to make an offer of certain mitigating proof;
(6) whether the prosecutor committed reversible error during trial;
(7) whether the trial court committed reversible error during trial;
(8) whether the trial court properly instructed the jury at the guilt and penalty phases of the trial; and
(9) whether the Tennessee death penalty statute is unconstitutional.
We affirm the judgment.
The petitioner attacked the female victim while she was jogging near the Millington Naval Base, raped and killed her. At trial, the petitioner relied upon an insanity defense; through testimony, he attempted to prove that he was under the control of a separate personalty at the time of the offense.
The petitioner was convicted of premeditated first degree murder, kidnapping, and aggravated rape; at the conclusion of the penalty phase of the trial, he was sentenced to death on the murder conviction. The jury found two aggravating circumstances as grounds for this sentence: that the murder was especially heinous, atrocious, or cruel; and that the murder was committed during the kidnapping and rape. The trial court imposed consecutive forty-year terms for the two other offenses. The supreme court affirmed each of the convictions on direct appeal. State v. Alley, 776 S.W.2d 506 (Tenn.1989). Thereafter, the petitioner filed a petition for post-conviction relief, which was denied by the trial court. On appeal, this court reversed, ordered the recusal of the trial judge, and remanded the case for a new hearing. Alley v. State, 882 S.W.2d 810 (Tenn.Crim.App.1994). This court ruled that the trial court should have allowed the petitioner to make an offer of proof as to the expert testimony he intended to produce. Id. at 818. At the conclusion of the eviden-tiary hearing, the .replacement judge denied the petitioner post-conviction relief.
The record of the post-conviction proceeding establishes that Deborah Richardson, a Mental Health Program Specialist with Middle Tennessee ’Mental Health Institute, assisted with the assimilation of the petitioner’s records during his four-month evaluation period. The evaluation team included Ms. Richardson, Dr. Marshall, Becky Smith, Julie Maddox, Dr. Samuel Craddock, Dr. Zillur Athar, and two nurses. Ms. Richardson testified that birth records are not normally obtained for mental health examinations unless there is something about the patient’s current functioning which would indicate congenital organic impairment; in her opinion, nothing about the petitioner’s condition suggested a review of his birth records before his trial. When asked by the team of his medical background, the petitioner failed to mention anything of consequence. At the evidentiary hearing, Ms. Richardson testified that she did review records indicating that the petitioner’s mother suffered from edema during pregnancy. The petitioner’s Apgar scores, which measure the infant’s responsiveness after birth, declined over time; she also learned that the petitioner was born with a collapsed lung and spina bifida (a hole in the spinal cord). EEGs and CAT scans revealed nothing. Ms. Richardson confirmed that none of these conditions were explored by the evaluation team before the trial.
It was established that the petitioner also suffered from congenital kidney problems and an abnormal external genitalia. The petitioner had undergone several urethral strictures during his childhood, which entailed inserting a rod-like instrument into the urinary tract. He also had urethral surgery at age fifteen and suffered hemorrhaging of the penis shortly after the operation. The petitioner also had a history of febrile seizures before his surgery and had one after-wards. One of the reports pertaining to his urinary tract problem mentioned the term “neurosis,” but this was not further investigated by the team. The petitioner also suffered a head injury during a diving accident; the team took this into account during their evaluation. At the evidentiary hearing, Ms. Richardson acknowledged that the team did not consult a urologist or a geneticist with regard to any of these problems. She did testify that the team could find no connection between these physical problems and the alleged multiple personality disorder and concluded there was no need to research the problems any further. Ms. Richardson asserted that the team took extraordinary measures with the petitioner because of the nature of the alleged symptoms. She confirmed that records were also obtained subsequent to the trial indicating the petitioner was admitted to a hospital in Ohio for similar urinary tract problems; that was not investigated further.
The petitioner was diagnosed by the team as having a borderline personality disorder and continuous mixed substance abuse; he was classified as a malingerer. Ms. Richardson testified that the new medical records she had seen would not have changed her diagnosis of the petitioner. She stated that everything was consistent with substance abuse except for the borderline personality disorder symptoms. While acknowledging that the petitioner complained about nightmares and other personalities named “Billy” and “Death,” and appeared nervous during evaluation meetings, Ms. Richardson testified that the petitioner acted normally around the Institute’s general population and never showed any signs of behavioral changes. The team also monitored his sleeping and never observed signs of the alleged nightmares. She claimed that during the evaluation meetings, the petitioner would respond to certain cues the doctors would offer that were indicative of malingering.
Ms. Richardson recalled that the petitioner’s trial attorneys traveled to the Institute to check on his status, which was rare for attorneys to do. In her view, the attorneys showed more interest than in any other case she could recall. She testified that the attorneys provided her team all of their records of medical history and the team, in turn, provided the trial attorneys with all of the findings they had made. She confirmed that everyone at the Institute testified at the competency hearing that the petitioner was able to stand trial.
Dr. Samuel Craddock, a clinical psychologist, also testified that the trial attorneys had visited him on about six occasions to discuss the petitioner’s mental status; he described them as very thorough in their work. Dr. Craddock related that he had spent more time on this case than in any of the many others in which he had been involved; in his opinion, the trial attorneys could not have done anything differently to change his diagnosis of the petitioner. Dr. Craddock testified that the evaluation team considered the possibility of a multiple personality syndrome but concluded that the petitioner was not so afflicted.
Dr. Craddock also testified it was not customary to review birth records when attempting to determine either competency or sanity issues. Instead, the team looked for traumatic events in the petitioner’s life that might have affected his mental status at the time of the offense. It was his opinion that neither the urethral surgery nor the diving injury would have had an effect on the diagnosis. Dr. Craddock explained that during interviews, the petitioner never described these events as being traumatic. He claimed that a medical report indicating that the petitioner suffered from a neurosis might not be legitimate because there was no other information pertaining to that diagnosis. It was his view that the dilation of the urinary tract was not necessarily traumatic for the petitioner, even though it was probably painful. He did conclude that the hemorrhaging that occurred after surgery could have qualified as trauma.
Dr. Craddock described the petitioner as appearing more impaired during the meetings with the team than during his association vrith other patients in the Institute. Dr. Craddock also mentioned that even though the petitioner complained of problems sleeping and about nightmares, no one ever observed anything out of the ordinary during round-the-clock observations. There was no evidence of any neurological problems. Dr. Craddock adhered to his belief that the personality disorder symptoms were a product of malingering.
Dr. Zillur Athar, one of the psychiatrists who examined the petitioner, testified that a cluster of physical anomalies can point to a syndrome with a genetic origin; he conceded, however, the team did not consult a geneticist in this case. Dr. Athar testified that genetic disorders can affect behavior, but not in every case. It was his view that persons who suffer from multiple personality disorders usually have experienced some form of sexual abuse trauma early in life. Dr. Athar stated that hemorrhaging after surgery and dilation procedures on the urinary tract could be traumatic if the person was not fully informed of these as possible consequences. He had no opinion on whether the petitioner had been fully prepared and informed; it was standard medical practices to do so.
Dr. Athar described neurosis as an outdated term which had indicated unusual anxiety; the term could suggest a temporary condition. He testified that a prior neurosis diagnosis of the petitioner would have been significant but could not say if the team had followed up on any such information. It was his view that the extent and location of brain hemorrhaging would have to be known for a determination of whether it had any bearing upon his mental evaluation. Dr. Athar could not recall anyone asking whether the killing of the victim, by penetrating the victim’s vagina some twenty inches with a tree branch, bore any similarity to the petitioner’s childhood surgery.
Dr. Athar testified that multiple personality develops from childhood to early teens. He treated the petitioner weekly during his term of observation at the Institute. He claimed that the team obtained as much information as they needed for a satisfactory evaluation. Dr. Athar testified that the new information he had been shown at the hearing, including the urologist’s diagnosis of neurosis, did not change his belief that the petitioner was sane. He held to his opinion that the petitioner was malingering. Dr. At-har testified that he had no basis to conclude that the petitioner had been sexually abused as a child.
Dr. Athar acknowledged that before trial, he had met with the defense attorneys on many occasions. He also claimed that he had invested more time in this case than on any other dining his tenure at the Institute; generally, patients usually do not spend as much time under evaluation or treatment as did the petitioner. Dr. Athar also believed that the petitioner acted differently in the meetings with the evaluation team than in the unit; he described the petitioner as “quite normal” when interacting with the other patients but complaining excessively in the meetings with the team. He testified that there was nothing the petitioner’s trial attorneys could have said or done that would have changed the results of his evaluation. Dr. Athar testified that he did not see symptoms of mental illness that would warrant a genetic investigation.
Dr. Lynne Donna Zager, a psychologist with the Midtown Mental Health Center, performed a preliminary evaluation of the petitioner before his transfer to the Institute. She could not recall any indication that the petitioner received treatment as a youth for any mental disorder. She did acknowledge that a prior diagnosis of neurosis would be something of interest depending on the context in which the term was used.
Dr. Zager recalled the petitioner describing his urology operation as a traumatic experience; the team took this experience into consideration during the evaluation. The team interviewed the petitioner and his family and made an extensive inquiry of his past. Dr. Zager conceded that genetic defects would possibly affect behavior; at the time of the evaluation, however, the team deemed as unnecessary any investigation of genetic problems. She acknowledged, however, a similarity between the petitioner’s surgical procedure and the manner in which the offense was committed; the team took that into consideration in making their evaluation.
Dr. Zager testified that she had spent more time on this case than any other in which she had participated. The purposes of her evaluation were to determine the competency of the petitioner to stand trial and his mental condition at the time of the offense; she made no preparations to testify about possible mitigating circumstances in the commission of the crime. Dr. Zager also complimented the efforts of petitioner’s trial attorneys in the evaluation. She acknowledged that the team considered and then ruled out a diagnosis of multiple personality disorder. She concurred in the finding that the petitioner had substance abuse problems and a borderline personality. She also felt there was information to suggest the petitioner was malingering; that was the basis for his transfer to the Institute.
Dr. Allen Overton Battle, who was hired by the defense attorneys to evaluate the petitioner, conducted hypnosis on the petitioner in an effort to discover any suppressed recollections. The defense attorneys recorded every session on videotape. No medication was administered during the sessions. He was also aware that sodium amytal (“truth serum”) had been provided to the petitioner during several of his sessions with Dr. Larry Southard in Nashville. Dr. Battle testified that the petitioner’s trial attorneys had provided him with a great deal of information in an effort to assist in his defense.
Dr. Battle concluded that the petitioner did, in fact, suffer from multiple personality, but could not state that the petitioner was legally insane at the time of the offense. He testified that he would have liked more tests on the petitioner in an effort to determine his mental state; a taped confession by the petitioner, which was never provided, might have been helpful. The records pertaining to the dilation of the urethra would have been especially helpful because of its possible traumatic effect; a disassoeiation with the experience might have ultimately led to multiple personalities. Dr. Battle, who was convinced there was no malingering, hypothesized that the alter ego created in the petitioner was a female who could not suffer from abnormal male genitalia and the corrective surgical procedures; the female killed the victim and left the host personality to deal with the crime much as the host personality left the female to deal with the pain of the dilations. Although Dr. Battle testified at trial about how the petitioner’s disorder might have formed, he was never asked about his multiple-personality hypothesis of the cause of the crime. He testified that the petitioner’s trial attorneys failed to ask him to testify about any possible mitigating circumstances.
Dr. Battle did assert that the defense attorneys did an excellent job at trial; in his forty years of experience he could not recall any other instances in which attorneys performed as capably. Most of the information he received on the petitioner’s history came from the efforts of the trial attorneys, even the reports on his urethra surgery; Dr. Battle testified that his trial testimony regarding the multiple personality disorder was critical for the defense. He claimed that he was never asked to testify on the sanity issue because there were other professionals available for that; he perceived his duty as to investigate the multiple personality disorder only.
Dr. Battle conceded that, because he saw the petitioner for only two hours at a time, the doctors and employees at the Institute were in a better position to determine whether the petitioner was malingering. He testified that it was “totally impossible” for him to make an informed evaluation concerning malingering or insanity. While Dr. Battle was not called upon to testify specifically on possible mitigating circumstances, he did acknowledge conveying to the jury during the guilt phase of the trial the pain the petitioner experienced during his childhood. It was his view that the birth records of the petitioner would not have been helpful in his evaluation. In response to a question by the trial judge, Dr. Battle testified that, in his opinion, none of the petitioner’s personalities could be considered legally insane.
Mark Ward, the petitioner’s counsel on the direct appeal of the conviction, is involved in all death penalty appeals in the Shelby County Public Defender’s Office. Mr. Ward testified that he takes control of the case after the filing of the notice of appeal. In response to a letter from the petitioner asking why he raised the various issues on appeal, he informed the petitioner he raised what he thought appropriate based upon his experience. He included every possible meritorious issue in his appellate brief, confirming that he had an adequate record on appeal. Mr. Ward also testified that he would have filed a petition to rehear had the supreme court’s opinion misstated the testimony of a witness, especially that of Dr. Marshall. See Alley, 776 S.W.2d at 506, 510. He recalled no such misstatements in the opinion.
The petitioner’s trial attorneys asked Dr. Wyatt Lee Nichols, a clinical psychologist, to conduct evaluations of the petitioner for both competency to stand trial and sanity at the time of the offense. When the petitioner claimed that he could not remember anything about the crime, Dr. Nichols informed defense counsel he could not make an adequate evaluation, made a reference to Dr. Battle, and did not participate further. Because competency and sanity had to be evaluated, Dr. Nichols did not consider mitigating circumstances. At the evidentiary hearing, Dr. Nichols testified that had he explored the mitigation aspects, he would have reviewed the petitioner’s past experiences affecting self-esteem and confidence; he also would have considered other characteristics relating to the nature of this particular crime, such as sexual prowess and sexual performance. He conceded that any knowledge about the petitioner’s .urinary tract dilations might have been helpful.
Attorney Robert Jones represented the petitioner at trial. In the legal profession for eighteen years, he has been with the Public Defender’s Office for seventeen years and on their capital defense team for fifteen of those years. Ed Thompson, another Public Defender, was also assigned to represent the petitioner. Mr. Jones had the primary responsibility of investigation and preparation; Mr. Thompson acted as lead counsel at trial. Chris Glen, a social worker who had worked on approximately 700 murder cases, and Ralph Nally assisted in the investigation. The defense team talked with the petitioner’s wife, sister, arid mother, who informed them of all of the significant medical problems in the petitioner’s life, including the urethra surgery, the head injury, and his childhood behavior. None of the defense team had any experience in the area of multiple personalities. The decision to use the insanity defense was a group decision among the attorneys, the petitioner, the physicians, and other experts. On advice of the physicians, the trial attorneys made no suggestion to the petitioner that he was afflicted with multiple personalities.
Mr. Jones testified that he did not recall seeing the trial judge’s Rule 12 report in this ease or being asked for input for the report from the trial judge. Mr. Jones testified that he disagreed with the trial judge’s assessment that no mitigating evidence had been presented; he concluded that the petitioner’s mental condition and the petitioner’s level of intoxication at the time of the crime should have been included in the report.
The trial attorneys were first apprised of a possible mental defect when the petitioner complained of memory losses. After contacting Dr. Nichols to evaluate the petitioner for competency to stand trial and sanity at the time of the offense, they were referred to Dr. Battle for hypnosis evaluations due to the petitioner’s inability to recall the events of the crime.
Dr. Battle, who had determined competency and sanity questions in prior cases, requested a transfer of the petitioner to Nashville for further evaluations. At the Institute, the petitioner was examined by an evaluation team, headed by Dr. Marshall, and a treatment team, headed by Dr. Athar. The petitioner initially spent thirty days in the Institute; he returned later for further evaluations.
When it was determined that multiple personalities might be an issue, the trial attorneys sought the counsel of other experts in the area; because Dr. Battle was a leading expert in this field and was familiar with criminal cases, it was decided to utilize his participation in the case. Mr. Jones also testified that he maintained regular contact with those participating in the evaluations and actually sat in on several of the hypnosis and sodium amytal sessions performed by Dr. Battle and Dr. Marshall.
Both Drs. Battle and Marshall supported the theory of multiple personality developing from the urinary tract problems and medical procedures. But Dr. Battle began to vacillate just before trial as to whether “Power” or “Death” was in control at the time of the offense. After talking with Dr. Battle, Attorney Jones decided that Dr. Battle’s testimony lent support to the defense theory; he claimed that he did not learn otherwise until trial when Dr. Battle provided damaging testimony to the petitioner. Mr. Jones acknowledged his disappointment and asserted that he would never utilize Dr. Battle as an expert in the future. He testified that Dr. Marshall did, however, support the insanity defense at trial. Both had testified to the petitioner’s multiple personalities during the competency hearings before trial.
Prior to trial, Attorney Jones filed motions to continue the case; when the county public defender made a rare appearance to support the motions and ask for permission to withdraw, the trial judge delayed jury selection for three days. Mr. Jones asserted that he did not waive any meritorious issues during the trial of the case. Although this trial was scheduled within days after Mr. Jones had finished another trial, he conceded at the evidentiary hearing that he was prepared to proceed, having worked on the case for well over a year.
Attorney Jones claimed that the trial was tense at times; for example, the trial judge threatened him with contempt and, at one point, warned him of his constitutional rights. He claimed that the judge questioned the credibility of the defense attorneys. Mr. Jones testified that he was not aware the parents of the victim had sent a letter to the trial judge about the case and questioned the propriety of the trial judge’s contact with the victim’s family; while the prosecution had been provided a copy of the letter, the defense had not. Mr. Jones conceded that he had not filed a motion for recusal. Upon further questioning, Attorney Jones acknowledged that the state displayed for the jury a photograph of the victim during the entire first day of the trial; no objection was lodged until the end of the day. He explained that he delayed his objection so as not to alienate the jury.
Mr. Jones testified that all records of the petitioner’s prior medical problems had been passed on to the experts. Mr. Jones, who talked with the petitioner’s family, had no recollection of any medical problems associated with his birth. He stated that none of the doctors who examined the petitioner ever indicated that there was any reason to obtain the birth records; he knew nothing of a neurosis diagnosis. Mr. Jones acknowledged his awareness of the petitioner’s urinary tract surgery and the head injury and provided the experts with that information. A neurological workup on the head injury revealed no organic problems.
While Mr. Jones conceded that he did not show the jury the actual instrument that was used in the urethra dilations of the petitioner, he did attempt to “paint the picture” of these procedures to the jury; he said that Dr. Battle described the pain associated with the surgery and how this event could culminate in a disassoeiation which, in his opinion, caused the multiple personality disorder.
Mr. Jones did not ask Dr. Zager to testify in the penalty phase. The defense decided that some of their experts were not “open-minded” and would not, therefore, be helpful in the penalty phase. In their assessment, the mitigation evidence introduced during the guilt phase was credible and compelling. For example, Dr. Battle testified during the trial about the petitioner’s behavior as a child, such as rocking back and forth, banging his own head against the wall, imagining conversations, experiencing headaches and nightmares, not wanting to play with other children, imagining a playmate “Billie,” and suffering mental abuse from his father. Because the defense team thought that the jury might find the petitioner not guilty by reason of insanity, they introduced the bulk of their proof during the guilt phase of the trial. This strategy, according to Attorney Jones, was to establish grounds of mitigation at the same time the jury considered the insanity testimony. Mr. Jones testified that the jury thus learned of the mitigating circumstances during the guilt stage of the trial.
Mr. Jones explained that the defense team chose not to use a psychologist during the sentencing phase because a more extensive cross-examination might have been damaging. Mr. Jones testified that his requests for experts had been approved in the trial court and that funds for the employment of a geneticist would have been granted.
Mr. Jones testified that the defense filed notice of insanity defense over a year before trial; the state refused to offer any plea agreement. Several pretrial motions were filed, including a motion to suppress the petitioner’s statement; there were lengthy hearings. Mr. Jones stated that he was in continual contact and discussed the insanity defense with the petitioner throughout the course of the trial. Mr. Jones also acknowledged his responsibility for preparing the record for Mr. Ward’s representation on appeal.
Ms. Glen, who helped prepare all of the background information on the petitioner, also assisted in the jury selection and witness coordination in the sentencing phase. Mr. Nally did most of the investigation relating to the crime and also performed a background check. Edward Thompson, who also represented the petitioner at trial, has practiced criminal law for thirty-two years and at one time served as the Shelby County Public Defender. The trial of this case was to start the Monday following the completion of another trial he and Mr. Jones just completed on Saturday. Mr. Thompson stated that they were physically and mentally exhausted from the previous trial, and sought permission to withdraw rather than begin the trial on time. The trial judge granted them a three-day extension.
At the time of trial, Mr. Thompson also did not know of the letter the victim’s family ■wrote the judge. He did recall seeing the victim’s father walk back toward the judge’s room and observed the judge’s wife sit with the victim’s family during trial.
Mr. Thompson agreed that the jury heard significant mitigating circumstances during the guilt phase of the trial. He described the trial judge’s failure to include that in his Rule 12 report as a mistake. Mr. Thompson confirmed that Dr. Battle understood he was to evaluate the competency and sanity of the petitioner. Dr. Battle was the only person they knew who had any experience in the field of multiple personalities and was willing to testify on their behalf. Though Dr. Battle did not testify as they had anticipated, he did provide the defense with supportive testimony.
He also confirmed that the defense team relied upon the family to inform them about any defects or illnesses the petitioner may have had; no one mentioned any problems associated with his birth. Mr. Thompson did state that he would have asked for medical records and reviewed them had this been known.
Mr. Thompson testified that the petitioner appeared to be very lucid in providing details of the crime to the police; the tape of the confession confirmed this. No one could testify that petitioner was intoxicated at the time. Thus, the defense team chose not to use experts during the suppression hearing.
ANALYSIS
It has long been established that the trial court’s findings of fact and conclusions of law in post-conviction suits are afforded the weight of a jury verdict. See, e.g., Caruthers v. State, 814 S.W.2d 64, 67 (Tenn.Crim.App.1991). “In post-conviction relief proceedings the petitioner has the burden of proving the allegations in his petition by a preponderance of the evidence.” McBee v. State, 655 S.W.2d 191, 195 (Tenn.Crim.App.1983). Furthermore, the trial court’s findings of fact and conclusions of law are conclusive on appeal unless the appellate court finds that the evidence preponderates against the findings. Butler v. State, 789 S.W.2d 898, 899 (Tenn.1990).
I
The petitioner first contends that he was denied his constitutional right to a fair trial due to specific instances of conduct on the part of the trial judge, who also sat in the original post-conviction proceeding. The petitioner claims the judge was neither neutral nor detached, “had developed a personal bias against the petitioner,” and “developed] strong feelings for the implementation of capital punishment.”
The alleged inappropriate conduct occurring during the initial post-conviction proceeding involves comments made by the judge in response to a motion for stay of execution, a motion for appointment of counsel, and the filing of the post-conviction petition itself. The petitioner contends that even though these comments occurred during the post-conviction proceeding, they demonstrate a personal bias that originated in the trial of the case. These complaints of misconduct were reviewed by this court during the initial post-conviction appeal. See Alley v. State, 882 S.W.2d 810, 818-19 (Tenn.Crim.App.1994). After outlining the law governing re-cusal, this court remanded for a hearing before a different judge:
While we could remand this case to enable the trial judge to evaluate the potential appearance of partiality in this case, we deem that procedure inefficient. We have carefully read the record and considered the points raised. We are mindful of the hindrances encountered by trial judges whose trial dockets often become saturated with post-trial petitions, many of which require days of complicated testimony. We are not callous to their appropriate efforts to dispense justice more swiftly. Moreover, we do not question in the least the judge’s intentions in this cause or his determination, from a subjective, personal viewpoint that recusal was not necessary. Nonetheless, applying the objective standard required by our Code of Judicial Conduct, we deem recusal appropriate in this case in order to avoid the public appearance of partiality.
Id. at 823.
Relief under the Post-Conviction Procedure Act may be granted only when there has been an abridgment of any constitutional right during the course of the guilt or sentencing phase of the trial. Tenn.Code Ann. § 40-30-105 (repealed 1995). Because the alleged instances of misconduct occurred during the hearing on the post-conviction petition, the petitioner does not qualify for relief. While the petitioner suggests that comments made by the judge during the initial post-conviction hearing indicate a personal bias originating during his trial, the petitioner has failed to point to anything in the record that would warrant post-conviction relief. This court’s order of recusal and the remand for a hearing before a different judge resolved any possible issue.
The petitioner also contends that he was prejudiced by the biased conduct of the trial judge during his trial. The petitioner makes several claims of misconduct: (1) the trial judge misstated information in the Rule 12 report; (2) the trial judge improperly expedited the psychological review of the petitioner; and (3) the trial judge and his wife had inappropriate contact with the victim’s family. In response, the state asserts that the petitioner waived these claims by their omission as grounds for relief on the direct appeal. Tenn.Code Ann. § 40-30-112 (repealed 1995). See also House v. State, 911 S.W.2d 705, 713-14 (Tenn.1995), cert. denied, — U.S. -, 116 S.Ct. 1685, 134 L.Ed.2d 787 (1996). We must agree. Except the allegations of impropriety concerning a letter from the victim’s family, all such grounds have been waived because they could have been presented for review during the direct appeal process.
In any event, the claims have no merit. The petitioner claims the trial judge incorrectly reported under Rule 12 that there was no mitigating evidence before the jury, that the petitioner’s mental or physical condition did not call for special consideration, and that there was no evidence the petitioner was under the influence of drugs or alcohol at the time of the offense. The petitioner also claims his defense attorneys were prevented from reviewing the report before its submission to the supreme court. This complaint, however, is not of constitutional dimensions. The rules of the supreme court have the force of law by virtue of legislative enactment. Tenn.Code Aim. § 16-3-404. This rule was enacted to assist our supreme court in its statutory duty to review a death penalty sentence in first degree murder cases. Malone v. State, 707 S.W.2d 541, 544 (Tenn.Crim.App.1985). See also State v. Brimmer, 876 S.W.2d 75, 87 (Tenn.1994) (“The simple answer to this complaint is that use of the trial judge’s Rule 12 report by this Court is only one facet of the Court’s appellate review.”); State v. Cazes, 875 S.W.2d 253, 270 (Tenn.1994) (“a Rule 12 report contains far less information than the entire record, which we have thoroughly reviewed in this case”).
The petitioner contends that the judge “imposed pressure upon the staff of Middle Tennessee Health Institute to quickly come to a determination as to the status of Mr. Alley.” The record, however, does not substantiate that claim. The petitioner was evaluated by numerous experts in Memphis and Nashville and was institutionalized under observation for a period of about four months. Although there is some indication certain doctors would have liked more time to evaluate the petitioner, the experts from the Institute testified during the post-conviction hearing that the additional information they were shown during the hearing would not have changed their diagnosis.
Next, the petitioner contends that certain contact between the trial judge, his wife, and the victim’s family indicates bias against the petitioner. This claim is based upon a letter sent to the trial judge by the victim’s family asking for expedited proceedings, the fact that the trial judge’s wife sat next to the victim’s family during trial, and the implication that the victim’s father walked towards the trial judge’s chambers during recess of the trial. The petitioner did not discover evidence of this letter until the hearing below. The better practice is to share any correspondence pertaining to a case with both parties, defense counsel and the state, to avoid any appearance of impropriety. See Code of Judicial Conduct, Canon 3(A)(4), Tenn. Sup.Ct. R. 10. At the conclusion of the remanded evidentiary hearing, the replacement judge declared that no prejudice resulted from the letter. The record supports the conclusion that the trial judge did not respond to the family or make any special concessions on their behalf.
The fact that two weeks after receiving this letter, the trial judge notified the defense attorney that the case had been set does not prove impartiality. Moreover, while it is far better for the trial judge and his family to avoid even the appearance of impropriety, there is simply inadequate proof in this record to qualify as misconduct on the part of the trial judge during the trial. Jurors did not likely know the trial judge’s wife; certainly, nothing in this record suggests otherwise. There was testimony that the break or coffee room was near the judge’s chambers; there was no proof that the trial judge talked with the father of the victim during the trial. If there was improper contact, the petitioner has been unable to prove it.
The petitioner has failed to show that the evidence in the post-conviction proceeding preponderates against the findings of the trial court. See McBee, 655 S.W.2d at 195. Accordingly, for the reasons stated above, this issue is without merit.
II
The petitioner next contends the trial court improperly excused a prospective juror for cause and refused to allow defense counsel an opportunity at rehabilitation. Our supreme court resolved this issue in favor of the state on direct appeal. Alley, 776 S.W.2d at 517-18. Thus, the ground has been previously determined. Tenn.Code Ann. § 40-30-112(a) (repealed 1995). See also House, 911 S.W.2d at 710-11.
III
The trial court found that the defense attorneys were effective in their representation of the petitioner. In order for the petitioner to be granted relief on grounds of ineffective counsel, he must establish that the advice given or the services rendered were not within the range of competence demanded of attorneys in criminal eases and that, but for his counsel’s deficient performance, the result of his trial would have likely been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Baxter v. Rose, 523 S.W.2d 930 (Tenn.1975).
Furthermore, this court may not second-guess the tactical and strategic choices made by trial counsel unless those choices were uninformed because of inadequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn.1982). Trial counsel may not be deemed ineffective merely because a different procedure or strategy might have produced a different result. Williams v. State, 599 S.W.2d 276 (Tenn.Crim.App.1980). The reviewing courts must indulge a strong presumption that the conduct of counsel falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. The burden is on the petitioner to prove his allegations by a preponderance of the evidence. McGee v. State, 739 S.W.2d 789 (Tenn.Crim.App.1987). The findings of fact made by the trial judge are conclusive unless the evidence preponderates against the judgment. Graves v. State, 512 S.W.2d 603 (Tenn.Crim.App.1973).
The petitioner alleges numerous instances of ineffective counsel. First, he claims that his defense attorneys failed to present or offer proof of his mental or medical condition at the time he gave his statement to the police; because he relied on a defense of insanity, the petitioner contends that evidence on the issue was crucial to the case.
Deborah Richardson, a Mental Health Program Specialist, testified at the post-conviction hearing. She had reviewed the petitioner’s statement in conjunction with witness accounts that he was not impaired at the time. Because the statement was logical, coherent, and progressed in a natural sequence, she concluded that the petitioner was not under the influence at the time.
Furthermore, Attorney Thompson testified that the audio-taped confession appeared quite lucid in its detail. Because no one could conclude that the petitioner was impaired, the attorneys decided not to call any experts during the suppression hearing. Thompson stated he and his co-counsel did not want to subject their experts to cross-examination and take the risk that the revelation of their insanity evidence might weaken the defense.
The post-conviction court could not find that this tactic deprived the petitioner of a fair trial. We agree. The decision appears to have been informed and based upon adequate preparation. We cannot second-guess counsel in this regard. See Hellard, 629 S.W.2d at 9.
The petitioner also claims his defense attorneys did not properly investigate his medical history, prepare their experts’ testimony, or present the insanity defense. The petitioner complains that certain of his medical reports, including the birth records pertaining to his urinary tract dysfunctions, were not obtained or shown to the experts before trial; he argues that these records were essential to the presentation of his defense. The petitioner also contends that his counsel was ineffective by failing to introduce any significant mitigating evidence during the sentencing phase of the trial. He insists that a miscommunication between Dr. Battle and trial counsel resulted in an inadequate psychological evaluation and undermined his insanity defense. The petitioner also complains that his counsel on appeal was ineffective by failing to file a motion to reconsider when the supreme court opinion misstated the testimony of Dr. Marshall.
During the course of the evidentiary hearing, the petitioner introduced medical reports pertaining to his birth and his urinary tract condition. Although the defense attorneys learned from the petitioner and his family of the urinary tract problems and the diving injury to his head, they were unaware of other medical complications during his birth. Every expert who had evaluated the petitioner before the trial and who testified later at the evidentiary hearing, examined the medical records and the previously unknown neurosis diagnosis and maintained that their opinions on the petitioner’s condition had not changed.
Dr. Zager was consulted to determine first whether the petitioner was competent to stand trial and secondly whether he was insane at the time of the offense. She concluded that the petitioner was competent but recommended transferring him to the Institute for more evaluation. Dr. Zager was not called to testify to mitigating circumstances. During the post-conviction hearing, she testified that she suspected possible theories to explain the petitioner’s acts and acknowledged that she suspected malingering. After recommending the transfer of the petitioner to the Institute for further evaluation, however, the responsibility for the evaluation shifted to the doctors there. Dr. Zager considered the petitioner’s urinary tract deformity in her evaluation. She testified that she had more contact with his defense attorneys than any others involved in the defense of her prior patients.
The record demonstrates that defense counsel spent a great deal of time in the selection and preparation of trial. The petitioner was examined by several in the medical profession. Once it was decided to pursue the insanity defense under the multiple personality theory, the attorneys called experts throughout the country before determining that Dr. Battle was one of the leading persons in the field. They also relied upon the evaluation and opinion of Dr. Marshall. Both concluded therefrom that the petitioner suffered from multiple personalities. As the record indicates, Dr. Battle did not definitively testify during trial that an alter personality was in control at the time of the offense. Mr. Jones testified he was aware Dr. Battle was wavering just before trial. It was not until Dr. Battle was on the stand that Mr. Jones realized Dr. Battle was not testifying as to what he had indicated. Nonetheless, both attorneys indicated that Dr. Battle still provided the defense with valuable mitigation evidence. His trial testimony did not discount the defense theory that an alter personality was in control at the time of the offense. The testimony of Dr. Marshall fully supported the defense.
There was some confusion regarding Dr. Battle’s function. Attorney Jones testified that he had used Dr. Battle as an expert in the past and had always instructed him to determine both the competency issue and sanity issue. Dr. Battle testified that he was asked simply to determine whether or not the petitioner suffered from multiple personalities. The trial court accredited the version provided by Jones: “Why subject the petitioner to five video sessions under hypnosis, three sodium amytal sessions and other examinations if it were not for the purpose to determine his state of mind on the night of July 12,1985?”
Defense counsel had to rely upon the opinions of their experts. The physicians testifying for the defense were well respected in this field for their expertise. That one of the experts changed his opinion does not mean that counsel was ineffective. Stated simply, the proof in the record does not preponderate against the findings of the trial court.
Next, the petitioner contends that counsel was ineffective by failing to show the jury the device used on the petitioner during his urethra procedures. Dr. Battle, however, testified about the procedures. The defense attorneys feared that the jury would be offended by a comparison of the rod-like urethra instrument to the tree branch used to kill the victim. They believed that the detailed description by Dr. Battle as to the pain of the petitioner adequately made their point. That, in our view, was a reasonable strategy. Thus, counsel was not ineffective in this regard.
The petitioner next asserts that the attorneys in this ease should have filed a petition to rehear upon learning that our supreme court misstated the testimony of Dr. Marshall in its opinion on direct appeal. In its opinion, the court remarked that the state’s expert testimony was “strong and impressive” and concluded that the state proved the petitioner’s sanity beyond a reasonable doubt. Alley, 776 S.W.2d at 511. The jury had accredited the expert witnesses for the state. The petitioner has faded to show either a misstatement of fact or how filing a petition to rehear would have changed the result of the direct appeal.
The petitioner also makes a general claim that his defense attorneys were not fully prepared for trial. The petitioner relies upon the contents of his attorneys’ motion for a continuance. While the trial judge granted only a three-day extension, each of the attorneys testified at the evidentiary hearing that they were fully prepared when the trial began. The post-conviction court accredited that testimony. The record supports that conclusion.
Next, the petitioner contends his trial counsel were ineffective because they failed to include in the record on appeal the transcript of the closing arguments during the guilt phase of the trial. Apparently, the prosecutor made references to victim impact evidence. Our supreme court concluded that the trial court erroneously allowed the state, over defense counsel’s objection, to introduce the victim impact testimony of the victim’s father.. The error was deemed harmless beyond a reasonable doubt. The petitioner now claims the opinion might have been different if the court had been aware of the specifics of the comments made during the initial closing argument. We do not agree. The decision was based upon the fact that none of the inappropriate argument occurred during the sentencing phase of the trial. As the post-conviction court noted, our supreme court’s observations about final argument were premised upon Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). That case was subsequently overruled by Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Thus, the failure of the defense attorneys to include a transcript of the argument did not result in prejudice.
During the first day of the original trial, the state displayed a 20” by 16” photograph of the victim. The record indicates that defense counsel did not object until the end of that day. The objection was overruled. On the third day of trial, the trial court directed the state to substitute a smaller photo in its place. On direct appeal, the petitioner claimed it was error for the trial judge to have overruled the objection. Our supreme court, noting that the record failed to establish how the photo was displayed, held that the issue was without merit. The petitioner now claims counsel was ineffective by delaying its objection and failing to adequately raise the issue on appeal.
The post-conviction court ruled that the petitioner “failed to convince this Court that such display or the lack of an objection influenced the jury to arbitrarily assess guilt and the death penalty.” The petitioner had the burden of showing how he had been prejudiced by his attorneys’ delay in lodging an objection. He has failed to do so.
The petitioner alludes to a number of other instances during trial wherein his defense counsel failed to object to questioning and argument of the prosecutor. More specifically, the petitioner complains that his attorneys failed to object to testimony about the background of the victim; failed to object to a leading question asked by the prosecutor; failed to assert the husband and wife privilege concerning a conversation between the petitioner and his wife which had taken place in the presence of police; failed to object to the conclusory testimony of a witness; failed to object to the prosecutor’s argument that the jury should not have mercy; and failed to object to the improper conduct of the trial judge and his wife. The petitioner presents each of these claims in a single sentence and has failed to offer any supportive explanation for his position. It is our view that the post-conviction court correctly ruled that trial counsel was not ineffective with regard to any of these allegations.
Finally, the petitioner contends trial counsel was ineffective for having failed to present issues one, six, seven, eight, and nine of this opinion on direct appeal. Because we have determined there was no error, the petitioner would not be entitled to relief on this claim. Accordingly, this contention must fail.
IV
In his next issue, the petitioner claims that the trial court in the post-eonvietion proceeding erroneously denied his motion for expenses for expert witnesses due to “a number of complex medical and psychological issues including multiple personality disorder.” Counsel argued that the expert services would assist in determining whether trial counsel was ineffective. The trial court denied the motion based upon the ruling in Teague v. State, 772 S.W.2d 915 (Tenn.Crim.App.1988). It ruled that additional experts were unnecessary for an informed determination on the effectiveness of the defense attorneys at trial.
In Teague, the controlling law at the time of the hearing, this court held that Tennessee Supreme Court Rule 13(2)(B)(10) and Tenn. Code Ann. § 40-14-207(b) (1995 Supp.), governing the provision of investigative and expert services in capital cases, applied only to the trial and not in the post-conviction context. Teague, 772 S.W.2d at 927. After expert services had been denied in this case, our supreme court overruled Teague in Owens v. State, 908 S.W.2d 923 (Tenn.1995). In Owens, the court held that Rule 13(2)(B)(10) and § 40-14-207(b) did apply to post-conviction capital cases, but warned that its ruling “should not be interpreted as a ‘blank cheek’ requiring trial courts to hold ex parte hearings and authorize funds in every case.” Owens, 908 S.W.2d at 928. Strict compliance with the guidelines in Rule 13(2)(B)(10) is required.. Id. That is, the motion requesting experts must contain more than a “bare allegation that support services are needed” in order to ensure the protection of the petitioner’s constitutional rights. Id. Moreover, the “petitioner must [also] demonstrate by specific factual proof that the services of an expert or an investigator are necessary to establish a ground for post-conviction relief, and that the petitioner is unable to establish that ground for post-conviction relief by other available evidence.” Id.
By the application of the Owens guidelines, it is apparent that the written motion of the petitioner fell below the requirements of Rule 13(2)(B)(10). The pleadings do not demonstrate that threshold of need. In our view, the post-conviction court correctly determined that the record is adequate, as indicated by the preceding section of this opinion, to review the claims of ineffective assistance of counsel. This issue, therefore, is without merit. See Edward Leroy Harris v. State, 947 S.W.2d 156 (Tenn.Crim.App., at Knoxville, 1996), app. denied, (Tenn., Feb. 3, 1997); Edward Jerome Harbison v. State, No. 03C01-9204-CR-00125, 1996 WL 266114 (Tenn.Crim.App., at Knoxville, May 20, 1996), app. denied, (Tenn., Nov. 12, 1996).
Y
Next, the petitioner contends the trial court refused to allow him to make an offer of proof through Dr. Lynn Zager. The petitioner claims this prevented him' from supporting with evidence his contention that his defense attorneys failed to properly prepare his insanity defense. During the hearing below, Dr. Zager was asked whether or not she developed an opinion regarding a connection between the urethra procedures the petitioner underwent during adolescence and the circumstances surrounding the murder, particularly the use of the tree branch to impale the victim. She testified that she formed a personal opinion about this connection, but was never directly asked about this during trial. She also testified that she had never before been asked to investigate a case in Shelby County “with an eye towards obtaining information which would be mitigation.” The reason for this, she explained, is because her facility, the Midtown Mental Health Center, primarily performs evaluations pursuant to court order and is not ordinarily asked to develop the possible mitigating circumstances of a crime.
Dr. Zager’s team first evaluated the petitioner for competency to stand trial; its second responsibility was to determine his sanity at the time of the offense. They concluded that the petitioner was competent but recommended a transfer to the Institute in Nashville for further evaluations. During the post-conviction proceeding, counsel for the petitioner asked Dr. Zager if she considered any of the information about the petitioner useful in terms of mitigation. She could not answer that question because that was not her focus during the evaluations. She confirmed that prior to the trial she had never performed an evaluation to determine mitigating circumstances. The trial court then allowed counsel to ask if she would be able to form an opinion now about the petitioner in terms of mitigation. Dr. Zager testified that she was not prepared to do so.
In our view, the petitioner was not denied the opportunity to make an offer of proof. In fact, the post-conviction judge told petitioner’s counsel they could make an offer of proof concerning any mitigating evidence she could supply. Dr. Zager was simply not prepared to do so.
VI
The petitioner contends the prosecutors asked inappropriate questions to one of the witnesses during the guilt phase; engaged in an improper argument during the penalty phase; failed to provide the defense with exculpatory evidence; and failed to provide the defense with a copy of the letter the victim’s family sent to the trial judge.
The first of these complaints, whether the prosecutor erroneously asked a witness if the petitioner had been arrested in Michigan, knowing no such charges existed, was addressed by our supreme court on the direct appeal. The ground therefore qualifies as previously determined. Tenn.Code Ann. § 40-30-112(a) (repealed 1995). See also House, 911 S.W.2d at 710-11. While the court found the conduct of the prosecutor to be reprehensible and unprofessional, it ruled that the error, in the context of the entire trial, was harmless. Alley, 776 S.W.2d at 519.
Next, the petitioner argues that the prosecutor diminished the jury’s responsibility during its argument in the sentencing phase of the trial. The state contends that the petitioner waived this argument by failing to present the issue on direct appeal. We agree. See Tenn.Code Ann. § 40-30-112(b) (repealed 1995). See also House, 911 S.W.2d at 713-14. During closing argument, the prosecutor responded to a defense argument for mercy: “if [the victim] chooses to have mercy, that is her right. That is not your right; that is not my right. That is not the right of the State of Tennessee.” The trial court properly informed the jury during in its charge that the jury could base its verdict upon sympathy for the petitioner. In our view, the state’s argument was not erroneous.
The petitioner also contends that the prosecutor improperly commented on the petitioner’s right to counsel and his right to remain silent. The petitioner has failed, however, to refer to the record or cite any authority to support his claim. Thus, the issue has been waived. Rule 10, Rules of the Court of Criminal Appeals.
The petitioner also contends that the prosecutor withheld evidence of Dr. Zager’s theory of the crime. Specifically, the petitioner contends that Dr. Zager testified she discussed her theory with both the prosecution and the defense, but that defense counsel denied receiving the information. This contention is without merit. Because Dr. Zager was acting under a court order, she reported her findings to both sides. Attorney Jones merely testified that he did not remember receiving this information. In our view, this testimony does not mean that the state withheld exculpatory evidence not in the possession of the defense; the petitioner has merely shown some discrepancies in the recollections of witnesses. McBee v. State, 655 S.W.2d 191, 195 (Tenn.Crim.App. 1988).
Finally, the petitioner contends the prosecutor committed reversible error by failing to provide the defense with a copy of the letter the trial judge received from the victim’s family. While the better practice would have been to provide the defense with a copy of the letter, we could not presume that the procedure prejudiced the rights of the petitioner to a fair trial. Similarly, the failure of the state to provide the defense with a copy of the letter, while it should have done so, appears to have been inadvertent and certainly did not affect the results of the trial.
VII
The petitioner contends that the trial judge was guilty of misconduct violative of his constitutional rights. First, the petitioner asserts the trial judge erred by refusing to allow the jury to view videotapes of the petitioner’s hypnotic and sodium amytal sessions. Our supreme court thoroughly reviewed this issue on direct appeal; it ruled that the trial judge acted appropriately. See Alley, 776 S.W.2d at 515-16. Thus, the issue has been previously determined. Tenn.Code Ann. § 40-30-112(a) (repealed 1995). See also House, 911 S.W.2d at 710-11. Furthermore, the petitioner asserts that the trial court erroneously allowed the jury to consider victim impact evidence. Again, our supreme court conducted an exhaustive review of this issue. See Alley, 776 S.W.2d at 511-13. While the court determined that the evidence was irrelevant and should not have been before the jury, it deemed the error harmless. Id. at 513. This claim has also been previously determined.
The petitioner also argues that “the court improperly interpreted the statutory and mitigating circumstances or the non-statutory mitigating circumstances so as to improperly limit the ability of the defense to present mitigation.” The- petitioner offers no other explanation for this claim and fails to refer to the record or any supportive authority. The issue, therefore, has been waived. Rule 10, Rules of the Court of Criminal Appeals. This issue is without merit.
VIII
The petitioner claims that certain jury instructions during the guilt and penalty phase of the trial were unconstitutional. Initially, the petitioner contended that the following instructions during the guilt phase of the trial were unconstitutional: (1) the definition of premeditation and deliberation; (2) the definition of malice which shifted the burden of proof; (3) reasonable doubt; and (4) the confession.
The first claim is based upon the ruling in State v. Brown, 836 S.W.2d 530 (Tenn.1992). In Brown, however, the supreme court did not hold that the instruction on premeditation and deliberation was unconstitutional; it merely suggested abandoning any instruction suggesting that premeditation may be formed in an instant. Id. at 543. This court has consistently held that Brown was not intended to be applied retroactively. See, e.g., Lofton v. State, 898 S.W.2d 246, 250 (Tenn.Crim.App.1994).
Second, the petitioner contends that the instruction on malice impermissibly shifted the burden of proof to the defense. The trial court instructed the jury that there can be express malice or implied malice, but that malice cannot be inferred from deadly intent only; the court also charged that the state always has the burden of proof with regard to every element of the crime and that an inference does not place any burden of proof of any kind upon the defendant. In our view, the instructions, in context, were not erroneous. See, e.g., State v. Bolin, 678 S.W.2d 40, 48 (Tenn.1984) (“a single instruction to a jury may not be judged in artificial isolation but must be viewed in the context of the overall charge”).
Third, the petitioner claims the reasonable doubt instruction, by use of the term “moral certainty,” violated his due process rights. Our supreme court has consistently upheld this very instruction under similar attacks. See, e.g., State v. Nichols, 877 S.W.2d 722, 734 (Tenn.1994).
Finally, with regard to the instructions on the confession, the petitioner argues that the instruction “limited the jury’s opportunity to consider evidence concerning reliability of a confession.” The petitioner does not advance any other argument in support of this claim and fails to offer any authority in support thereof. See Rule 10, Rules of the Court of Criminal Appeals. Thus, the claim has been waived. Moreover, the trial court instructed the jury that it was their duty to judge the truth of the confession and to consider all the circumstances surrounding the confession as well as any other evidence which contradicts the confession. In our view, this does not violate any constitutional provision. Thus, the claim is without merit.
The petitioner also contends that the jury instructions during the sentencing phase of the trial, as to the aggravating and mitigating circumstances, were unconstitutional. He insists that the instructions shifted the burden of proof to the petitioner to show the existence of mitigating evidence. An identical argument has previously been rejected by our supreme court. See, e.g., State v. Van Tran, 864 S.W.2d 465, 481 (Tenn.1993) (citing State v. Thompson, 768 S.W.2d 239, 251-52 (Tenn.1989); State v. Boyd, 797 S.W.2d 589, 595-96 (Tenn.1990)). Next, the petitioner claims the instructions failed to narrow the class of persons eligible for the death penalty. This argument has also been rejected by our supreme court. Id. at 481-82. The petitioner also contends that the instructions limited the jury’s consideration of mitigating factors, such as sympathy. Again, this particular argument has been rejected in prior cases. Id. at 480.
Next, the petitioner claims the instructions diminish the role of the jury in imposing the death penalty. He offers no argument in support of his position. Our death penalty statute has, however, been upheld repeatedly under similar constitutional attacks. See Id. See also State v. Black, 815 S.W.2d 166 (Tenn.1991). The petitioner also contends that the instruction on the heinous, atrocious or cruel aggravating circumstance was vague and over broad. This contention is also without merit. See, e.g., State v. Hines, 919 S.W.2d 573, 587 (Tenn.1995), cert. denied, — U.S. -, 117 S.Ct. 133, 136 L.Ed.2d 82 (1996). The petitioner also contends that the instruction on the aggravating circumstances duplicated an element of the crime itself. See State v. Middlebrooks, 840 S.W.2d 317 (Tenn.1992). Otherwise, the petitioner offers no supportive argument. Because the petitioner was convicted of premeditated first degree murder, there could be no Middlebrooks issue. This argument is without merit.
The petitioner next claims that the instruction which allowed the application of more than one aggravating circumstance to be based upon the same set of facts is unconstitutional. The petitioner suggests this constitutes impermissible “double counting.” Again, the petitioner does not support his claim with argument or citation to legal precedent. Thus, there really is no merit to this claim. See Tenn.Code Ann. § 39-13-204. Finally, the petitioner claims that the reasonable doubt instruction, inclusive of the term “moral certainty,” given during the sentencing phase of the trial is unconstitutional for the same reasons cited in the preceding section. Again, we disagree based upon a litany of prior decisions by our supreme court.
IX
The petitioner argues that the Tennessee death penalty statute is unconstitutional. Our supreme court ruled upon this argument on the direct appeal of this case. Alley, 776 S.W.2d at 518. The issue, therefore, has been previously determined. Tenn.Code Ann. § 40-30-112(a) (repealed 1995). See also House, 911 S.W.2d at 710-11. Other eases also demonstrate that this broad claim is without merit. See, e.g., State v. Smith, 893 S.W.2d 908 (Tenn.1994); State v. Brimmer, 876 S.W.2d 75 (Tenn.1994); State v. Cazes, 875 S.W.2d 253 (Tenn.1994); State v. Smith, 857 S.W.2d 1 (Tenn.1993); State v. Black, 815 S.W.2d 166 (Tenn.1991); State v. Boyd, 797 S.W.2d 589 (Tenn.1990); State v. Teel, 793 S.W.2d 236 (Tenn.1990); State v. Thompson, 768 S.W.2d 239 (Tenn.1989).
CONCLUSION
The record fully supports the post-conviction court’s findings and conclusions. The petitioner has not met his burden of proof. We conclude that the petition for post-conviction relief was properly denied. Accordingly, the judgment of the post-conviction court is affirmed.
HAYES and BARKER, JJ., concur.
Tennessee Supreme Court Rule 12 provides as follows: Trial Judge’s Report in Cases of First Degree Murder. The report, a copy of which is appended to this rule, shall be completed in its entirety by the trial judge in all first degree murder cases in which life imprisonment or a sentence of death is imposed. In the event more than one defendant is convicted in a first degree murder case, a separate report shall he completed for each defendant. The report shall be submitted to the defendant’s counsel for such comments as counsel desires to make concerning the factual accuracy of the report. If counsel desires, those comments in response shall be attached to the report. This report shall likewise be submitted to the attorney for the state who may also attach comments to the report. It shall be the responsibility of the trial judge to compile, or cause to be compiled, all information required by this rule, to certify its accuracy, and to transmit it forthwith to the Clerk of the Supreme Court, sitting in Nashville, after denial of motion for new trial. A duplicate copy shall be included in the technical record.
Sedley ALLEY, Petitioner-Appellant, v. Ricky BELL, Respondent-Appellee.
No. 99-6659.
United States Court of Appeals, Sixth Circuit.
Argued: July 30, 2002.
Decided and Filed: Oct. 3, 2002.
Robert L. Hutton (briefed), Glankler & Brown, Memphis, TN, Paul R. Bottei (argued and briefed), Federal Public Defender’s Office, Nashville, TN, for Petitioner-Appellant.
Joseph F. Whalen, III (argued and briefed), Asst. Atty. Gen., Office of the Attorney General, Nashville, TN, for Re-spondenfi-Appellee.
Before RYAN, BOGGS, and BATCHELDER, Circuit Judges.
OPINION
BOGGS, Circuit Judge.
Petitioner Sedley Alley was convicted of the 1985 kidnapping, rape, and murder of United States Marine Corps Lance Corporal Suzanne Marie Collins and was sentenced to death. His conviction and sentence were affirmed on direct appeal, and Alley was denied relief in state post-conviction proceedings. Alley’s petition for federal habeas relief, filed pursuant to 28 U.S.C. § 2254, was denied by the United States District Court for the Western District of Tennessee in an exhaustive and well-reasoned opinion. For the reasons herein, we affirm the district court’s denial of Alley’s petition.
I
Alley, a civilian married to a military person, abducted nineteen-year old Lance Corporal Collins while she was jogging near Millington Naval Base in Millington, Tennessee late in the evening of July 11, 1985. He attacked and murdered her and left her body in a field.
Two marines jogging near where Collins was abducted heard Collins scream and ran toward the sound. However, before they reached the scene, they saw Alley’s car drive off. They reported to base security and accompanied officers on a tour of the base, looking for the car they had seen. Unsuccessful, they returned to their barracks.
Soon after returning to their quarters, however, the marines were called back to the security office, where they identified Alley’s car, which had been stopped by officers. Alley and his wife gave statements to the base security personnel accounting for their whereabouts. The security personnel were satisfied with Alley’s story, and Alley and his wife returned to their on-base housing.
Collins’s body was found a few hours later, and Alley was immediately arrested by military police. He voluntarily gave a statement to the police, admitting to having killed Collins but giving a substantially false — and considerably more humane — account of the circumstances of the killing.
Alley was convicted on March 18, 1987 of murder in the first degree and was sentenced to death. He was also convicted of aggravated kidnapping and aggravated rape, for which he received consecutive forty-year sentences. The Tennessee Supreme Court affirmed Alley’s conviction and sentence on direct appeal. State v. Alley, 776 S.W.2d 506, 508-10, 519 (Tenn.1989).
Alley filed a state petition for post-conviction relief, alleging numerous grounds, including several claims of judicial bias, challenges to the trial court’s evidentiary rulings, and claims of ineffective assistance of counsel. The judge who presided over Alley’s trial held several hearings on the petition before denying it. On appeal, the Court of Criminal Appeals vacated the denial and, in response to Alley’s claims of judicial bias, remanded the case for an evidentiary hearing before a different trial judge. Alley v. State, 882 S.W.2d 810, 823 (Tenn.Crim.App.1994).
Another trial judge undertook an evi-dentiary hearing, and then denied Alley’s petition. Alley v. State, No. P-8040, slip op. (Shelby County Crim. Ct. Aug. 31, 1995). This disposition was affirmed by the Tennessee Court of Criminal Appeals, and the Tennessee Supreme Court denied Alley permission to appeal. Alley v. State, 958 S.W.2d 138 (Tenn.Crim.App.1997), permission to appeal denied, (Tenn. Sept. 29, 1997).
Alley filed the present petition for habe-as corpus in district court, and the court denied Alley relief. Alley v. Bell, 101 F.Supp.2d 588, 604-06, 666 (W.D.Tenn.2000). Thereafter, this court granted him a certificate of appealability on the following five issues: (1) whether Alley was denied due process because he was tried by a biased judge; (2) whether ex parte contacts between the judge and jurors in Alley’s case violated his constitutional rights; (3) whether, at the guilt phase, Alley was denied his right to present a full defense through the unconstitutional exclusion of proof that he suffers from multiple personality disorder; (4) whether, at the sentencing phase, Alley was denied his right to receive consideration of mitigating evidence when the trial court excluded the same multiple personality disorder evidence; and (5) whether Alley received constitutionally ineffective assistance of counsel.
II
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996), a federal court may not grant a writ of habeas corpus with respect to any claim that was adjudicated on the merits in state court, unless the state court’s adjudication: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
A state court decision is “contrary to” Supreme Court precedent “if the state court arrives at a conclusion opposite to that reached by [the Court] on a question of law,” or “if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to” the Court’s decision. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision involves an “unreasonable application” of clearly established Supreme Court precedent when it correctly identifies the governing legal standard but applies it to the facts of the case before it in an objectively unreasonable manner. Id. at 409-10, 120 S.Ct. 1495.-
Federal courts can only consider on habeas review claims that a petitioner has first raised before the state courts. See 28 U.S.C. § 2254(b); Stanford v. Parker, 266 F.3d 442, 451 (6th Cir.2001) (“Where a petitioner has not fully and fairly presented a federal claim to the state’s highest court ..., a federal court ordinarily will not consider the merits of that claim”). Claims not first raised in state court are unexhausted and are ordinarily dismissed without prejudice, in order to permit the petitioner the opportunity to pursue them in state court. Rose v. Lundy, 455 U.S. 509, 518, 520-22, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).
However, if an unexhausted claim would be procedurally barred under state law, that claim is procedurally defaulted for purposes of federal habeas review. See Coleman v. Thompson, 501 U.S. 722, 752-53, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Teague v. Lane, 489 U.S. 288, 297-99, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); Wainwright v. Sykes, 433 U.S. 72, 87-88, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir.2000) (“When a habeas petitioner fails to obtain consideration of a claim by a state court,... due to the petitioner’s failure to raise that claim before the state courts while state-court remedies are still available ..., that claim is proee-durally defaulted and may not be considered by the federal court on habeas review.”). In order to gain consideration of a claim that is procedurally defaulted, a petitioner must demonstrate cause and prejudice for the failure, or that a miscarriage of justice will result from the lack of review. Wainwright, 433 U.S. at 87, 90-91, 97 S.Ct. 2497; Seymour, 224 F.3d at 550.
These rules apply both to entirely new legal claims and new factual bases for relief; for a claim to be considered exhausted, “the habeas petitioner must have ‘fairly presented’ to the state courts the ‘substance’ of his federal habeas corpus claim.” Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982) (quoting Picard v. Connor, 404 U.S. 270, 275, 277-78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)); see also Wong v. Money, 142 F.3d 313, 322 (6th Cir.1998) (“the doctrine of exhaustion requires that a claim be presented to the state courts under the same theory in which it is later presented in federal court.”).
Judicial Bias Claims
Alley’s petition for a writ of habeas corpus lists thirteen alleged instances of judicial bias, which he contends entitle him to habeas relief on the ground that he was denied his due process right to a fair trial in a fair tribunal. In denying Alley’s petition for habeas relief, the district court helpfully divided these instances into three groups: (1) claims based on alleged conduct during state post-conviction proceedings; (2) claims that Alley raised before the state courts; and (3) claims that Alley failed to raise before the state courts. Alley, 101 F.Supp.2d at 612, 614-18, 634-38. On appeal, Alley only expressly challenges the district court’s holding with respect to the third group; however, we will briefly discuss the first two as well.
The due process clause of the Fourteenth Amendment guarantees a criminal defendant, as any litigant, the right to a fair trial in a fair tribunal. In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955). If a habeas court determines that bias by a state judge resulted in a constitutional violation, then the court is required to overturn the state court decision. See Maurino v. Johnson, 210 F.3d 638, 645 (6th Cir.2000) (“Because judicial bias infects the entire trial process it is not subject to harmless error review”). This court has looked to the Supreme Court’s decision in Liteky v. United States, 510 U.S. 540, 552, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994), to provide the standard for deciding judicial bias claims; in that case, the Court explained that “the pejorative connotation of the terms ‘bias’ and ‘prejudice’ demands that they be applied only to judicial predispositions that go beyond what is normal and acceptable.” Id. at 552, 114 S.Ct. 1147; see also Maurino, 210 F.3d at 645.
Two of the judicial bias claims Alley makes in his habeas petition deal with alleged conduct during state post-conviction proceedings. Alley claims that Judge W. Fred Axley made improper comments during Alley’s post-conviction proceedings, and that he expressed dissatisfaction with the litigation of post-conviction proceedings in other capital cases. However, error committed during state post-conviction proceedings can not provide a basis for federal habeas relief. Kirby v. Dutton, 794 F.2d 245, 247 (6th Cir.1986). Therefore, these allegations are not cognizable on habeas review.
Several of Alley’s other claims for judicial bias have already been considered and rejected by the Tennessee Court of Criminal Appeals. Alley, 958 S.W.2d at 147-49. These include Alley’s contentions that: (1) Judge Axley engaged in undisclosed ex parte contact with members of the victim’s family, who sent him a letter; (2) Judge Axley engaged in ex parte contact through his wife’s sitting in the courtroom with the victim’s family during the trial; (3) Judge Axley permitted members of the victim’s family to enter a hallway through which access could be had to the judge’s chambers and the jury room; (4) Judge Axley pressured mental health professionals involved in the case to speed up their mental examinations of Alley; and (5) Judge Ax-ley included false statements in the “Rule 12” report he prepared after trial and submitted to the Tennessee Supreme Court as part of the direct appeal process.
The state court having rejected these contentions on the merits, this court can only grant Alley’s petition if the state court’s determination was contrary to, or an unreasonable application of, Supreme Court case law. 28 U.S.C. § 2254(d).
In rejecting Alley’s judicial bias claim, the state court found that the judge’s receipt of a letter from the victim’s family was not evidence of bias, because the judge did not respond to the letter. Alley, 958 S.W.2d at 149. Similarly, the state court found no evidence of bias in the general accusation that the judge’s wife sat near the victim’s family during trial, or in the proximity of the judge’s chambers to areas of the courthouse to which the family members had access. Ibid. The state court found no basis at all for Alley’s contention that the Judge pressured the mental health teams involved in Alley’s trial. Id. at 148. Finally, Jhe state court noted that the Rule 12 report can not form the basis for an allegation of bias, as it is merely used to assist the Tennessee Supreme Court in its statutory duty to review the record in death penalty cases by providing the judge’s analysis of what evidence was presented. Ibid. The district court held that these determinations were neither contrary to, nor an unreasonable application of, Supreme Court case law, Alley, 101 F.Supp.2d at 637, and Alley presents nothing with which to challenge that holding on appeal.
Alley does challenge the district court’s holding with respect to the third set of judicial bias claims. Alley’s petition sets out several claims that the district court held were procedurally defaulted, because Alley had failed to raise them before the state courts.
First, Alley contends that the trial judge deprived him of due process by engaging in undisclosed ex parte conversations with two students during his trial and opining to them after the trial was completed about the likelihood that Alley’s death sentence would ever be carried out. The basis for this allegation is an affidavit from one of the students, wherein he states that he and another student were invited by Judge Axley to watch the trial, and that during breaks they would go into Judge Axley’s chambers to discuss the case with him. During these discussions, the student states, Judge Axley seemed unfavorably disposed toward Alley and appeared not to believe his multiple personality defense. The affidavit goes on to state that, after the verdict was handed down, Judge Axley said something to the effect of “[t]he son of a bitch will die of old age before he ever goes to the chair.”
Second, Alley claims that Judge Axley engaged in undisclosed ex parte conversations with jurors during trial. This allegation is based on the affidavit of one juror, and the affidavit of an investigator who interviewed a second juror. The juror’s affidavit states that, in response to calls from the jury, “[t]he Judge came into the jury room on two or three occasions, and answered two or three questions we had during the deliberations. One of the questions we had concerned the difference between the lesser included charges of murder.” The investigator’s affidavit states that another juror told her that on a weekend when the court was not in session, the jurors had a picnic and Judge Axley and his son stopped by to say hello and check on the jurors.
Alley also alleges, but does not dwell upon, several other claims of judicial bias that he failed to raise before the state courts. For instance, Alley argues that Judge Axley engaged in undisclosed ex parte contact with members of the victim’s family, who sent him a Christmas card. Alley also argues that the judge excluded Alley’s hypnosis videotapes on the basis of the judge’s personal belief that it lacked credibility. Further, Alley argues that the judge demonstrated hostility toward his counsel and used profanity toward him. Finally, Alley alleges that the judge expressed relief upon sentencing Alley to death.
These allegations fail to present a viable claim of constitutionally-impermissible judicial bias. First, ex parte contact does not, in itself, evidence any kind of bias. Further, the opinions Judge Axley is alleged to have expressed' — -an unfavorable disposition toward Alley, a belief that Alley would never actually be put to death, and hostility toward Alley’s trial counsel — all arose from what happened at trial. Except in extreme cases, to be actionable, bias must stem from an extra-judicial source:
[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.
Liteky, 510 U.S. at 555, 114 S.Ct. 1147. None of Alley’s allegations come close to stating a claim for judicial bias.
More importantly, however, these claims are proeedurally defaulted. As explained above, unexhausted claims that would be barred by a state rule are proeedurally defaulted and ordinarily may not be considered by a federal court on habeas review. Seymour, 224 F.3d at 549-50. In the present case, Alley’s claims would be barred both by Tennessee’s one-year post-conviction statute of limitations, tenn.Code Ann. § 40-30-202, and by the state’s post-conviction waiver rule, tenn Code Ann. § JO-SO^OOCDJg). As also explained above, in order for a petitioner to overcome a procedural default and receive federal habeas review of that claim, he must show cause for the default and prejudice resulting from it, or that enforcing the procedural default in his case will effect a miscarriage of justice. Wainwright, 433 U.S. 72, 87, 90-91, 97 S.Ct. 2497, 53 L.Ed.2d 594. Cause for a procedural default “must be something external to the petitioner, something that cannot fairly be attributed to him.” Coleman, 501 U.S. at 753, 111 S.Ct. 2546. Alley makes no attempt on appeal to make a cause and prejudice or miscarriage of justice showing.
Instead, Alley argues that he is entitled to an evidentiary hearing in the district court to further develop his judicial bias claim. The district court declined to hold an evidentiary hearing on Alley’s claims. Alley, 101 F.Supp.2d at 666. We review a district court’s decision not to conduct an evidentiary hearing for an abuse of discretion. Lott v. Coyle, 261 F.3d 594, 602 (6th Cir.2001).
The only basis Alley offers for overturning the district court’s decision is his contention that he merits an evidentiary hearing based on the Supreme Court’s decision in (Michael) Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000), which was decided after the district court’s decision in the present case. However, Williams is inapplicable to Alley’s case; accordingly, the district court did not abuse its discretion in deciding not to conduct an evidentiary hearing on this issue.
If a habeas petitioner has “failed to develop the factual basis of a claim in State court proceedings,” he can only get an evidentiary hearing in federal district court on that claim in extremely narrow circumstances. 28 U.S.C. § 2254(e)(2). The petitioner must show that:
(A) the claim relies on—
(1) 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 factfinder would have found the applicant guilty of the underlying offense.
Ibid. However, in Williams, the Court held:
Under the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.
Williams, 529 U.S. at 432, 120 S.Ct. 1479 (emphasis added). Accordingly, the Court held that petitioners need not meet the strict requirements for an evidentiary hearing set out in § 2554(e)(2) in cases where the failure to develop the necessary factual basis of a claim in state court was not due to a lack of diligence on the petitioner’s part. Ibid. The Court went on to explain that whether a petitioner exercised the diligence necessary to preserve a claim “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.” Id. at 435.120 S.Ct. 1479.
In Williams, the prosecutor at trial had represented a juror in her divorce proceeding, but neither' the juror nor the prosecutor spoke up at voir dire when the jurors were asked if they knew any of the lawyers involved. Id. at 440-41, 120 S.Ct. 1479. Williams’s attorneys did not find out about this until the federal habeas stage; however, the Court held that Williams was entitled to a hearing on the claim, because the fact that the evidence was not developed earlier was solely the fault of the reticent juror and prosecutor. Id. at 442-43, 120 S.Ct. 1479. Williams, the Court held, had not exhibited a “lack of diligence” with respect to the claim. Id. at 437, 120 S.Ct. 1479.
Contrary to the petitioner in Williams, who had no reason to suspect that the juror would know the prosecutor and thus potentially be biased, Alley had every reason to suspect that Judge Axley was allegedly biased against him. Indeed, as the district court in this case pointed out, “judicial bias has been the petitioner’s watchword ever since he was convicted.” Alley, 101 F.Supp.2d at 618. Alley alleged judicial bias as a central issue in his first state post-conviction petition. Alley got an evi-dentiary hearing on this issue, among others, when the court of appeals vacated Judge Axley’s denial of Alley’s post-conviction petition and remanded his case to a new judge. At that hearing, Alley raised the five claims of judicial bias discussed above and presented testimony and evidence to support those claims. The Court in Williams held that whether a petitioner was sufficiently diligent to preserve a claim “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.” Id. at 435, 120 S.Ct. 1495' (emphasis added). Given Alley’s awareness of alleged judicial bias on the part of Judge Axley, and, indeed, the fact that Alley received an evidentiary hearing in state court, Alley should have conducted further investigation at that time. “[I]n light of the information' available at the time,” Alley can be credited with the responsibility to have come up with these additional bases earlier. Ibid.
Accordingly, the rule set out in Williams does not save Alley from the strict requirements for an evidentiary hearing set out in § 2254(e)(2). See Moss v. Hofbauer, 286 F.3d 851, 859 (6th Cir.2002) (explaining that Williams makes § 2254(e)(2) inapplicable when the petitioner exercised the necessary diligence to develop the factual record in state court); Greer v. Mitchell, 264 F.3d 663, 680-81 (6th Cir.2001) (same). Therefore, since Alley does not even contend that he can fulfill the requirements for an evidentiary hearing set out in § 2254(e)(2), the district court certainly did not abuse its discretion in refusing to hold one.
Ex Parte Contact Claims
In addition to arguing that Judge Axley’s alleged ex parte contacts with the jurors showed judicial bias, Alley also contends that the alleged contacts violated Alley’s constitutional right “to personal presence at all critical stages of [his] trial.” Rushen v. Spain, 464 U.S. 114, 117, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983). As the district court pointed out, Alley procedurally defaulted this claim by failing to raise it in the state court. Alley, 101 F.Supp.2d at 614-15.
Just as in the previous issue, Alley does not argue cause and prejudice or miscarriage of justice to excuse his default, but instead argues that he merits an evidentia-ry hearing on the matter, pursuant to Williams, 529 U.S. at 432, 120 S.Ct. 1479. Just as in the previous issue, Williams does not help Alley, because he faded to exhibit the necessary diligence in attempting to develop the factual record in state court. Id. at 435, 120 S.Ct. 1495.
First, as stated above, Alley was on notice with regard to alleged improper conduct by Judge Axley at the time of his state post-conviction proceedings, and he received an evidentiary hearing on the issue. See, e.g., Alley, 958 S.W.2d at 147-49. It would, therefore, have been reasonable for Alley to have inquired further with regard to the judge’s actions during his trial.
More importantly, however, Alley was on notice about potential irregularities with respect to the jury. He argued in his state post-conviction case that, during his trial, the victim’s family had access to a private hallway that led only to Judge Axley’s chambers and the jury room. Alley, 958 S.W.2d at 149. Indeed, Alley’s trial counsel testified at the evidentiary hearing held by the state trial court post-remand that the victim’s father “was going back in towards the back where nobody but the judge and the jury stays” throughout the trial. Alley’s trial counsel makes the same allegation in an affidavit submitted to the district court along with Alley’s federal habeas petition.
Since Alley’s trial counsel was both aware of, and alleging, the possibility of contact between the victim’s family and the jury during trial, Alley’s failure to interview any jurors before the federal habeas stage does not constitute “a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court.” Williams, 529 U.S. at 435, 120 S.Ct. 1479. It is, therefore, clear that Alley did not make the diligent effort required by Williams to develop in state court the factual basis for his ex parte claim; for this reason, Alley can not avoid the requirements for an evi-dentiary hearing set out in 28 U.S.C. § 2254(e)(2). Since Alley is unable to fulfill the requirements of that section, we must affirm the district court’s denial of Alley’s request for an evidentiary hearing on this issue as well.
Exclusion of Evidence at the Guilt Phase
Alley contends that the state trial court denied him the ability to present a full defense, in violation of his rights to due process and confrontation, when the court refused to admit into evidence videotaped interviews of Alley while under hypnosis and Sodium Amytal.
Alley’s defense at trial was that he was insane at the time of the murder, because he suffered from multiple personality disorder (also called dissociative identity disorder). The most favorable medical testimony to this effect came from psychologist Dr. Allen Battle and psychiatrist Dr. Willis Marshall, both of whom based their diagnoses on interviews that Dr. Battle had conducted of Alley while under hypnosis. Dr. Battle had videotaped these interviews, and Dr. Marshall — who was not present during the interviews — based his conclusion on a viewing of the tapes.
The prosecution moved for the tapes to be excluded, and the district court heard testimony oh the issue outside of the jury’s presence. Dr. Battle testified that hypnosis was one of the methods of choice in diagnosing multiple personality disorders, and that he had conducted the taped interviews in accordance with recognized principles in the field. Dr. Battle testified that the jury would benefit from viewing the tapes, because it would help the jury to understand his diagnosis.
Dr. William Gentry testified for the state at the in limine hearing and testified that juries tend to be confused by and place too much weight upon hypnotic testimony. He testified that people can lie under hypnosis, and that the hypnotic state produces different levels of consciousness that can only be understood from a clinical perspective, not from a lay perspective.
The trial judge viewed the tapes and found them to be sensational, unreliable, and likely to confuse the jury. He also found that the tapes elicited no facts about what happened on the night of the murder. He weighed the probative value of their use against the risk that the tapes might confuse or mislead the jury and granted the state’s motion to exclude them. Specifically, the judge ruled that the tapes could not be shown to the jury, and that “statements or words and actions of the defendant while under hypnosis [could not] be related to the jury by a witness.” However, the judge held that witnesses could testify that the interviews were conducted, and they could express their opinions as to whether multiple personalities were present during the interviews.
Drs. Marshall and Battle did just that. Dr. Marshall testified that Alley suffered from multiple personality disorder, and he stated that Alley exhibited at least two alternate personalities (one called “Power” or “Death,” and a female named “Billie”). Marshall testified that he based this opinion on his viewing of the two videotaped hypnosis interviews, during which “Power” emerged. Marshall stated that it was his opinion, based on his viewing of the videotaped interviews, that Power was legally insane. Dr. Marshall further testified, both on the basis of the videotaped interviews and other interviews Dr. Marshall had conducted with Alley, that there was evidence that Power was in control at the time of the murder.
Testifying prior to the trial court’s ruling excluding the videotape evidence, Marshall described to the jury a portion of one of the hypnosis interviews, during which Alley struggled with himself, spoke in a whisper, and repeatedly tried to choke himself. Marshall explained that Alley says he feels one of the others choking him whenever he tries to speak about his alternate personality, Billie.
In addition to discussing the videotapes, Dr. Marshall described in detail the ways in which his alternate personality diagnosis was consistent with various aspects of Alley’s case. First, Marshall explained that during both an initial interview and the Sodium Amytal interviews Marshall had conducted, Alley spoke of both Death and Billie being in the car with him the night of the murder. Marshall also testified at length about Alley’s childhood and adult life, and he explained how both were consistent with having a multiple personality disorder. Indeed, he explained, Alley’s brother — observing Alley’s strange actions and character — had come to the conclusion several years earlier that Alley had multiple personalities. Finally, Marshall detailed how Alley had suffered from memory lapses and distortions throughout most of his life, and he explained that this “is probably the most common sign of multiple personality.”
For his part, Dr. Battle testified that he had treated more than a dozen cases of multiple personality disorder throughout his career. Dr. Battle then explained that he had hypnotized Alley on several occasions, and that, based on those interviews, it was his opinion that Alley suffered from the condition. Like Dr. Marshall, Dr. Battle testified about Alley’s childhood, and how he believed experiences during that time led to the development of alternate personalities. He also testified about Alley’s memory loss and the significance he saw in that.
Dr. Battle talked about two alternate personalities. Battle explained that Alley was aware of the existence of Billie, an alternate personality that stemmed from Alley’s troubled childhood. However, Battle testified at greater length regarding the second alternate personality, Power. Battle testified to having had contact with Power through the hypnosis sessions, and he testified that Power was psychotic. He explained that Power claimed not to be bound by the rule of law and recognized no limitations on his behavior. Battle stated that it was his opinion that Alley suffered from the disorder at the time of the murder. Battle further testified that there was evidence tending to suggest that Power was in control at the time of the murder, including the fact that the nature of the crime fit more with Power’s personality than it did with Alley’s. However, Dr. Battle said that he could not be sure that an alternate personality was in control during the murder. For this reason, on cross-examination, Dr. Battle admitted that he could not support an insanity defense in Alley’s case.
On direct appeal, the Tennessee Supreme Court rejected Alley’s contention that the trial court had erred in excluding the tapes. The court held that
audio or video tapes recording a defendant’s statements and conduct while under hypnosis or truth serums, when offered as evidence of the basis of an expert’s opinion as to the defendant’s mental condition, may be admitted or excluded in the exercise of the trial court’s discretion after weighing the probative value of the tape as part of the basis for the expert’s opinion, against the risk that the tape might confuse or mislead the jury or be improperly considered as independent proof of the facts recited and shown therein. Where the tapes are not admitted the admission of testimony of the details of what the defendant said while under hypnosis or truth serum is likewise within the trial court’s discretion.
Alley, 776 S.W.2d at 515-16. After.viewing the tapes, the court held that the trial judge had not abused his discretion. Id. at 516.
The Tennessee court also rejected Alley’s contention that the trial judge violated the rule enunciated in Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). In Rock, the Supreme Court held that a defendant’s due process right to testify was violated by a state per se rule excluding all hypnotically refreshed testimony. Id. at 56. Alley had argued that the trial judge in his case had effectively instituted such a per se rule; however, the Tennessee court rejected this contention, noting that the trial court had weighed the probative value of the tapes in question against its prejudicial effect. Alley, 776 S.W.2d at 516.
Alley’s argument to this court, put simply, is that his due process rights were violated by the trial court’s exclusion of the hypnosis tapes, because the interview contained therein was the basis for his doctors’ opinions that he suffered from multiple personality disorder. As such, Alley contends that the tapes were the centerpiece of the key issue at trial. Without being able to show the tapes to the jury or refer to the actions or words contained therein, Alley argues that his defense was eviscerated. Further, Alley points out that the prosecution was able to cross-examine his doctors and call their own experts in order to call into doubt the verity of the alleged multiple personality manifestations, and his doctors could not refer to specifics of the tapes in order to bolster their views.
In support of his argument, Alley cites Supreme Court case law for the proposition that a defendant’s due process rights are violated when a trial court excludes from the jury’s consideration evidence that is vital to the defendant’s defense. See, e.g., Rock; Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986); Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). The Supreme Court has written of these three cases: “The exclusions of evidence that we declared unconstitutional in those cases significantly undermined fundamental elements of the accused’s defense.” United States v. Scheffer, 523 U.S. 303, 315, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). Alley claims that he merits habeas relief, because the trial court’s exclusion of the interview tapes was contrary to this clearly established Supreme Court law.
Keeping in mind the strictures of AEDPA, - it is clear that the Tennessee Supreme Court’s decision in this case was neither contrary to, nor an unreasonable application of, clearly estabhshed Supreme Court case law. The Supreme Court cases Alley cites do not stand for the proposition that a petitioner’s due process rights are violated any time a state court excludes evidence that the petitioner believes is the centerpiece of his defense. Instead, the cases Alley cites stand for the more limited proposition that a defendant’s due process rights are violated when a state court excludes important evidence on the basis of an arbitrary, mechanistic, or per se rule, or one that is disproportionate to the purposes it is designed to serve.
In Washington, a Texas prisoner was not permitted at trial to present the testimony of a co-conspirator that tended to show that he was innocent because of a Texas statute that prohibited co-conspirators from testifying for each other, although they were permitted to testify for the prosecution. 388 U.S. at 16-18, 87 S.Ct. 1920. The Supreme Court reversed the prisoner’s conviction on the ground that Texas’s rule “arbitrarily” deprived him of his right to present witnesses in his defense. Id. at 23, 87 S.Ct. 1920.
In Chambers, the Supreme Court reversed a Mississippi state court conviction when, on the basis of the state’s hearsay rule, the state court refused to admit testimony that someone else had committed the crime. 410 U.S. at 289-90, 93 S.Ct. 1038. The Court noted that the proffered testimony was trustworthy and admissible under a common exception to the hearsay rule not adopted in Mississippi, and wrote: “That testimony also was critical to Chambers’ defense. In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Id. at 302, 93 S.Ct. 1038 (emphasis added).
In Crane, a state court, after holding that a defendant’s confession was voluntary, excluded all evidence with respect to the circumstances under which the confession had been attained, even though the circumstances called into question the confession’s credibility. 476 U.S. at 684-86, 106 S.Ct. 2142. The Court reversed the conviction, noting that “the blanket exclusion of the proffered testimony about the circumstances of petitioner’s confession deprived him of a fair trial.” Id. at 690, 106 S.Ct. 2142 (citing Chambers, 410 U.S. at 302-03, 93 S.Ct. 1038).
In Rock, the Court wrote that a “State’s legitimate interest in barring unreliable evidence does not extend to per se exclusions that may be reliable in an individual case.” 483 U.S. at 61, 107 S.Ct. 2704. The Court cited Washington and Chambers and held that “restrictions of a defendant’s right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve.” Id. at 55-56, 107 S.Ct. 2704.
Finally, in Scheffer, the Court considered a blanket rule of evidence in military courts that excluded all polygraph evidence. 523 U.S. at 308, 118 S.Ct. 1261. The Supreme Court upheld even this blanket rule, because it did not eviscerate the defendant’s defense. Id. at 314-15, 118 S.Ct. 1261. Though Scheffer is not directly relevant in this case because it came out long after the state court decisions at issue in Alley’s petition, the Scheffer Court reconfirmed that application of evidentiary rules “do[es] not abridge an accused’s right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’ ” Id. at 308, 118 S.Ct. 1261 (quoting Rock, 483 U.S. at 56, 107 S.Ct. 2704).
In short, the state court’s exclusion of Alley’s videotape evidence was not contrary to the clearly established law of the cases Alley cites, because the exclusion was not based on an arbitrary, mechanistic, or per se application of the state’s evidentiary rules and it was not disproportionate to the purposes behind it. It was clearly not mechanistic or per se, as the court made an individual determination-— after watching the videos and based on the facts specific to Alley’s case — that the likely prejudice from admitting the tapes outweighed their probative value. It was not arbitrary, as the ruling applied to both the prosecution and the defense. Finally, the rule under which the evidence was excluded is not disproportionate to the concerns it is intended to address, because by considering and weighing pieces of evidence individually, it avoids over-breadth and the incidental exclusion of evidence that is reliable and relevant.
Relying on a Ninth Circuit case collecting these Supreme Court cases, Alley argues that a defendant’s rights are violated any time a state evidentiary ruling excludes a piece of evidence critical to the defense. See DePetris v. Kuykendall, 239 F.3d 1057, 1062 (9th Cir.2001) (“The Supreme Court has made clear that the erroneous exclusion of critical, corroborative defense evidence may violate both the Fifth Amendment due process right to a fair trial and the Sixth Amendment right to present a defense.”). But see LaGrand v. Stewart, 133 F.3d 1253, 1266 (9th Cir.1998) (“These cases, taken together, stand for the proposition that states may not impede a defendant’s right to put on a defense by imposing mechanistic (Chambers) or arbitrary ('Washington and Rock) rules of evidence.”).
However, the evidence excluded in this case did not take the legs out from under Alley’s defense. His defense was based on the fact that he suffered from multiple personality disorder, and, among other evidence, Alley presented two doctors who testified to that. Both discussed Alley’s condition in detail and supported their conclusions with extensive discussion of Alley’s case, his childhood, and his adult life.
Further, Alley does not offer a challenge to the validity of the trial court’s concern that the videotape evidence was potentially confusing and unreliable. The fact that the doctors were not permitted to show or refer to in court the details of the raw data upon which they based their opinion, because the state court reasoned that the data would be too confusing and unreliable, may or may not have been error. However, the exclusion of the tapes was not arbitrary, mechanistic, per se, or disproportionate to the concern of the trial court and the rule that the tapes were unreliable, confusing, and irrelevant.
It is well settled that the Constitution does not guarantee a defendant the opportunity to present any evidence he desires:
New rights are more fundamental than that of an accused to present witnesses in his own defense. In the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.
Chambers, 410 U.S. at 302, 93 S.Ct. 1038 (citations omitted); see also Crane, 476 U.S. at 690, 106 S.Ct. 2142 (“[W]e have never, questioned the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliability — even if the defendant would prefer to see the evidence admitted.”). It is therefore clear that “even relevant evidence may constitutionally be excluded ‘if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or, misleading the jury.’ ” Sanders v. Freeman, 221 F.3d 846, 859 (6th Cir.2000) (quoting Fed.R.Evid. 403; and Tenn. R. Evid. 403). Rather than apply an arbitrary, mechanistic, per se, or disproportionate rule that would have been contrary to clearly established Supreme Court case law, the state court in Alley’s case weighed the value of the evidence against its potential for confusion and unreliability, and excluded it. In these circumstances, we can not grant a writ of habeas corpus.
Exclusion of Evidence at the Sentencing Phase
Alley next argues that, even if his constitutional rights were not violated by the trial court’s exclusion of the videotape evidence at the guilt phase of his trial, they were violated by the court’s exclusion of the evidence at the sentencing phase.
At the beginning of his sentencing hearing, Alley moved for admission of the hypnosis and Sodium Amytal videotapes, and the trial court denied his motion. On direct appeal to the Tennessee Supreme Court, Alley argued that this was error, because the evidence was relevant to two potential mitigating circumstances, tenn. Code Ann. § 39-2-203(j)(2) & (8) (1982) (repealed). Petitioner’s Brief to the Tennessee Supreme Court at 34. He further argued that he had a constitutional right to present all relevant mitigating evidence. Ibid.
The Tennessee Supreme Court rejected Alley’s argument, holding that the two cited mitigating factors required “evidence of defendant’s condition at the time the crime was committed.” Alley, 776 S.W.2d at 516 (emphasis in original). The court held that the video contained “no evidence whatever ... of defendant’s mental or emotional state or his ability or lack of ability to appreciate right from wrong or control his conduct on the evening of 11 July 1985.” Ibid. The court also held, more generally, that — just as in the guilt phase' — the trial court did not abuse its discretion in weighing and excluding the videotape evidence at the sentencing phase. As explained above, the trial court had viewed the tapes and had held that they were unreliable and, since they provided no information about the day of the murder, irrelevant.
On habeas review, the district court agreed with the Tennessee Supreme Court. It held that there was no evidence to support Alley’s claim that the video contained relevant mitigating evidence. Even if there were such evidence, however, the court held meritless Alley’s contention that “a state court cannot exclude inadmissible or irrelevant evidence from a death penalty hearing.” Alley, 101 F.Supp.2d at 640.
On appeal, Alley contends .that the Supreme Court’s decisions in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), make clear that “a capital sentencing jury may not be precluded from considering any mitigating evidence presented-by the capital defendant.” Petitioner’s Brief at 55.
As an initial matter, we reject the contention Alley makes in his brief to this court, that the AEDPA standard of review does not apply- to this issue because the state courts did not adjudicate Alley’s Eighth Amendment claim. Petitioner’s Brief at 58-60. This is both factually and legally incorrect.
Alley’s brief to the Tennessee Supreme Court argued that the trial court erred in excluding the videotapes because they were relevant to mitigation, and Alley had the constitutional “right to present all relevant evidence in mitigation.” The Tennessee Supreme Court held, in response, that the tapes did not contain relevant evidence, because the mitigating factors cited by Alley required evidence of mental state at the time of the crime. The tapes, on the other hand, provided only evidence of Alley’s mental state at the time of the taping (approximately 1-2 years later). Since Alley’s constitutional claim was that he was entitled to present all relevant mitigating evidence, the state supreme court’s determination that the evidence was not relevant mitigating evidence was an adjudication of that claim.
However, even if the Tennessee court had failed to adjudicate Alley’s claim explicitly, when a state court decision articulates its reasoning but fails to address the relevant federal standard, this court on habeas review still applies AEDPA and determines whether the state court’s decision was “ ‘contrary to’ clearly established Supreme Court precedent as of the time of its decision.” Doan v. Brigano, 237 F.3d 722, 731 (6th Cir.2001); see also Harris v. Stovall, 212 F.3d 940, 943 (6th Cir.2000) (following the lead of other circuits in holding “that where the state court has not articulated its reasoning, federal courts are obligated to conduct an independent review of the record and applicable law,” but noting that the independent review “is not a full, de novo review of the claims, but remains deferential because the court cannot grant relief unless the state court’s result is not in keeping with the strictures of the AEDPA.”).
As already mentioned, the Tennessee Supreme Court held that the videotape evidence was inadmissible under Tennessee state law, upholding the state trial court’s determination that the evidence was unreliable and irrelevant. This court does not have'the authority to review the Tennessee Supreme Court on matters of state law': See Gall v. Parker, 231 F.3d 265, 303 (6th Cir.2000) (“Principles of comity and finality ... command that a habeas court can not revisit a state court’s interpretation of state law, and in particular, instruct that a habeas court accept the interpretation of state law by the highest state court on ' a petitioner’s direct appeal.”). Accordingly, the question before this panel is whether the exclusion of the videotape evidence, irrelevant and inadmissible under state law, was contrary to the Supreme Court’s decision in Lockett.
The Supreme Court has explained the rule in Lockett and its progeny as follows:
“ ‘[T]he sentencer [shall] ... not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.’ ”
Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986) (quoting Eddings, 455 U.S. at 110, 102 S.Ct. 869 (quoting Lockett, 438 U.S. at 604, 98 S.Ct. 2954)) (emphasis in original).
It is clear that this rule limits the traditional discretion of state courts to exclude evidence based on state evidentiary rules. However, nothing in the Supreme Court cases cited by Alley compels the conclusion that state courts do not retain some discretion to apply their rules of evidence at the sentencing phase. See, e.g., Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (overturning a death sentence on the ground that Georgia’s hearsay rule had been applied “mechanistically” to exclude relevant mitigating evidence); see also Sallahdin v. Gibson, 275 F.3d 1211, 1237 (10th Cir.2002) (after reviewing the Lockett line of cases, explaining that “[t]his is not to say, however, that a trial court must admit any and all mitigation evidence proffered by a capital defendant. Review of the above-cited cases indicates that proffered mitigation evidence must be reliable and relevant to be admitted.”); Paxton v. Ward, 199 F.3d 1197, 1214 (10th Cir.1999) (“This Supreme Court authority makes clear that a state court may not apply a state rule of evidence in a per se or mechanistic manner so as to infringe upon a defendant’s constitutional right-to a fundamentally fair trial and to present mitigating evidence in a capital proceeding.”); Buchanan v. Angelone, 103 F.3d 344, 348-49 (4th Cir.1996) (application of Virginia’s hearsay rule to exclude mitigating evidence from a capital sentencing hearing did not rise to the level of a constitutional violation); Hutchins v. Garrison, 724 F.2d 1425, 1437 (4th Cir.1983) (“We find no indication that Eddings and Lockett preempt all state rules of evidence”). Indeed, the Court in Lockett, 438 U.S. at 604 n. 12, 98 S.Ct. 2954, explicitly held that “[n]othing in this opinion limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant’s character, prior record, or the circumstances of his offense.”
In the present case, the Tennessee courts did not exclude from the jury’s consideration at sentencing the alleged fact of Alley’s multiple personality disorder. Indeed, Alley had the opportunity to present wide-ranging evidence on this aspect of Alley’s character. Instead, the state court, after viewing the tapes, merely weighed and then precluded introduction of the videotapes allegedly showing manifestations of this disorder, because it held the tapes irrelevant and unreliable. Further, as explained above, the court did not do so based on a per se rule, or a mechanical, arbitrary, or disproportionate application of a state rule. The state court may have erred in its weighing; however, Alley has simply not shown that this state evidentia-ry decision was contrary to clearly established Supreme Court case law.
Ineffective Assistance of Counsel Claim
Finally, Alley argues that he received constitutionally ineffective assistance of counsel when his trial counsel failed to investigate and present to the jury additional medical evidence at both the guilt and sentencing phases of his trial. Specifically, Alley contends that his counsel failed to present evidence of brain damage, spina bifida, an underdeveloped penis, a distorted bladder, aberrant kidneys, and problems Alley experienced at birth. Alley argues that his counsel’s failure to investigate these conditions further and present evidence of them to the jury fell below the standard of reasonableness, and that his counsel’s failure prejudiced him in that the jury would not have sentenced him to death if they’d known these things.
Alley raised this issue in his post-conviction proceedings before the Tennessee Court of Appeals, and this was one of the issues addressed at the evidentiary hearing held in the trial court after the court of appeals remanded Alley’s case. The trial judge who replaced Judge Axley held an extensive evidentiary hearing and undertook a detailed analysis of the record in the case. Alley’s relevant allegations of ineffectiveness were substantially the same as he raises to this court — that his attorneys failed sufficiently to investigate and present evidence of birth and childhood medical problems that might have lent weight to his insanity defense at the guilt phase and mitigation at the sentencing phase.
The testimony taken by the trial court and the conclusions it reached, summarized by the Tennessee Court of Appeals, make clear that Alley’s attorneys conducted a thorough investigation ■ into Alley’s history. Alley, 958 S.W.2d at 140-47, 150-51. His attorneys testified that they interviewed Alley’s sister, mother, and wife about Alley’s childhood and medical history. Id. at 144. His family provided the attorneys with information regarding Alley’s strange behavior as a child, a diving accident in which Alley sustained a head injury, and extensive urethral, bladder, and kidney problems Alley suffered as. a child. Ibid. However, the family did not inform Alley’s attorneys about any problems at Alley’s birth. Id. at 147.
Alley’s attorneys arranged for him to undergo neurological examinations, which showed no indication of brain damage. Id. at 146. Further, Alley’s attorneys arranged for him to be examined by several medical professionals, and Alley’s attorneys passed on to them the information and records they’d obtained of Alley’s past medical history. Ibid. None of the medical experts consulted by Alley’s attorneys suggested the need for birth records, ibid., and indeed testimony at the trial court hearing suggested that these records were not regularly sought. Id. at 141.
The state trial court, after viewing the records and information proffered by Alley and hearing the testimony of all of the experts, concluded that Alley’s trial counsel had sufficiently investigated and presented Alley’s medical history. Alley, No. P-8040, slip op. at 18-19. The court noted that all of the experts who testified at trial, for both sides, agreed that the medical records Alley proffered would not have changed their conclusions. Id. at 18. Further, the court explained that, “[e]x-cept for the birth records, most of the records about the petitioner’s illnesses and surgeries, involving his kidneys, bladder and penis, were presented to the jury in Drs. Battle and Marshall’s testimony.” Id. at 18-19.
On post-conviction appeal, the Tennessee Court of Criminal Appeals upheld the trial court’s decision. Alley, 958 S.W.2d at 149-52. Citing the standard for constitutionally ineffective assistance of counsel set out in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the appeals court sought to determine whether Alley had shown that his counsel had not rendered reasonably effective assistance and whether Alley had suffered prejudice from his counsel’s deficient performance. Alley, 958 S.W.2d at 149. The court of appeals noted that “[tjhe trial court found that the defense attorneys were effective in their representation of the petitioner.” Ibid. Citing testimony from the trial court, the appeals court agreed, finding that “[t]he record demonstrates that defense counsel spent a great deal of time in the selection and preparation of trial. The petitioner was examined by several in the medical profession.” Id. at 150. The court held, accordingly, that Alley had not been denied effective assistance. Id. at 152.
The Tennessee court having considered and adjudicated Alley’s ineffective assistance argument on the merits, and having applied the Strickland standard in its analysis, the first question for this court under AEDPA is whether it was objectively unreasonable for the state court to hold that the investigation and presentation of Alley’s medical history undertaken by Alley’s attorneys did not fall “below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. See Bell v. Cone, 535 U.S. 685, -, 122 S.Ct. 1843, 1852, 152 L.Ed.2d 914 (2002) (“under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. Rather, [petitioner] must show that the [state court] applied Strickland to the facts of his case in an objectively unreasonable manner.” (citation omitted)).
Undisputed testimony elicited by the state trial court shows that the attorneys in this case sought out details of Alley’s medical history from the people who knew him best, and passed all of the information they received on to medical experts they had hired to examine Alley and assist in the case. When they were told of Alley’s childhood head injury, they ordered neurological testing, which came back negative. Further, Alley’s attorneys presented evidence on the conditions Alley proffered, with the exception of the alleged birth defects. With respect to the birth records, as mentioned before, Alley’s family never informed the attorneys about any problems at birth, and the medical experts involved in the case never asked for birth records.
In arguing that this panel should find the state court’s rejection of Alley’s ineffectiveness argument an unreasonable application of Strickland, Alley points to this court’s decision in Glenn v. Tate, 71 F.3d 1204 (6th Cir.1995). However, this case does not help Alley. First, Glenn was not decided under the AEDPA standard of review, which serves to restrict greatly the circumstances under which federal courts can grant a writ of habeas corpus. Second, the facts of Glenn significantly differ from those of the present case. In Glenn, the petitioner was convicted of murdering a sheriffs deputy while trying to break his older brother out of jail. Id. at 1205-06. The petitioner suffered organic brain damage prior to birth, was classified as mentally retarded, and was considered, as a result, completely under the influence of his older brother. Id. at 1205. However, Glenn’s lawyers engaged in virtually no preparation, failed to present any of this information at Glenn’s sentencing hearing, and failed even to request appointment of medical experts until nine days before Glenn’s hearing. Id. at 1208-09. In the present case, Alley’s lawyers engaged in extensive preparation and investigation (including testing Alley for organic brain damage), and they found and presented a great deal of evidence and testimony about Alley’s mental state and medical past.
This panel simply can not hold in these circumstances that it was objectively unreasonable for the state court to hold that the investigation and presentation of Alley’s medical history undertaken by Alley’s attorneys did not fall “below an objective standard of reasonableness.” Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. Accordingly, we affirm the district court’s denial of Alley’s habeas petition on this issue.
Ill
For the foregoing reasons, we AFFIRM the district court’s denial of Alley’s petition for a writ of habeas corpus.
tenn.Code Ann. § 40-30-206 reads in relevant part: (f).... If the facts alleged [in a post-conviction petition], taken as true, fail to show that ... the claims for relief have not been waived or previously determined, the petition shall be dismissed .... (g) A ground for relief is waived if the petitioner personally or through an attorney failed to present it for determination in any proceeding before a court of competent jurisdiction in which the ground could have been presented unless: (1) The claim for relief is based upon a constitutional right not recognized as existing at the time of trial if either the federal or state constitution requires retroactive application of that right; or (2) The failure to present the ground was the result of state action in violation of the federal or state constitution.
Alley argues before this court that the state trial judge’s evidentiary ruling violated his rights under the Confrontation Clause. U.S. Const, amend. VI. However, Alley has procedurally defaulted this claim by failing to raise it before the state courts in the same way that he procedurally defaulted the judicial bias claims he failed to raise in state court. Seymour, 224 F.3d at 549-50. Accordingly, we will focus on Alley's due process claim.
Alley alleges that the exclusion from evidence of his Sodium Amytal interviews violated his constitutional rights. However, Alley’s brief focuses solely on the import of the hypnosis sessions. We will, therefore, limit our discussion similarly; since we hold that the trial judge did not violate Alley’s due process rights by excluding the hypnosis tapes, which Alley contends were central to his defense, we are safe to assume that the judge did not violate Alley's rights by excluding the Sodium Amytal tapes, about which Alley makes no such claim.
Alley contends, without reference to specific examples that the ruling was arbitrary, in that prosecution witnesses were permitted to refer to the videotapes in ways that defense witnesses were not. Petitioner’s Brief at 53-54. However, a review of the record simply does not support this contention.
At the time, tenn.Code Ann. § 39-2-2030(2) provided for a mitigating circumstance when the defendant was under the influence of extreme mental and emotional disturbance, and tenn.Code Ann. § 39 — 2—203{j)(S) was applicable in cases of substantial impairment of the defendant's appreciation of the wrongfulness of his conduct as a result of a mental disease, defect, of intoxication insufficient to establish a defense to the crime. tenn.Code Ann. § 39-2-203 (1982) (repealed).
In his brief, Alley implicitly asks this court to overturn the Tennessee court’s state law holding. He repeatedly asserts that' under Tennessee law, the rules of evidence are not applicable at sentencing hearings; therefore, according to Alley and contrary to the Tennessee court’s holding, the proffered videotape evidence was admissible. See Petitioner’s Brief at 55, 57-58. We can not so hold.
Alley relatedly challenges the district court’s denial of his request for funding in order to conduct brain and genetic tests aimed at garnering additional evidence of medical impairments that his trial attorneys failed to investigate or present. 21 U.S.C. § 848(q)(9), which applies to death penalty-eligible criminal defendants and habeas petitioners, provides: Upon a finding that investigative, expert, or other services are reasonably necessary for the representation of the defendant, ... the court may authorize the defendant’s attorneys to obtain such services on behalf of the defendant and, if so authorized, shall order the payment of fees and expenses therefor (emphasis added) In an order denying Alley’s request for funding, the district court in this case held that funding for such tests was not reasonably necessary for Alley's habeas petition, because Alley failed to demonstrate how the tests were relevant to the only question before the district court — "whether the state courts reasonably applied federal law in holding that his trial counsel did not provide ineffective assistance.” This holding was clearly correct; therefore, we affirm the district court's denial of Alley's request for funding.
Sedley ALLEY, Petitioner-Appellee, v. Ricky BELL, Warden, Respondent-Appellant.
No. 04-5596.
United States Court of Appeals, Sixth Circuit.
Argued: June 16, 2004.
Decided and Filed: Dec. 14, 2004.
ARGUED: Joseph F. Whalen III, Office of the Attorney General, Nashville, Tennessee, for Appellant. Paul R. Bottei, Federal Public Defender’s Office, Nashville, Tennessee, for Appellee. ON BRIEF: Joseph F. Whalen III, Office of the Attorney General, Nashville, Tennessee, for Appellant. Paul R. Bottei, Federal Public Defender’s Office, Nashville, Tennessee, for Appellee.
Before: BOGGS, Chief Judge; and RYAN and BATCHELDER, Circuit Judges.
OPINION
BOGGS, Chief Judge.
Sedley Alley, a Tennessee prisoner under sentence of death, filed an unsuccessful petition for a federal writ of habeas corpus. Alley v. Bell, 307 F.3d 380 (6th Cir.2002), cert. denied, 540 U.S. 839, 124 S.Ct. 99, 157 L.Ed.2d 72 (2003); - U.S. -, 124 S.Ct. 1721, 158 L.Ed.2d 406 (2004). His execution was scheduled for June 3, 2004. Mr. Alley then filed an amended motion with the federal district court that had originally denied his habeas petition; this motion requests relief from judgment under Fed.R.Civ.P. 60(b), and/or relief “in the exercise of th[e district] court’s inherent authority” under Article III of the Constitution, and was accompanied by a motion for stay of execution. The district court granted a stay of execution, pending this court’s decision in the en banc case of In re Abdur’Rahman, Nos. 02-6547, 02-6548 (argued Dec. 3, 2003).
The State of Tennessee, on behalf of the respondent, Warden Ricky Bell, has moved us to vacate that stay. For the reasons discussed below, we hold, applying Ab-dur’Rahman, that the district court lacked jurisdiction over Alley’s amended motion, because it is equivalent to a second or successive habeas petition under 28 U.S.C. § 2244(b). We therefore grant the State’s motion to vacate the stay of execution on this basis, and do not address any of the other issues raised in this appeal.
I
In 1985, Suzanne Collins was abducted while jogging near Millington Naval Base, sexually mutilated, and killed. Alley lived on the base, and his car was spotted on the scene shortly after two witnesses heard Collins scream. After Miranda warnings, Alley confessed to having killed Collins while drunk, and led officers back to the scene where the murder took place. He also confessed to having mutilated her with a long, broken-off tree branch, a claim which was consistent with the grave internal injuries that Collins suffered, and led police to the place where the tree limb had been broken off. Alley contended that he did this in order to simulate a sexual assault, and thereby (in his thinking) deflect suspicion from himself. He gave police some other purported details of the killing that were inconsistent with the forensic evidence.
Alley went to trial for Collins’s murder in 1987. He did not contest having committed the act, but instead pursued an insanity defense. He presented evidence that he suffered from a multiple personality disorder, and had committed the murder while under the control of an abnormal personality. Alley sought to offer into evidence videotapes of interview sessions conducted while Alley was under the influence of hypnosis and/or sodium amytal. The trial court excluded this taped evidence on relevance grounds, but allowed Alley to present the testimony of two medical experts who described the interviews, and other evidence, in the course of opining that Alley suffered from insanity.
The jury convicted Alley of kidnapping, aggravated rape, and premeditated first degree murder. The jury then imposed a sentence of death for the murder, and the trial court imposed consecutive forty-year sentences for the remaining two counts. The jury found two aggravating circumstances to justify the punishment of death: the murder was especially heinous, atrocious, or cruel; and Alley committed it during a kidnapping or rape. Alley’s conviction and sentence were upheld on direct appeal. State v. Alley, 776 S.W.2d 506 (Tenn.1989).
Alley then sought post-conviction relief in state court. His post-conviction petition raised claims of judicial bias, challenged a number of the state trial court’s evidentia-ry rulings, asserted that Alley had received ineffective assistance of counsel, and claimed that the Tennessee “heinous, atrocious, or cruel” aggravating instruction read to Alley’s jury at sentencing was unconstitutionally vague. The Tennessee Court of Criminal Appeals affirmed the denial of most of the claims, but ruled that Alley was entitled to an evidentiary hearing on his claims of judicial bias. Alley v. State, 882 S.W.2d 810 (Tenn.Crim.App.1994). The trial court (with a new judge) held an evidentiary hearing, then denied Alley’s petition, and the Court of Criminal Appeals affirmed the denial. Alley v. State, 958 S.W.2d 138 (Tenn.Crim.App.1997), permission to appeal denied, (Tenn. Sept. 29, 1997).
Next, Alley filed a petition for a writ of habeas corpus in federal district court. This petition raised claims that substantially overlapped with the issues in his state postconviction petition. However, Alley argued for the first time in his habe-as petition that the trial court’s exclusion of Alley’s videotaped testimony under hypnosis violated the Confrontation Clause as well as due process. Alley’s habeas petition also included the non-defaulted claim that the “heinous, atrocious, or cruel” (henceforth “HAC”) aggravating instruction was unconstitutionally vague.
The district court denied relief, finding a number of Alley’s claims procedurally defaulted, and denying the rest on the merits. Alley v. Bell, 101 F.Supp.2d 588 (W.D.Tenn.2000). This court granted Alley a certificate of appealability on several issues. On appeal, we affirmed the denial of habeas relief. We upheld the district court’s rulings on procedural default, and, as to the claims that Alley had properly presented to the state courts, we affirmed the district court’s holding that the state courts’ rejection of Alley’s claims was not an unreasonable application of Supreme Court law. Alley, 307 F.3d 380. Alley petitioned for en banc rehearing, which was denied, and certiorari from the Supreme Court, which was also denied, 540 U.S. 839, 124 S.Ct. 99, 157 L.Ed.2d 72 (Oct. 6, 2003). Our mandate, which had been stayed while Alley sought a writ of certiorari, issued on October 27, 2003.
On October 10, 2003, Alley filed a motion in the federal district court for relief from judgment under Fed.R.Civ.P. 60(b). The district court entered an order on November 4, 2003, staying the proceedings on Alley’s motion pending the outcome of the en banc proceeding in In re Abdur’Rakman, Nos. 02-6547, 02-6548 (argued Dec. 3, 2003), involving the question of when a Rule 60(b) motion in a habeas case should be deemed a second or successive habeas petition under 28 U.S.C. § 2244(b). The State apparently responded to this order by requesting the Tennessee Supreme Court to set an execution date for Alley. On January 16, 2004, the Tennessee Supreme Court ordered that Alley’s sentence be carried out on June 3, 2004.
In response, on May 12, 2004, Alley filed with the district court a “First Amended Motion Requesting Relief In the Exercise of This Court’s Inherent Authority, And/Or Relief From Judgment, And/Or Certificate of Appealability,” the filing at issue here, which we will henceforth refer to simply as the “Motion.” As the Motion’s title suggests, it invokes both Rule 60(b), and what are contended to be the district court’s “inherent powers” to grant relief under Article III of the Constitution, as alternative bases for relief.
The Motion disclaims any intention to file or pursue a second or successive habe-as petition, and explicitly objects to the potential recharacterization of the Motion as a second habeas, a form of objection recently sanctioned by the Supreme Court in Castro v. United States, 540 U.S. 375, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003). However, the Motion argues that Alley is entitled to relief from judgment due to a variety of legal and factual developments that occurred after the denial of Alley’s federal habeas petition.
First, it asserts that Alley is entitled to relief because “various legal developments” have demonstrated the error of the district court’s rejection of his constitutional vagueness challenge to the Tennessee HAC aggravator — principally this court’s intervening decision in Cone v. Bell, 359 F.3d 785 (6th Cir.2004), which granted ha-beas relief to a death-sentenced petitioner who challenged the Tennessee HAC instruction given at his trial.
Second, it asserts that Alley is entitled to relief because he “was denied a fair consideration of his Brady claims” due to the withholding of exculpatory evidence in both his state court trial and his federal habeas proceeding. Relief is appropriate under Rule 60(b), Alley argues, in part because this alleged withholding continued during his federal habeas corpus proceedings, and thus constitutes “fraud on the court.” (citing, inter alia, Workman v. Bell, 227 F.3d 331, 335 (6th Cir.2000) (en banc)).
Third, Alley’s Motion asserts that he is entitled to relief on his claim (which the district court previously rejected) that the state trial court unconstitutionally excluded videotaped evidence of Alley’s behavior under hypnosis. Alley argues that the Tennessee Supreme Court’s intervening decision in State v. Carter, 114 S.W.3d 895 (Tenn.2003), which held that it was error to exclude a defendant’s personal correspondence proffered as mitigating evidence, shows that he is entitled to relief from the prior habeas judgment on this basis.
Simultaneously with filing the First Amended Motion, Alley moved for a stay of execution. On May 19, 2004, the district court entered a brief order staying Alley’s execution. It noted that a stay had been granted in Cooey v. Bradshaw, 216 F.R.D. 408 (N.D.Ohio 2003), motion to vacate stay denied, 338 F.3d 615 (6th Cir.2003) (en banc), in part because of the pendency of Ahdur’Rahman and its possible relevance to Cooey’s Rule 60(b) motion. Accordingly, the district judge entered a stay, which, by its terms, was to remain in place until Abdur’Rahman is decided and the district judge has ruled on Alley’s First Amended Motion in light of that decision.
Five days later, the State tendered to this court a motion to vacate the district court’s stay of execution. This motion was filed on May 25. The matter was automatically docketed and assigned to the present panel, which had decided Alley’s original habeas appeal. See 6th Cir. I.O.P. 22(a)(1). In its motion to vacate the stay, the State argued in the alternative. It claimed that if, on one hand, Alley’s Motion was really a second habeas petition, then, under AEDPA, the district court lacked jurisdiction to act on it. Alternatively, if the Motion was properly treated as a Rule 60(b) motion, then it was clearly without merit, making the entry of the stay an abuse of discretion in either case. Against this, Alley argued that the district court’s stay of execution was analogous to the stay upheld by this court en banc in Cooey, and that the Motion, considered as a Rule 60(b) motion, was sufficiently meritorious to deserve full consideration by the district court, especially in light of the pendency of AbdurRahman.
On May 28, this panel entered an order declining to vacate the stay of execution at that time, scheduling the matter for oral argument on June 16, 2004, and requesting supplemental briefing on a number of issues relating to the potential application of Rule 60(b) to Alley’s Motion. The parties filed supplemental briefs addressing these issues.
During oral argument, we also requested (and later received) supplemental briefing on a further issue: whether the federal Anti-Injunction Act, 28 U.S.C. § 2283, barred the federal district court from entering a stay of execution in response to Alley’s Motion for post-judgment relief in this habeas case. As is discussed below, we do not reach that issue.
II
A
We begin instead by considering whether the entry of a stay was jurisdic-tionally proper. In the absence of extraordinary circumstances, we cannot consider the propriety of Alley’s Motion under the standards of Rule 60(b), or the merits of the underlying claims that he seeks to revive, unless the district court’s subject-matter jurisdiction to act as it did is first assured. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); id. at 110-11, 118 S.Ct. 1003 (O’Connor, J., concurring). In this case, the underlying substantive questions raised by Alley’s Motion are by no means trivial. Accordingly, no potential exception to the rule that subject-matter jurisdiction must precede other questions is applicable here. See ibid.; Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999).
More specifically, the question before us is whether Alley’s Motion should have been treated as a second or successive habeas petition under AEDPA. This question implicates subject-matter jurisdiction, because under AEDPA, a petitioner must obtain authorization from the court of appeals “[bjefore a second or successive [habeas] application ... is filed in the district court.” 28 U.S.C. § 2244(b)(3)(A). “From the district court’s perspective,” this provision is “an allocation of subject-matter jurisdiction to the court of appeals,” rather than the district court, over the initial processing of a second or successive habeas petition. United States v. Barrett, 178 F.3d 34, 41 (1st Cir.1999); Nunez v. United States, 96 F.3d 990, 991 (7th Cir.1996); see Robinson v. Johnson, 313 F.3d 128, 138 (3d Cir.2002); Workman v. Bell, 227 F.3d 331, 338 (6th Cir.2000) (en bane) (Siler, J.). Since Alley did not request permission from this court to file his Motion, it follows that, if the Motion is properly viewed as a second or successive habeas, then the district court lacked jurisdiction to consider it, and the stay of execution is invalid.
We recently considered the circumstances in which a post judgment motion should be treated as a second or successive habeas petition in In re AbdurRahman, 392 F.3d 174, 2004 Fed.App. 0428P, 2004 WL 2847749 (6th Cir. Dec. 13, 2004) (en banc). The majority of our court held that a filing counts as a successive habeas petition if its “factual predicate deals primarily with the constitutionality of the underlying ... conviction or sentence .... ” Id. at 181, 2004 WL 2847749, at *6 (quoting Rodwell v. Pepe, 324 F.3d 66, 70 (1st Cir.2003)). On the other hand, if the “factual predicate” of a filing “attacks the manner in which the earlier habeas judgment was procured,” then it falls outside of AEDPA’s limitations on successive habeas petitions — and, in the case of a motion under Rule 60(b), it should be adjudicated pursuant to the normal standards governing Rule 60(b) relief. Id. at 176-77, 2004 WL 2847749 at *1.
At issue in AbdurRahman was the status of a petitioner’s Rule 60(b) motion that asked the district court to vacate its earlier judgment dismissing his habeas petition on procedural default grounds. Abdur’Rah-man’s motion sought reconsideration on the ground that an intervening Tennessee Supreme Court rule had clarified (contrary to the district court’s holding) that he did not need to seek discretionary review from the state supreme court in order to properly preserve his claims of prosecutorial misconduct in the state courts. Id. at 6. Our court held that Abdur’ Rahman’s Rule 60(b) motion was not equivalent to a second or successive habeas petition. It reasoned that the motion simply “relate[d] to the integrity of the federal habeas judgment — and specifically, the basis for the district judge’s procedural default ruling.” Ibid. Furthermore, “[i]f Abdur’Rahman’s motion were granted, it would simply result in the reopening of the federal habeas proceeding, not the vacation of the state criminal judgment.” Id. at 6.
B
Applying the standard adopted in Ab-durRahman, we hold that Alley’s Motion should be classified as a second or successive habeas petition, with respect to each of the claims it contains.
The Motion raises three separate claims for relief. First, Alley argues that he is entitled to relief from the judgment based on this court’s intervening decision in Cone v. Bell, 359 F.3d 785 (6th Cir.2004), which upheld an Eighth Amendment vagueness challenge to the Tennessee HAC instruction in a capital sentencing proceeding. This claim plainly attempts to do the work of a second or successive habeas petition. The ‘Tactual predicate” of this claim is simply Cone itself, and the sole relevance of the Cone decision to the prior habeas proceeding is that it dealt with the same issues as the parallel constitutional vagueness challenge that Alley brought against the use of the HAC instruction in his own trial. (The district court rejected this claim on the merits in the previous habeas proceeding, and it was not encompassed in the certificate of appealability we issued to Alley prior to his appeal in this court.) As such, the Cone claim obviously “presents a direct challenge to the constitutionality of the underlying conviction .... ” AbdurRahman at 6. AEDPA therefore forecloses the district court from considering or acting on it, unless and until Alley satisfies the gatek-eeping criteria of 28 U.S.C. § 2244(b).
Our conclusion that one of Alley’s proposed grounds for Rule 60(b) relief is the functional equivalent of a second or successive habeas petition raises the question of whether we should proceed to consider the status of his other claims. Some of the language of our en banc opinion in Ab-durRahman, and of the opinions of other circuits that we drew upon in reaching our decision, could be read to imply that a putative Rule 60(b) motion should be subjected, in its entirety, to the restrictions that AEDPA places upon successive habe-as petitions, whenever the motion contains at least one claim that is preempted by AEDPA. See AbdurRahman at 6 (“[Wjhen a petitioner presents a direct challenge to the constitutionality of the underlying conviction ... the petition should be treated as a second or successive habeas petition. But if there is no such direct challenge and the petitioner instead challenges the integrity of the district court opinion ... then the district court must treat the motion as one pursuant to Rule 60(b).”) (emphases added); Rodwell, 324 F.3d at 71 (“[A] district judge should treat a Rule 60(b) motion in a habeas case as a second or successive habeas petition whenever the motion threatens to encroach upon precincts patrolled by the AEDPA .... In contrast, if the factual predicate of the motion challenges only the procurement of the federal habeas judgment, it may be adjudicated under Rule 60(b).”) (emphasis added).
However, neither AbdurRahman nor Rodwell actually involved a filing that contained multiple claims. Thus, our court and the First Circuit did not have the chance to consider the proper procedure for such a circumstance. We now hold that when a filing denominated under Rule 60(b) asserts several potential bases for relief, courts should follow a claim-by-claim approach when deciding whether the limitations on successive petitions set out in AEDPA apply to that filing. This claim-by-claim approach was recently embraced by the Third Circuit, in a decision which also employed the same case-by-case, “factual predicate” approach to the interaction of Rule 60(b) and AEDPA that our court adopted in Abdur’Rahmcm. See Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir.2004). Moreover, this approach fits best with the language of AEDPA, which, in various provisions, mandates a focus on individual “claims” in determining whether the limits imposed by the statute apply. See 28 U.S.C. §§ 2244(b)(1), (b)(2) (providing that “claims” that were presented in a previous habeas petition are subject to dismissal, and that “claims” presented for the first time in a successive habeas are subject to dismissal unless certain gatekeep-ing requirements are met); § 2254(d) (providing that relief cannot be granted based on habeas petition unless state court’s adjudication of a “claim” was unreasonable or contrary to clearly established Supreme Court law). We therefore turn to the remainder of the Motion.
Alley’s second claim is that he is entitled to relief from the judgment rejecting his Brady claim because he has recently discovered, through the use of a private investigator and other inquiries, exculpatory evidence that was not disclosed to him by the State. Alley asserts that this evidence suggests that John Borup, a boyfriend of Corporal Collins at the time of her murder, committed the crime, and accordingly, it would have supported a claim of Alley’s factual innocence of the murder (an argument that he did not pursue at trial).
Alley states that he has recently discovered evidence that Collins’s boyfriend Bor-up matched a description given of a person seen talking with Collins shortly before her abduction; and that he drove a car matching the description of one sighted near the scene. Alley alleges that the State failed to include, in its pretrial disclosures, a report that naval investigators had questioned Borup and that he had no useful information. Alley contends that because it possessed this report, the State must have possessed evidence relating to Borup’s physical description.
Further, Alley states that the State suppressed handwritten notes taken by state pathologist James Bell, who conducted the autopsy of Collins. Bell’s autopsy report was disclosed to Alley’s lawyers, but his notes were not. Bell apparently wrote that Collins could have died from her injuries as late as 1:30 to 3:30 a.m. on the night of the murder. Police had interviewed Alley around midnight on that night, and then released him, keeping him under surveillance for at least part of the time that followed.
Finally, Alley discerns a third example of putative nondisclosure in the trial testimony given by Craig Lahren, a forensic expert who was called by the government. Lahren testified that several hairs were recovered from Collins’s body, and that one of them was determined to have come from an African-American — meaning that it did not match Alley, who is white. Two other hairs recovered from Collins were identified as belonging to a Caucasian. Lahren stated that he was unable to do a fair or successful comparison of these hairs to Alley’s hair. Based on this statement in the record, Alley speculates that Lahren actually performed such a comparison and obtained a result potentially exculpating Alley.
Alley argues that this quasi-.Bra<% claim should be adjudicated under Rule 60(b), rather than as a successive habeas under AEDPA, because the State’s failure to disclose the alleged evidence continued through Alley’s federal habeas proceeding, and therefore constituted fraud on the district court. See Fed.R.Civ.P. 60(b) (stating that limitations of Rule 60 do not alter a district court’s power “to set aside a judgment for fraud upon the court”); Workman v. Bell, 245 F.3d 849, 852 (6th Cir.2001).
We note that the claim of “fraud on the court” that Alley has articulated in connection with his Brady argument in this case is essentially indistinguishable from a standard Brady constitutional claim that is being asserted for the first time after the completion of a first federal habeas proceeding. Such a claim would, as such, be a classic example of a second or successive habeas petition. In his Motion, Alley provides no basis for concluding that the attorneys representing the State in federal court carried out a deliberate or reckless fraud on the federal district court, except for a pair of conclusory assertions that the evidence that was not produced to him at trial was also “withheld ... throughout the prior proceedings in [the district] [c]ourt.” Motion at 3; see id. at 28. In his filings before this court, Alley has attempted to supplement this allegation slightly. He points to the fact that an Assistant District Attorney General who represented the State of Tennessee during Alley’s state posi-eonviction proceedings also made a special appearance at one point in Alley’s federal habeas case. This, however, is insufficient to make out a sufficient allegation of fraud on the federal habeas court, and thereby bring Alley’s Brady challenge out of the ambit of AED-PA and into that of Rule 60(b). While a Brady violation can be established by the mere inadvertent nondisclosure of material exculpatory evidence in a petitioner’s state criminal trial, Spirko v. Mitchell, 368 F.3d 603, 610 (6th Cir.2004) (citing Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)), fraud on the court requires a showing that an officer of the court whose judgment is under attack acted in a manner that is “intentionally false, wilfully blind to the truth, or is in reckless disregard for the truth.” Workman, 245 F.3d at 852. Here, even if we assume that the putative nondisclosures raised by Alley could satisfy the Brady standards with respect to his state trial, his allegations do not provide any “factual predicate” for the claim that the state attorneys who litigated the prior habeas proceeding recklessly or wilfully concealed those matters from the federal district court. Accordingly, Alley’s factual allegations cannot be said to impugn the manner in which the federal habeas judgment was procured, and these late-raised Brady claims are therefore subject to the limitations of AEDPA rather than Rule 60(b). Cf. Abdur’Rahman at 6.
Finally, Alley’s Motion asserts that he is entitled to relief from the judgment rejecting his claim that his trial violated due process and the Eighth Amendment because the trial judge excluded, from both the guilt and sentencing phases of trial, certain proffered evidence that Alley suffered from a multiple personality disorder. The trial judge excluded videotapes of interviews conducted with Alley under hypnosis, concluding that these tapes were likely to confuse a lay jury. However, he allowed Alley to bring this material before the jury in another form, by presenting the testimony of two medical experts describing his condition. The experts testified that they had viewed the tapes of Alley’s hypnotic states and that they confirmed a diagnosis of multiple personality disorder.
Both the federal district court and this court rejected Alley’s claim that the exclusion of the tapes unconstitutionally impaired his right to present a defense, see, e.g., Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); Cham bers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), or his right to present mitigating evidence at capital sentencing, Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Echoing the district court, we noted that the Tennessee Supreme Court had affirmed the trial court’s ruling that the videotapes were inadmissible. Alley, 307 F.3d at 393-94; see State v. Alley, 776 S.W.2d 506-516 (Tenn.1989). We concluded that since the trial court had allowed Alley to present the information in question to the jury in a slightly different format than the one he sought to employ, and it had not applied the relevant state evidentiary law in a “mechanical, arbitrary, or disproportionate” manner, the Tennessee court’s resolution of the issue was not unreasonable or contrary to Lockett. 307 F.3d at 399.
Alley now contends that he is entitled to relief from this judgment because of the Tennessee Supreme Court’s intervening decision in State v. Carter. Carter held that the state trial court had erred by excluding from the defendant’s capital sentencing hearing evidence of cards, letters, and poems that he had sent to his pastor, which the defendant sought to introduce as mitigating evidence of good character. The trial court excluded the items on the ground that they duplicated the pastor’s testimony. The Tennessee Supreme Court reversed (though it went on to hold the error harmless), emphasizing that Tennessee law provides for “the liberal admission of mitigation evidence in the penalty phase and ensures that a jury will have as much information as possible in making its sentencing determination.” 114 S.W.3d at 905. That court did not call into question its prior decision in Alley, or indicate that Tennessee law had been altered in this respect.
We have considerable doubt as to whether Alley, in this portion of his Motion, has articulated any sort of claim for relief, let alone a proper claim for relief from judgment, independent of a constitutional claim, that would escape the strictures of AEDPA. To the extent that Alley asserts that an erroneous application of state law at his sentencing proceedings requires postjudgment relief, this cannot present any basis for action, since our court has no authority to revisit the Tennessee Supreme Court’s application of Tennessee evidentiary law to the facts of this case. Alley, 307 F.3d at 398 & n. 6. And to the extent Alley argues that Carter bolsters the merits of the Lockett claim in his habeas petition, he is arguing that his conviction is infirm on federal constitutional grounds — which means that his present claim is subject to the limitations of AED-PA. The Eighth Amendment cases springing from Lockett employ a special concept of “constitutionally relevant mitigating evidence,” Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998); DePew v. Anderson, 311 F.3d 742, 744 (6th Cir.2002), that is not reducible to the question of whether state relevance law has been obeyed. Accordingly, if Alley’s claim invoking Carter is to be construed as having any possible substance, then it must be construed as a claim that “deals primarily with the constitutionality of the underlying ... sentence,” Abdur’Rahman at 5 (quoting Rodwell, 324 F.3d at 70). Accordingly, it, too, should be treated as an attempt to do the work of the second or successive habeas petition.
Ill
Alley also argues that the district court is empowered to grant him relief from judgment under “the exercise of [its] inherent authority” under “Article III of the United States Constitution.” Motion, p.l. He contends that, to the extent that AED-PA, 28 U.S.C. § 2244(b), is construed to divest the district court of jurisdiction to grant him the relief he requests, it is unconstitutional.
These arguments are clearly inapposite in the present context. As we have discussed in Part II above, Alley’s claims are substantially equivalent to successive requests for a writ of habeas corpus. Congress possesses broad powers to regulate the availability of habeas corpus relief. If any constitutional provision acts as a limit to AEDPA and/or Rule 60(b) here, it is the Suspension Clause, U.S. Const, art. I, § 9, el. 2. And the contours of this clause are wide enough to accommodate the limits Congress imposed on successive habeas relief in AEDPA. The Supreme Court demonstrated this in Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996), which unanimously upheld, against a Suspension Clause challenge, AEDPA’s new jurisdictional limits on the filing and adjudication of successive habeas petitions in the federal district courts. As relevant to Alley’s argument here, the Court explained:
[AEDPA] requires a habeas petitioner to obtain leave from the court of appeals before filing a second habeas petition in the district court. But this requirement simply transfers from the district court to the court of appeals a screening function which would previously have been performed by the district court as required by 28 U.S.C. § 2254 Rule 9(b). The Act also codifies some of the preexisting limits on successive petitions, and further restricts the availability of relief to habeas petitioners. But we have long recognized that “the power to award the writ by any of the courts of the United States, must be given by written law,” Ex parte Bollman, 4 Crunch 75, 94, 2 L.Ed. 554 (1807), and we have likewise recognized that judgments about the proper scope of the writ are “normally for Congress to make.” Lonchar v. Thomas, 517 U.S. 314, 323, 116 S.Ct. 1293, 1298, 134 L.Ed.2d 440 (1996).
The new restrictions on successive petitions constitute a modified res judicata rule, a restraint on what is called in habeas corpus practice “abuse of the writ.” In McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), we said that “the doctrine of abuse of the writ refers to a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions.” Id. at 489, 111 S.Ct. at 1467. The added restrictions which the Act places on second habeas petitions are well within the compass of this evolutionary process, and we hold that they do not amount to a “suspension” of the writ contrary to Article I, § 9.
Id. at 664. Turpin straightforwardly requires us to reject Alley’s Article III argument here.
IV
Thus, if Aley’s Motion is anything, it is a second or successive habeas petition. Accordingly, the district court lacked jurisdiction to consider it — and thus, a fortiori, to enter a stay of execution. 28 U.S.C. § 2244(b)(3)(A). In this circuit, the usual course of action when a petitioner improperly files a successive habeas petition with the district court is to transfer the filing to a panel of this court to apply the gatekeeping criteria of § 2244(b) to it. In re Sims, 111 F.3d 45 (6th Cir.1997). However, since Aley has explicitly objected to the characterization of his Motion as a habeas petition (a procedure sanctioned by the Supreme Court in Castro v. United States, 540 U.S. 375, 124 S.Ct. 786, 792, 157 L.Ed.2d 778 (2003)), we conclude that the proper course of action is to remand, for the limited purpose of permitting Aley either to withdraw his motion, or to allow the district court to transfer it to a panel of our court for application of the gatekeeping criteria of AEDPA.
Accordingly, the entry of the stay of execution is VACATED. The case is REMANDED for the limited purpose just stated.
We accordingly reject the approach of some cases, e.g., Hess v. Cockrell, 281 F.3d 212, 214-15 (5th Cir.2002), in which the court proceeded to consider whether a Rule 60(b) motion filed by a previously unsuccessful ha-beas petitioner satisfied the standards for relief under Rule 60(b), without first determining that the motion was not the equivalent to a second or successive habeas petition.
Sedley ALLEY, Petitioner-Appellee, v. Ricky BELL, Warden, Respondent-Appellant.
No. 04-5596.
United States Court of Appeals, Sixth Circuit.
April 11, 2005.
Paul R. Bottei, Asst. Federal Public Defender, Federal Public Defender’s Office, Nashville, TN, for Petitioner-Appellee.
Joseph F. Whalen, III, Asst. Atty. General, Office of the Attorney General, Nashville, TN, for Respondent-Appellant.
Before: BOGGS, Chief Judge; MARTIN, RYAN, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, ROGERS, SUTTON, and COOK, Circuit Judges.
This order was originally issued as an "unpublished order” filed on April 11, 2005. The court has now designated the order as one recommended for full-text publication.
Judge Gibbons recused herself from participation in this matter.
ORDER
On November 2, 2003, the district court issued an order staying Alley’s execution and holding in abeyance any proceedings on his purported Rule 60(b) motion until this court decided In re Abdur’Rahman. This ruling was appealed to our court, and oral argument was held on June 16, 2004. On December 13, 2004, this court issued its opinion in Abdur’Rahman, 392 F.3d 174 (6th Cir.2004) (en banc), but the district court was unable to consider AbdurRahman’s impact on the particular circumstances of Alley’s filing because Alley’s case was before this court on appeal.
On December 14, 2004, this court issued an opinion on that appeal, vacating the stay of execution and determining that Alley’s filing could not be considered a proper Rule 60(b) motion under Abdur'Rahman. Alley v. Bell, 392 F.3d 822 (6th Cir.2004). Alley sought rehearing en banc.
We now grant rehearing en banc, and remand the case to the district court to determine, in the first instance, whether Alley’s motion can be considered a proper Rule 60(b) motion under this court’s opinion in AbdurRahman.
R. GUY COLE, Jr., Circuit Judge,
concurring, in which MARTIN, DAUGHTREY, MOORE, and CLAY, Circuit Judges joined.
I concur in the Court’s decision vacating the panel opinion and remanding this case to the district court, but note that I would find that Alley’s petition is properly considered a Rule 60(b) motion under this Court’s precedent in In re Abu Ali Abdur'Rahman, 392 F.3d 174 (6th Cir.2004) (en banc). Of course, to fall within Rule 60(b)’s timing exception, Alley must allege actual fraud, rather than mere misrepresentation, as one section of Alley’s brief argues. See Fed.R.Civ.P. 60(b). However, Alley alleges that state attorneys were aware of the existence of significant exculpatory evidence, and that these attorneys nonetheless filed an affidavit in federal court stating that they had disclosed all exculpatory evidence, while willfully (or at least recklessly) concealing the evidence. These allegations are sufficient to allege fraud. See Demjanjuk v. Petrovsky, 10 F.3d 338, 348, 352-54 (6th Cir.1993).
Moreover, Alley’s allegation regarding the affidavit, whether true or not, has nothing to do with his state court proceedings and, indeed, would not be relevant to a trial-court-related Brady claim. State attorneys certainly could have willfully or recklessly withheld evidence from the federal habeas court without having willfully or recklessly done so at Alley’s state trial — in fact none of the attorneys about whose actions Alley complains appeared for the State at Alley’s trial. As a result, the resolution of Alley’s Rule 60(b) motion would be irrelevant to the constitutionality of his state trial, since success on this motion would merely serve to reopen his original habeas proceeding without determining facts that would require a finding that his state trial was unconstitutional. Thus, this claim is not effectively a second or successive petition challenging the validity of his state trial — to the contrary, Alley’s allegations of fraud relate only to the validity of the federal habeas proceeding. See Abdur’Rahman, 392 F.3d at 181. Accordingly, under our precedent in Abdur’Rahman, Alley’s motion is properly viewed as a Rule 60(b) motion unaffected by AEDPA, and the district court has jurisdiction to consider it.
Perhaps Alley’s allegations of fraud are true, and perhaps they are not — obviously it will be up to the district court to consider the Rule 60(b) motion and determine if fraud actually occurred. I thus concur in this Court’s decision to remand this matter to the district court.
Sedley ALLEY, Plaintiff-Appellee, v. George LITTLE, in his official capacity as Tennessee’s Commissioner of Correction, et al., Defendants-Appellants, John Does 1-100, et al., Defendants.
No. 06-5650.
United States Court of Appeals, Sixth Circuit.
May 16, 2006.
Paul R. Bottei, Asst. F.P. Defender, Federal Public Defender’s Office, Nashville, TN, for Plaintiff-Appellee.
Mark A. Hudson, Asst. Atty. General, Joseph F. Whalen, III, Asst. Atty. General, Office of the Attorney General, Nashville, TN, for Defendants-Appellants.
Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, ROGERS, SUTTON, COOK, McKEAGUE, and GRIFFIN, Circuit Judges.
Judge Gibbons recused herself in this case.
ORDER
The court having received a petition for rehearing en banc, and the petition having been circulated not only to the original panel members but also to all other active judges of this court, and less than a majority of the judges having favored the suggestion, the petition for rehearing has been referred to the original panel.
The panel has further reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. Accordingly, the petition is denied.
BOYCE F. MARTIN, JR., Circuit Judge, with whom DAUGHTREY, MOORE, COLE, and CLAY, Circuit Judges, join, dissenting from the denial of rehearing en banc.
The Supreme Court recently heard oral arguments in Hill v. McDonough, No. 05-8794, and is expected to issue a decision before the end of the current Term in June. The Court’s decision will impact Alley’s cáse either by allowing him or not allowing him to challenge the method of his execution pursuant to 42 U.S.C. § 1983. If Alley is executed on Wednesday and the Supreme Court decides Hill in his favor next month, this Court will effectively have locked the barn door after the horse has already escaped. If we uphold the stay entered by the district court, as I would, and the Supreme Court decides Hill against Alley’s interests, Tennessee may proceed with the execution in June.
To me, this balancing of interests weighs heavily in favor of upholding the stay entered by the district court. Moreover, the dysfunctional patchwork of stays and executions going on in this country further undermines the various states’ effectiveness and ability to properly carry out death sentences. We are currently operating under a system wherein condemned inmates are bringing nearly identical challenges to the lethal injection procedure. In some instances stays are granted, while in others they are not and the defendants are executed, with no principled distinction to justify such a result. Compare Rutherford v. Crosby, 546 U.S. -, 126 S.Ct. 1191, 163 L.Ed.2d 1144 (2006); Taylor v. Crawford, No. 06-1379 (8th Cir. Feb. 1, 2006) (en banc); Roane v. Gonzales, No. 05-2337 (D.D.C. Feb. 24, 2006), with Wilson v. Livingston, 2006 WL 1159270, 2006 U.S.App. LEXIS 10958 (5th Cir. May 2, 2006), stay denied, — U.S.-, 126 S.Ct. 1942, 164 L.Ed.2d 688 (2006); Donahue v. Bieghler, — U.S. -, 126 S.Ct. 1190, 163 L.Ed.2d 1144 (2006). This adds another arbitrary factor into the equation of death and thus far, there has been no logic behind the Supreme Court’s decision as to who lives and who dies. Until the Supreme Court sorts this out, I would uphold the stay issued in this case, and all cases that come before this Court, and therefore dissent from the Court’s contrary holding.
We review a district court’s decision to enter a stay for abuse of discretion. See Yolton v. El Paso Tenn. Pipeline, Co., 435 F.3d 571, 577 (6th Cir.2006). Our four factor analysis requires us to consider the petitioner’s likelihood of success on the merits, whether the petitioner will suffer irreparable harm if a stay is not entered, whether others will be harmed by the entry of a stay, and the public interest in a stay. These factors must be balanced to determine whether a stay ought to be entered.
First, it is clear that petitioner will suffer irreparable harm if a stay is not entered. He will be dead. This will of course moot any challenge he could mount should the Supreme Court decide Hill to allow a § 1983 suit.
Second, we consider whether others will be harmed by the stay. As the district court noted, the state may incur financial costs and relatives of the plaintiffs victim might experience emotional harm. These are serious interests that we ought to credit. Nevertheless, the fact that the Supreme Court will issue a decision by the end of next month militates against finding these interests overwhelming. Death, of course, is different. A delay of less than two months — -awaiting a highly relevant Supreme Court decision — is worth the wait when human life is at stake.
Third, we consider the public interest. Certainly the public interest in carrying out criminal sentences is strong. On the other hand, the public also has an interest in not carrying out cruel and unusual punishment or terminating human life prematurely. Finally, the public interest in uniform adjudication by the federal courts is not to be disregarded. The fact is that fifteen executions have been carried out despite Hill. Other courts have issued stays putting executions on hold pending the Hill’s disposition. This patchwork justice is intolerable when dealing with the imposition of the death penalty and undermines the public interest in uniform adjudication.
Finally, we consider Alley’s likelihood of success on the merits. The panel decision declares that there is only a “small” likelihood of success on the merits and finds that this “ultimately decides the matter.” I disagree. The district court found that Alley “by providing expert testimony that the current lethal injection protocol causes excruciating deaths, has made an adequate showing on the merits of his Eighth and Fourteenth Amendment claims.” Dist. Ct. Op. at 6. The panel decision does not make clear why this Court should disregard the district court’s explicit factual finding, particularly given the abuse of discretion standard it purports to apply. From the executions that have proceeded recently, including one last week, we have additional evidence of the problems with this procedure. Although Alley’s claim may not be a clear winner, I do not believe that it is a clear loser, and there is a likelihood that Alley will be able to show that lethal injection amounts to cruel and unusual punishment. In light of this, I would not find that this factor “ultimately decides the matter.” Rather, viewing all four factors, and because death is different, I would find that the district court did not abuse its discretion by entering a stay pending the Supreme Court’s resolution of Hill.
No doubt the march toward death is powerful. Currently, however, the march is anything but orderly. The current administration of the death penalty in light of the pending decision of Hill is more like a march, in dozens of different directions, which I believe is more costly, more inefficient, and more arbitrary, than entering the stay and waiting temporarily for some (hopefully) clear guidance. The arbitrariness of death penalty administration is not ameliorated by the fact that Hill involves what the panel terms “a procedural matter.” Rather, administration of the death penalty can only be made more arbitrary by the possibility that after Hill, some current death row inmates may be able to show in court that the practice of lethal injection violates the Eighth Amendment’s prohibition of cruel and unusual punishment, while other currently similarly situated inmates will have already been put to death through a method deemed to violate the Constitution. I would wait for the Supreme Court to resolve the issue and would affirm the district court’s decision entering the stay.
Sedley ALLEY, Plaintiff-Appellant, v. George LITTLE, in his official capacity as Tennessee’s Commissioner of Correction, et al., Defendants-Appellees.
No. 06-5816.
United States Court of Appeals, Sixth Circuit.
June 26, 2006.
Paul R. Bottei, Asst. F.P. Defender, Federal Public Defender’s Office, Nashville, TN, for Plaintiff-Appellant.
Mark A. Hudson, Asst. Atty. General, Joseph F. Whalen, III, Asst. Atty. General, Office of the Attorney General, Nashville, TN, for Defendants-Appellees.
Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, ROGERS, SUTTON, COOK, MCKEAGUE, and GRIFFIN, Circuit Judges.
Judge Gibbons recused herself from participation in this ruling.
AMENDED ORDER
The court having received a petition for initial hearing en banc, and the petition having been circulated to all active judges of this court, and no judge of this court having favored the suggestion,
It is ORDERED that the petition be and hereby is denied.
BOYCE F. MARTIN, JR., Circuit Judge,
with whom DAUGHTREY, MOORE, COLE, and CLAY, Circuit Judges, join, dissenting from the denial of initial hearing en banc.
I would grant Sedley Alley’s motion for initial hearing en banc, because the panel scheduled to hear his present appeal of the dismissal of his action already addressed the issue of unnecessary delay when it vacated the district court’s temporary stay of Alley’s execution. The district court subsequently read the panel opinion as requiring it to dismiss the case on the basis of unnecessary delay and reversing its earlier determination that Alley had brought this action as promptly as he reasonably could have. Compare Alley v. Little, No 3:06-0340, 2006 WL 1454740, at *3, 2006 U.S. Dist. LEXIS 32319, at *10 (M.D.Tenn. May 11, 2006) (stating that given Alley’s promptness if filing, “it would be strange jurisprudence to dismiss this action for ‘undue delay.’ ”) with Alley v. Little, No. 3:06-0340, 2006 WL 1697207 (M.D. Tenn. June 14, 2006) (finding that “[ajlthough this court remains concerned about the interaction between a robust application of the ‘unnecessary delay doctrine and traditional concepts of ripeness in the death penalty context, ... [t]he law of the Sixth Circuit is that ... this case was unnecessarily delayed.’ ”).
Given the Supreme Court’s recent decision in Hill v. McDonough, — U.S. -, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006) allowing challenges to a state’s method of execution under 42 U.S.C. § 1983, I believe this is an appropriate case for this Court to address en banc because it presents a “question of exceptional importance.” See Fed. R.App. P. 35(a). Initial en banc consideration is especially appropriate here as the panel has already spoken unequivocally on its view of Alley’s “unnecessary delay,” and has expressed concern about the deliberations of this Court or the district court delaying Tennessee’s scheduled execution of Alley.
Additionally, Alley is scheduled to be executed in five days, on June 28, 2006. The extremely short window of time between his current appeal and his pending execution presents all the more reason to allow the full court as much time as possible to consider his appeal, rather than tying up some of that time by presenting his case to a panel that has already spoken on the issue in question. We should thus hear the case en banc immediately due to the imminence of Alley’s scheduled execution.
Sedley ALLEY, Plaintiff-Appellant, v. George LITTLE, in his official capacity as Tennessee’s Commissioner of Corrections, et ah, Defendants-Appellees.
No. 06-5816.
United States Court of Appeals, Sixth Circuit.
June 27, 2006.
Paul R. Bottei, Asst. F.P. Defender, Federal Public Defender’s Office, Nashville, TN, for Plaintiff-Appellant.
Mark A. Hudson, Asst. Atty. General, Joseph F. Whalen, III, Asst. Atty. General, Office of the Attorney General, Nashville, TN, for Defendants-Appellees.
Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, ROGERS, SUTTON, COOK, McKEAGUE, and GRIFFIN, Circuit Judges.
Judge Gibbons recused herself from participation in this ruling.
ORDER
The court having received a petition for rehearing en bane of the decision issued June 24, 2006, and the petition having been circulated to all non-recused active judges of this court, less than a majority of whom favored the suggestion,
It is ORDERED that the petition be and hereby is denied. The mandate shall issue forthwith.
BOYCE F. MARTIN, JR., Circuit Judge,
with whom DAUGHTREY, MOORE, COLE, and CLAY, Circuit Judges, join, dissenting from the denial of rehearing en banc.
I.
Sedley Alley seeks to enjoin the state of Tennessee from executing him through its lethal injection procedure, which he alleges will cause him to experience “the terrorizing and excruciating experience of suffocation without the ability to move or to express the pain and suffering which he is experiencing,” and “extreme and excruciating pain” throughout the nerve fibers of his venous system, all without providing him sufficient anesthesia to prevent him from feeling this pain. Compl. ¶¶ 56, 68-69. According to Alley, Tennessee has prohibited using one of the chemicals involved in the lethal injection protocol to euthanize animals. Id. ¶ 81 (citing Tenn. Code Ann. 44-17-303(c)). In addition to these allegations, the district court found that Alley “provided an adequate showing on the merits of his Eighth and Fourteenth Amendment claims” through his provision of “expert testimony that the current lethal injection protocol causes excruciating deaths.” D. Ct. Op., Case No. 3:06-cv-00340, at 6 (M.D.Tenn. May 11, 2006). If Alley’s allegations prove true, he will have presented a meritorious claim that the state’s lethal injunction procedure violates the Eighth Amendment’s prohibition of cruel and unusual punishment.
Despite the grave implications of cruel and unusual punishment raised in Alley’s claim, a panel of this court reversed the district court’s stay of his execution. In subsequently ruling on the state’s still pending motion to dismiss, the district court read the panel’s rebuke of its earlier decision to be so complete that it felt compelled to grant the state’s motion to dismiss based on the panel opinion. Compare Alley v. Little, No 3:06-0340, 2006 WL 1454740, at *3, 2006 U.S. Dist. LEXIS 32319, at *10 (M.D.Tenn. May 11, 2006) (stating that given Alley’s promptness in filing, “it would be strange jurisprudence to dismiss this action for ‘undue delay.’ ”) with Alley v. Little, No. 3:06-0340, 2006 WL 1697207 (M.D. Tenn. June 14, 2006) (finding that “[ajlthough this court remains concerned about the interaction between a robust application of the ‘unnecessary delay doctrine and traditional concepts of ripeness in the death penalty context,... [t]he law of the Sixth Circuit is that ... this case was unnecessarily delayed.’ ”). Now in its latest opinion, that same panel has affirmed the district court’s dismissal of the case, despite the fact that since its last decision, the Supreme Court has unanimously determined that a death row inmate can challenge the method of his execution under 42 U.S.C. § 1983, just as Alley seeks to do. Hill v. McDonough, — U.S.-, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006). I would reverse the panel’s decision, not only because Alley presents claims that create serious concerns about Tennessee’s lethal injection protocol, but because I believe the panel’s determinations that Alley has little likelihood of success on the merits and that he was dilatory in filing his complaint are simply incorrect.
II.
Last month, on May 11, 2006, the district court found that a stay of Alley’s execution was appropriate to preserve the status quo until the issuance of the Supreme Court’s then pending decision in Hill, and also found support for the stay based on the traditional four factor analysis for granting a preliminary injunction. In reversing the stay, the panel presumed that Alley could bring a section 1983 claim, and ruled that even if he was able to challenge the lethal injection protocol, the district court abused its discretion by staying the execution. In addition to stating that the pendency of Hill did not require a stay because it would be unclear whether Alley could bring a successful challenge even if he could proceed under section 1983, the panel summarily rejected the district court’s analysis of the four factors relevant to the issuance of a preliminary injunction. The panel’s reasoning was that existing law “offers no basis for finding lethal injunction protocols unconstitutional.” I was joined by four colleagues in dissenting from this Court’s denial of rehearing en banc. Alley v. Little, No. 06-5650, 2004 Fed.App. 0164P, 2006 WL 1313365 (6th Cir. May 12, 2006). In its recent ruling in question here, the panel stands by this erroneous determination.
I believe that the panel’s conclusion that Alley has little likelihood of succeeding on the merits is wrong. Despite the panel’s suggestion, it is not necessary that Alley rely on prior cases finding the lethal injection protocol to be cruel and unusual punishment. If this was the primary relevant inquiry, as the panel opinions suggest, no challenge to a method of execution would ever go forward, no matter how indifferent a state became to the pain and suffering inflicted by the process, simply because nobody else has successfully challenged the procedure before. Rather, in order to ultimately prevail, Alley needs to prove that Tennessee’s current protocol amounts to cruel and unusual punishment based on “the evolving standards of decency that mark the progress of a maturing society.” Roper v. Simmons, 543 U.S. 551, 561, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005).
As the district court initially found, Alley has made more than a sufficient showing here to establish a likelihood of success on his Eighth Amendment claim. Indeed, the fact that Tennessee allows a chemical to be used in executing humans that it prohibits for use in euthanizing animals suggests that the state’s own evolving standards of decency find its procedure offensive. Moreover, Alley has introduced evidence that Tennessee’s most recently executed prisoner consciously suffered excruciating pain during his execution by lethal injection. D. Ct. Record, R. 11, Affidavit of David Lubarsky, filed April 14, 2006. The panel has ignored these facts altogether in both of its opinions.
The district court’s findings on this issue, and its discretion to preserve the status quo were entirely ignored by the initial panel decision. See Mascio v. Public Emples. Retirement Sys., 160 F.3d 310, 312 (6th Cir.1998) (“The granting of a preliminary injunction is subject to appellate review under an ‘abuse of discretion’ standard. The injunction will seldom be disturbed unless the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard.”). The panel decision did not find any erroneous findings of fact, improper application of governing law, or use of erroneous legal standards by the district court, but instead substituted its judgment for the district court’s, in contravention of this Court’s precedent. See id. The current panel decision similarly relies on its determination that Alley is not likely to succeed in his challenge, in addition to its finding of unnecessary delay, based on the simple observation that no federal court has found lethal injection to be cruel and unusual punishment. This fact is largely irrelevant, and ignores Alley’s troubling allegations and actual likelihood of success. The panel’s conclusion to the contrary should not support either its reversal of the stay or the dismissal of Alley’s case.
III.
Both panel opinions determined that Alley delayed in filing the present action and found this to be a basis for reversing the stay and dismissing the case. In its prior opinion, however, the district court explicitly found that Alley acted promptly and in good faith, given the procedural posture of his pending legal challenges and the timing of the state’s determination of his execution protocol. In light of the panel’s initial opinion, however, the district court noted in its subsequent opinion that
[although this court remains concerned about the interaction between a robust application of the ‘unnecessary delay’ doctrine and traditional concepts of ripeness in the death penalty context, it is not the function of this court to address such concerns, but rather to apply the law of the Sixth Circuit. The law of the Sixth Circuit is that unnecessary delay warrants dismissal, and that this case was unnecessarily delayed.
Alley v. Little, No. 3:06-0340, 2206 WL 1697207 (M.D. Tenn. June 14, 2006).
I do not believe that Alley delayed unnecessarily in bringing his challenge to the lethal injection protocol. Perhaps most significantly, in this circuit, until the Supreme Court’s ruling in Hill, Alley could not have even brought his present challenge under section 1983, as this Court’s precedent would have deemed it a subsequent habeas petition. See In re Sapp, 118 F.3d 460, 464 (6th Cir.1997) (holding that “a challenge to a method of execution, whatever denominated (Rule 60(b), § 1983, or otherwise) is to be treated as a habeas petition.” (internal citation omitted)). Thus it was only the decision in Hill that made Alley’s challenge possible, and by filing before that decision was even issued and seeking a stay to await its result, he showed an eagerness to litigate his claim as soon as possible, rather than delaying it. Given that Sapp prevented Alley from filing suit until two weeks ago, it is difficult to comprehend how Alley could be viewed as dilatory in filing the present action. Cf. Nelson v. Campbell, 541 U.S. 637, 650, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004) (stating that “there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.”) As a matter of this Court’s prior precedent Alley simply could not have brought his claim before Sapp was reversed by Hill. Because he could not have brought this suit any sooner, there is no basis to dismiss it for unnecessary delay.
Alley also argues that his claim was not ripe until the date was set for his execution, citing Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998). The recent panel opinion distinguishes Martinez-Villareal on the basis that the challenge in that case involved the petitioner’s mental competence to be executed, and such a challenge necessarily is unripe until execution is imminent. A challenge to the method of execution, on the other hand, becomes ripe at the earlier time when the method of execution is determined. In some cases, for example in states with a single method of execution, this could be a meaningful distinction. Based on Tennessee’s death penalty protocol, however, the condemned prisoner is asked to choose how he will be executed, and lethal injection is selected if he refuses to make a choice. Alley refused to express a preference, and lethal injection was selected by default. Only at the point when he was approached about the method of execution, on April 19, 2006, and refused to make a choice, did Alley know with certainty that he would be executed by lethal injection. Because the method of execution was only firmly determined shortly before the execution was scheduled to occur, Alley had a valid reason for filing the present action after that determination was conclusively made.
The initial panel reasoned that Alley could have presumed he would be executed by lethal injection, as it is the default method, and that his claim would have been ripe sooner than he argues. At a minimum, however, the choice offered by Tennessee creates some confusion as to when a method of execution is determined. Had Alley attempted to challenge his method of execution before the method had been chosen, or before he had even been presented with the choice under the state’s procedure, his challenge would clearly have faced issues of ripeness. If federal precedent does not clearly establish that this claim would have been unripe, it at least contributes confusion on the point. See, e.g., Beardslee v. Woodford, 395 F.3d 1064, 1069 (9th Cir.2005) (“To date, we have not resolved the question of when challenges to execution methods are ripe... We have suggested that a constitutional challenge to an execution method becomes ripe when the method is chosen. However, because the execution protocol is subject to change, [plaintiff] argues that his challenge to the protocol, as opposed to a generic challenge to the statutorily specified method, did not become ripe until his execution was imminent as described in Martinez-Villareal. We need not, and do not resolve this question.”).
Further, upon learning of his execution date, Alley immediately sought information about the protocol to be used, and upon learning of the execution protocol, promptly expressed his objections to the procedure with the state commissioner. Alley v. Little, No 3:06-0340, 2006 WL 1454740, at *3, 2006 U.S. Dist. LEXIS 32319, at *10 (M.D.Tenn. May 11, 2006). When the commissioner did not respond, Alley filed this lawsuit in short order. Id. The district court noted his promptness in its initial grant of the stay of execution. Id. (noting that “it would be strange jurisprudence to dismiss this action for ‘undue delay’ ”).
Even if a court might have found Alley’s claim to be ripe had he filed it before the state determined his method of execution, this is not dispositive of the question of undue delay. The basis for dismissing a legal challenge for undue delay is the equitable principle of discouraging a plaintiff from manipulative tactics. See Nelson v. Campbell, 541 U.S. 637, 649-50, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004). This doctrine does not require that Alley show that his claim would have absolutely been determined unripe as a matter of law had he filed it prior to the official designation of his method of execution. Rather the ripeness inquiry is relevant to explain whether he had a good faith reason to file the suit when he did and that the timing did not involve any “abusive delay, which has been compounded by last-minute attempts to manipulate the judicial process.” Id. Given the possibility that an earlier claim might have been determined to be unripe, combined with the fact that Alley did not know with certainty how he would be executed until April 19, 2006, his filing of the suit shortly thereafterward cannot said to be manipulative, abusive, dilatory, or in bad faith.
The recent panel opinion suggests that the Fifth Circuit’s decision in Reese v. Livingston supports its conclusion here that Alley’s claim was filed too late in the day. 2006 WL 1681090, 2006 U.S.App. LEXIS 15166 (5th Cir.2006). Although Reese does involve the rejection of a stay of execution in a section 1983 challenge to a method of execution after Hill, the opinion in Reese provides no description of the timing involved in the filing of the challenge. Id. Reese provides no guidance whatsoever for finding that Alley’s challenge was delayed unnecessarily, as there is no way to compare the issues surrounding the timing of the filing in each case. Although the Supreme Court did state in Hill that “federal courts can and should protect States from dilatory or speculative suits,” 2006 WL 1681090, at *1, 2006 U.S. LEXIS 4674, .at *22, the record here shows that Alley was anything but dilatory in bringing his claim, and this rule does not provide a basis for dismissal here.
IV.
Along with four colleagues, I expressed concern in my earlier dissent from denial of rehearing en banc in this case about the inconsistent granting of stays of execution to allow challenges to the lethal injection procedures, and the resulting arbitrariness added to the administration of the death penalty. Alley v. Little, No. 06-5650, 2004 Fed.App. 0164P, 2006 WL 1313365 (6th Cir. May 12, 2006). By making it clear in Hill that challenges to the method of execution can be brought under section 1983, the Supreme Court has taken an initial step towards consistency and clarity in this area that not only is required as a matter of fairness, but to protect the principles of the Eighth Amendment.
This Court has an opportunity to follow the Supreme Court’s lead and to ensure that executions within our jurisdiction do not involve cruel and unusual punishment by allowing Alley’s challenge to go forward. See also Gomez v. United States Dist. Court, 503 U.S. 653, 659, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992) (Stevens, J., dissenting) (“[I]f execution by cyanide gas is in fact unconstitutional, then the State lacks the power to impose such punishment. [The inmate’s] delay, even if unjustified, cannot endow the State with the authority to violate the Constitution.”). Alley raises troubling allegations about the suffering involved in death by lethal injection, and should be allowed his day in court, particularly given that he has presented his legal challenge as promptly as he reasonably could have. The panel’s attempt to short-circuit his claim through the misapplication of a principle of equity does a disservice to the Constitution and its prohibition of cruel and unusual punishment, in addition to being incorrect. I believe that Alley has not delayed unnecessarily in filing suit, and has presented a sufficient likelihood of success on the merits to warrant a stay of his execution. I would thus vote for rehearing en banc to reverse the decision of both panel opinions, and remand the case to the district court.
RONALD LEE GILMAN, Circuit Judge,
with whom R. GUY COLE, JR., Circuit Judge, joins, dissenting from the denial of rehearing en banc.
The panel affirms the district court’s dismissal of Alley’s challenge to the lethal injection protocol. In so doing, it revisits its reasons for vacating the preliminary injunction and the stay of execution. Two primary reasons are articulated in support the panel’s analysis: (1) Alley unnecessarily delayed his challenge, and (2) there is a small likelihood of success on the merits. Because I believe that the panel improperly weighed these two factors, I favor rehearing en banc.
First, Alley argues that he did not unduly delay in bringing his challenge to the lethal injection protocol. The propriety of his delay cannot even he assessed, he contends, until we determine when his claim first could have been filed. This requires an Article III ripeness analysis, which the panel failed to perform.
The panel relies on the fact that Alley was originally scheduled for execution in 2004 and that he failed to bring his challenge then, thus evincing undue delay. It is true that the Tennessee Supreme Court on January 14, 2004 set an execution date of June 3, 2004. This date was not altered until May 19, 2004, when the district court stayed the matter for a determination of whether Alley’s Rule 60(b) motion constituted a habeas petition. The panel says that Alley should have challenged the lethal injection protocol during this four-month period prior to the stay.
But in order to have a ripe claim regarding the lethal injection protocol, Alley argues, two events must have taken place: (1) the execution date must be set, and (2) the warden must have presented Alley with the choice of the method of execution, and Alley must have made the choice of lethal injection (as opposed to electrocution, the other method available in Tennessee). In 2004, Alley argues that only the first of these events came to pass. I find nothing in the record that contradicts Alley’s claim. Without having been presented with this choice and without having elected lethal injection, any suit brought in the four-month period prior to the stay challenging the lethal injection protocol would have been thrown out on ripeness grounds. This being the case, I believe the panel unjustly faulted Alley for failing to file his challenge sooner.
Turning to Alley’s argument as to the likelihood of success on the merits, I agree with the panel that current law does not compel the conclusion that Tennessee’s lethal injection protocol is unconstitutional. At the same time, however, there is an affidavit from an expert in this case demonstrating that the lethal cocktail that is to be administered to Alley is insufficient to completely anesthetize him, producing a “reasonably high chance of suffering a cruel and inhumane death.” This evidence makes success on the merits at least a possibility — albeit not a foregone conclusion — and not “as speculative as any other claim about possible future changes in governing law,” as the panel concluded.
In light of the panel’s (1) failure to address the Article III ripeness concerns present in Alley’s case, and (2) failure to properly weight the expert’s affidavit as to Alley’s likelihood of success on the merits, I would grant rehearing en banc.