Jon Hall v. Tony Mays

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0172p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
JON HALL,
│
Petitioner-Appellant, │
> Nos. 10-5658/15-5436
│
v. │
│
TONY MAYS, Warden, │
Respondent-Appellee. │
│
┘
Appeal from the United States District Court
for the Western District of Tennessee at Jackson.
No. 1:05-cv-01199—J. Daniel Breen, District Judge.
Argued: January 30, 2019
Decided and Filed: August 3, 2021
Before: BATCHELDER, CLAY, and GRIFFIN, Circuit Judges.
_________________
COUNSEL
ARGUED: Kelley J. Henry, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville,
Tennessee, for Appellant. John H. Bledsoe, OFFICE OF THE TENNESSEE ATTORNEY
GENERAL, Nashville, Tennessee, for Appellee. ON BRIEF: Paul R. Bottei, Kristen M.
Stanley, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for
Appellant. John H. Bledsoe, OFFICE OF THE TENNESSEE ATTORNEY GENERAL,
Nashville, Tennessee, for Appellee.
_________________
OPINION
_________________
ALICE M. BATCHELDER, Circuit Judge. Jon Hall, a Tennessee death row inmate, has
appealed the district court’s denial of his petition for a writ of habeas corpus, filed under
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28 U.S.C. § 2254. In this appeal, Hall sought and we granted a certificate of appealability
(“COA”) on claims that: (1) the state prosecutor withheld exculpatory evidence of a state
witness’s mental illness; (2) Hall’s trial counsel was ineffective for failing to challenge Hall’s
competency to stand trial; and (3) Hall’s trial counsel was ineffective for failing to present
certain family- and social-history evidence. Finding that Hall cannot prevail on any of these
claims, we AFFIRM.
I.
In July 1994, Hall murdered his estranged wife, Billie Jo, by attacking her in her home,
dragging her to the backyard swimming pool while at least one of her children looked on, and
drowning her there. In February 1997, a jury in a Tennessee state trial court convicted Hall of
premeditated first-degree murder and sentenced him to death, finding that the murder was
especially heinous, atrocious, or cruel, and involved torture or serious physical abuse beyond that
necessary to cause death. See T.C.A. § 39-13-204(i)(5). The Tennessee Court of Criminal
Appeals and the Tennessee Supreme Court affirmed the conviction and sentence. Tennessee v.
Hall, No. 02C01-9703-CC-00095, 1998 WL 208051 (Tenn. Crim. App., Apr. 29, 1998);
Tennessee v. Hall, 8 S.W.3d 593 (Tenn. 1999). The Tennessee Supreme Court recounted the
facts as follows:
When she met [Hall], Billie Jo [] had two daughters . . . from a former
relationship. After their marriage, she and [Hall] had two more daughters. . . .
The youngest [] suffered from cerebral palsy. At the time of her murder, [Billie
Jo] and [Hall] were estranged and living separately.
On the night of July 29, 1994, [Hall] went to [Billie Jo]’s house to discuss
a reconciliation. He brought a $25.00 money order made out to [Billie Jo] as a
payment toward child support. Prior to entering the house, [Hall] disconnected
the telephone line at the utility box on the outside wall of the house. When [Billie
Jo] answered the door, [Hall] pushed his way into the room where she and the
children were watching television. [Hall] told the girls to go to bed. When they
did not immediately obey his order, [Hall] tipped over the chair in which [Billie
Jo] was sitting. [Hall] and [Billie Jo] then went back into her bedroom. The
children, who had gone into their bedrooms, could hear things slamming around
and [Hall and Billie Jo] yelling at each another. When the children tried to enter
the room, they found the door blocked. The three oldest children [] persisted in
their efforts to get into the room and finally succeeded. They attempted to stop
[Hall] from hurting their mother. When [Billie Jo] told the children to go to a
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neighbor’s house, [Hall] told them that if they went for help, ‘he was going to kill
Mama.’ He also told [Billie Jo], a college student, that she would never live to
graduate. [Two of the daughters] tried to use the telephone to call for help, but
they discovered the telephones would not work. At that point, they went to a
neighbor’s house where they called 911. [T]he oldest child[] was the last to leave
[Billie Jo’s] house, [and was] carrying her [youngest] sister []. Before she left,
she saw her mother and [Hall] leave the bedroom and go outside. She watched
[Hall] drag her mother, ‘kicking and screaming,’ to the small pool in the back
yard.
The first officer to arrive on the scene . . . was directed by a neighbor to
check the pool where he found [Billie Jo]’s body floating face down in the water.
He immediately called Emergency Medical Services and [the] Tennessee Bureau
of Investigation. . . . [A TBI agent] arrived on the scene shortly after midnight.
[The TBI Agent] entered the house and found the master bedroom in
disarray. Bloodstains marked the bed, a counter top, and a wedding dress. The
telephones inside the house were off their hooks. A $25.00 money order made
out to [Billie Jo] and dated the day of the murder was found inside the house. No
weapons were found. A trail of drag marks and bloodstains led from the master
bedroom, out the front door, over the driveway, past the sandbox, and down to the
pool in the back yard. [Billie Jo]’s t-shirt was lying beside the pool. Clumps of
grass ripped from the ground floated in the blood-tinged water of the pool.
Outside the front door of the house the telephone junction box was opened and the
phone line was disconnected. The grass and weeds near this box were matted
down.
[T]he forensic pathologist who performed the autopsy on [Billie Jo]
testified that the primary cause of death was asphyxia resulting from a
combination of manual strangulation and drowning. He could not say with
certainty that either strangulation or drowning was the exclusive cause of death.
Evidence supporting strangling as a contributing cause of death included bruising
on the left and right sides of [Billie Jo]’s neck, hemorrhaging in the neck muscles
around the hyoid bone in the neck, and bleeding in the thyroid gland, which
indicated that extensive compression had been applied to the neck. Evidence
supporting drowning as a contributing cause of death was water found in both
[Billie Jo]’s stomach and in her bloodstream. The water in her stomach could
have collected when [Billie Jo] swallowed water as she was being drowned. The
water in her bloodstream would have entered when she took water into her lungs,
and the water passed through the lungs into her bloodstream.
Before dying, [Billie Jo] sustained at least eighty-three separate wounds,
including several blows to the head, a fractured nose, multiple lacerations, and
bruises and abrasions to the chest, abdomen, genitals, arms, legs and back.
Abrasions on [Billie Jo]’s back were consistent with having been dragged across
pavement. [The forensic pathologist] used a mannequin during his testimony to
demonstrate the size and location of the various wounds on [Billie Jo]’s body. . . .
Nos. 10-5658/15-5436 Hall v. Mays Page 4
He described some of the injuries to [Billie Jo]’s arms, legs and hands as
defensive wounds. He characterized the injuries to the neck, face and head as
intentional ‘target’ wounds. Except for the physical trauma associated with the
strangulation, however, none of the injuries would have proven fatal.
Chris Dutton, who was confined in a cell next to [Hall], testified that while
both men were incarcerated, [Hall] confided in him about [Billie Jo]’s murder.
When describing what happened on the night of the murder, [Hall] told Dutton
that he had tried to talk with [Billie Jo] about reconciling but ‘all she was
interested in was the money.’ When she refused to consider his plea for
reconciliation and demanded that he leave, ‘his temper got the best of him and he
began to strike her.’ According to Dutton, [Hall] had determined, even before he
arrived at [Billie Jo]’s house, ‘to make her . . . suffer as he did, feel the
helplessness that he was feeling because she took his world away from him.’
[Hall] told Dutton that he hit [Billie Jo] in the head until he panicked, threw her in
the swimming pool, then re-entered the house, took the car keys, and drove away
in [Billie Jo]’s minivan.
On cross-examination, Dutton admitted that [Hall] also told him that he
was depressed and had been drinking since he telephoned [Billie Jo] earlier that
day[,] . . . that he was very concerned about the welfare of his two daughters,
especially [the youngest with cerebral palsy, and] . . . that he disconnected the
telephone line, because, when he and his wife argued in the past, she had called
the police.
Two witnesses testified on [Hall]’s behalf during the guilt phase of trial.
Dr. Lynn Donna Zager, a clinical psychologist, interviewed [Hall] several times
after his arrest[,] diagnosed him as depressed and suffering from alcohol
dependence[, and] noted personality characteristics of paranoia and dependency.
In Dr. Zager’s opinion, at the time of the killing[,] [Hall] suffered from depression
and alcohol intoxication. These factors were compounded by his personality
characteristics and various psycho-social stressors, including a sick child, loss of
employment with the resulting financial problems, his impending divorce, and the
terminal illness of a brother. Dr. Zager testified that, in her opinion, [Hall] acted
in an impulsive manner in killing his wife, rather than pursuant to a preconceived
plan.
On cross-examination, Dr. Zager admitted that she based her opinion
concerning [Hall]’s intoxicated state on statements he made to her and statements
of other witnesses who saw him drinking on the day of the murder. She agreed
that no one she interviewed remarked on whether [Hall] exhibited any of the
typical physical signs of intoxication, such as slurred speech or lack of
coordination.
[The other defense witness was Hall’s boss.] [He] testified [that] . . . ,
prior to the killing[,] [Hall] had been severely depressed because of his family
problems.
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[Hall] . . . call[ed] his sister, [S]heryl Arbogast, to testify regarding his
state of mind at the time of the murder, but she had no first-hand knowledge of
[Hall]’s state of mind on the night of the murder. In fact, [she] admitted she had
not spoken to [Hall] for several months prior to the murder. Her testimony
regarding [Hall]’s state of mind was based on a conversation she had with her
[other] brother[], since deceased, on the day of the murder. The trial court would
not permit this hearsay testimony to be admitted before the jury. At the
conclusion of the evidence, the jury found [Hall] guilty as charged of first degree
premeditated murder.
During the sentencing phase[,] the State recalled [the forensic pathologist]
to testify in more detail concerning the extent of [Billie Jo]’s injuries. The State
introduced photographs of the injuries taken at the autopsy to illustrate [the
forensic pathologist]’s testimony. These photographs depicted the numerous
external wounds [Hall] inflicted while struggling with [Billie Jo].
[Hall] called Dr. Zager and Dr. Joe Mount, a psychological examiner who
counseled [Hall] at Riverbend Maximum Security Institution. Both described
[Hall] as depressed, remorseful, suicidal and extremely concerned about his
children. Dr. Mount testified that [Hall] had been diagnosed as suffering from an
adjustment disorder with mixed emotional features (anxiety and depression) and
substance abuse of dependence by history.
[Hall’s boss] also testified again. He described [Hall] as a good,
dependable employee and told how [Hall] had cared for his children when he
brought them to work with him. [Hall’s boss] stated that [Hall] loved his wife and
children and had hoped to reconcile with [Billie Jo].
[Hall] also presented his three sisters and his mother to recount the history
of [Hall] and his family. [Hall] was the youngest of seven children. His father,
an alcoholic, physically and verbally abused his wife until he died from a heart
attack in 1974 when [Hall] was ten. [Hall]’s father [had] denied that [Hall] was
his son and snubbed [Hall]. The witnesses’ descriptions of the fights between
[Hall]’s parents eerily paralleled [Hall]’s final confrontation with his own wife.
All of [Hall]’s relatives described him as a good father who loved his children.
Hall, 8 S.W.3d at 596-99 (editorial marks, certain quotation marks, and footnotes omitted).
Following his unsuccessful direct appeals, Hall actively but unsuccessfully pursued post-
conviction relief in the Tennessee state courts, both pro se and with counsel. In July 2005,
having exhausted his state-court proceedings, Hall filed a pro se § 2254 petition in federal court,
raising 24 claims. After obtaining counsel, he filed an amended, 74-page petition in April 2006,
asserting 20 claims, many with multiple sub-claims. A new counsel amended Hall’s petition
again in June 2007 to add a Brady claim about witness Chris Dutton. The district court declined
Nos. 10-5658/15-5436 Hall v. Mays Page 6
to hold a hearing and, in April 2010, issued a meticulous 134-page opinion that denied Hall any
relief and denied him a COA for any of his claims. We granted an initial COA on two of those
claims, which are now before us in this appeal: (1) the Brady claim concerning prison records
about Chris Dutton’s mental illness and (2) an ineffective-assistance-of-counsel (IAC) claim
concerning evidence of Hall’s family and social history.
In his Brady claim, Hall asserted that the prosecutor withheld prison records for state
witness Chris Dutton that would have impeached Dutton’s testimony by showing his long history
of mental illness. The district court recognized that Hall procedurally defaulted this claim by
failing to raise it in the Tennessee courts, but analyzed it on the merits anyway because Hall
argued that the Brady claim itself overcame the procedural default. The district court found that
Dutton’s prison records were never actually in the prosecutor’s possession because they were
records of the Tennessee Department of Corrections (TDOC), which was not an agency acting
under the prosecutor’s control, so the prosecutor did not know about them, actually or
constructively. Hall argued that the prosecutor had a duty to investigate, discover, obtain, and
disclose the TDOC’s records because Dutton was an inmate and a state witness, but the district
court disagreed, finding that Brady does not impose such an unlimited duty to pursue that type of
inquiry with uninvolved government agencies. The district court found that, because Hall had
“not allege[d] . . . any connection between the TDOC and the prosecution in the investigation of
this case, and none [wa]s apparent from the record,” it had “no basis for imputing knowledge of
the mental health information in Dutton’s TDOC records to the prosecution.” It then concluded
that the Brady claim necessarily failed and Hall could not overcome the procedural default.
In his IAC claim, Hall argued that because his trial counsel “failed to obtain and present
evidence from his family and other sources respecting his social history,” counsel did not
“submit[] a complete social history to Dr. Zager,” which Dr. Zager could have used “at the guilt
stage to demonstrate that Hall was not capable of forming the intent required for first degree
murder and at sentencing to mitigate a sentence of death.” Hall raised this claim in his state
post-conviction proceedings, but the state courts determined, based on the evidentiary hearing,
that Hall failed to prove that his counsel did not provide Dr. Zager with all relevant information:
Nos. 10-5658/15-5436 Hall v. Mays Page 7
[Hall] contends that trial counsel w[ere] ineffective for failing to provide
Dr. Zager with a complete mitigation history . . . [but] he fails to allege which
portions of his social history were not provided. . . . It was established [] that
[Hall] had been appointed investigators by the court [but] [Hall] did not present
the testimony of these investigators or his pretrial attorneys at the post-conviction
hearing.
The mitigation assessments and reports provided [to Hall’s attorneys] by Dr. Ann
Charvat and Gloria Shettles were introduced as part of the post-conviction record.
Dr. Charvat’s assessment contained summaries of her interviews with Sheryl
Arbogast and [Hall]’s mother[,] . . . a lengthy family history[,] . . . a list of
potential witnesses[,] and detailed guidance for the manner in which defense
counsel should prepare for a capital murder trial. . . . [Other evidence] show[ed]
that both [Hall] and Sheryl Arbogast had reviewed and made corrections to
Dr. Charvat’s initial assessment . . . [and] that correspondence had been
forwarded to [Hall]’s family for the purpose of separate interviews and additional
background information. . . . [Hall did not call Shettles to testify at the hearing,] . .
. provide the court with additional reports[, or] . . . establish[] that Ms. Shettles
did not interview potential witnesses. . . . [C]ounsel was granted funds for a
private investigator . . . [but] [t]here is no evidence [as to whether the
investigator] did or did not conduct any investigation.
Trial counsel testified [at the hearing] that Dr. Zager was provided all of the
relevant information that they possessed. . . . [A] letter [from] Dr. Zager to one of
[Hall]’s pretrial attorneys . . . stated her need for more information before she
would be able to deliver a definitive assessment of [Hall]. Specifically, she
inquired as to interviews with Randy Helms, Jackie and Darlene Brittain, [Hall]’s
mother, Debbie Davis, Sheryl Arbogast, and Jeff Hall. The letter closed by
stating, ‘I will provide a complete report once the above information is received
and reviewed in light of the evaluation.’ [Hall did not] call Dr. Zager as a witness
at the post-conviction hearing [but] [w]e can presume from the fact that she
testified as to [Hall]’s mental condition at trial that she was provided sufficient
information for a complete report.
[Hall] has failed to establish that Dr. Zager was not provided all relevant
information. Counsel cannot be found deficient when they complete an adequate
investigation.
Hall v. Tennessee, No. W2003-00669-CCA-R3-PD, 2005 WL 22951, at *32-33 (Tenn. Crim.
App., Jan. 5, 2005) (quotation marks and citations omitted, certain paragraph breaks omitted and
inserted). In analyzing this under § 2254, the district court quoted the above passage and
concluded that “[t]he Tennessee Court of Criminal Appeals’ decision was neither contrary to nor
an unreasonable application of clearly established federal law and was based on a reasonable
determination of the facts in light of the evidence presented.” The district court added that, while
Nos. 10-5658/15-5436 Hall v. Mays Page 8
a more complete social history might have provided more detail, the evidence presented would
have been repetitive, so even if counsel were deficient, Hall was not prejudiced.
Hall appealed (No. 10-5658) but moved this court to hold his appeal in abeyance and to
remand so that he could pursue claims under Martinez v. Ryan, 566 U.S. 1 (2012), and,
subsequently, Trevino v. Thaler, 569 U.S. 413 (2013). We granted the motion. On remand, the
district court painstakingly considered and denied each of Hall’s numerous Martinez- or Trevino-
based claims, both new and reasserted, and again denied Hall a COA for any claims. Hall v.
Carpenter, No. 05-1199, 2015 WL 1464017, at *33 (W.D. Tenn. Mar. 30, 2015). We granted a
COA on one of those claims, which is the third claim now before us in this appeal: an IAC claim
concerning Hall’s competency to stand trial in 1997.
In this IAC claim, Hall said his trial counsel should have moved for a competency
hearing (based on his “substantial structural and functional brain damage” manifesting in
behaviors “including belligerence and agitation with his counsel, the judge, and the victim’s
sister”) to establish that Hall was “not capable of assisting in his defense.” Id. at *18 (quotation
marks omitted). Hall procedurally defaulted this claim by failing to raise it in the Tennessee
courts but argued cause and prejudice to overcome the default, relying on Martinez/Trevino and
alleging IAC by his post-conviction counsel. In the end, the district court accepted the State’s
rebuttal that Hall “was evaluated by five psychological experts throughout his state court
proceedings, none of whom made findings that supported a theory of incompetence.” Id. at *19(citation omitted).
[Hall] was evaluated by Western Mental Health and also by Middle Tennessee
Health Institute and determined to be competent to stand trial. Lynn Zager, a
clinical psychologist, also worked with defense counsel and made no
determination that [Hall] was incompetent. Further she found no evidence to
support an insanity defense. Additionally, in the seventeen years since [Hall]’s
trial, he has been evaluated by neuropsychologist Pamela Auble, psychiatrist
Keith Caruso, and psychiatrist Kimberly Stafford, none of whom expressed
concerns about [his] competence. It was reasonable for [Hall]’s trial counsel to
rely on the mental health professional’s determination that their client was
competent to stand trial.
Id. (citations omitted). Hall argued to the district court that “Dr. J. Douglas Bremner, a professor
of psychiatry and behavioral sciences at Emory University School of Medicine, found that he
Nos. 10-5658/15-5436 Hall v. Mays Page 9
was not competent to stand trial,” id. at *18, but after a careful review, the court explained that
Bremner’s conclusions about Hall’s “competence c[a]me nine years after the trial of this matter
and with no indication that Bremner ha[d] ever met [Hall],” id. at *20. The district court
concluded:
Given the initial determination of competence, the opinions of mental health
professionals that evaluated [Hall] throughout his state court proceedings, and no
finding or even question of mental incompetence being raised during that time,
the [c]ourt does not find that trial counsel’s performance was unreasonable in
relying on the opinions of mental health professionals and failing to establish that
[Hall] was incompetent to stand trial. [Hall]’s claim of ineffective assistance of
counsel related to failure to establish [his] incompetence is not substantial. The
claim is procedurally defaulted and DENIED.
Id. The district court issued a final judgment.
Hall appealed again (No. 15-5436), and our COA specified three issues: (1) “whether the
prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by withholding evidence of [state
witness] Chris Dutton’s mental illness”; (2) “whether trial counsel w[ere] ineffective for failing
to challenge Hall’s competency to stand trial”; and (3) “whether trial counsel rendered
ineffective assistance of counsel by failing to present evidence of Hall’s family and social
history.”1
II.
The district court held that Hall procedurally defaulted two of the claims before us in this
appeal—his Brady claim and his IAC claim involving his competency to stand trial. In an appeal
of a district court’s finding of procedural default, “we review the district court’s legal
conclusions de novo and its findings of fact for clear error.” Scott v. Houk, 760 F.3d 497, 503
(6th Cir. 2014).
A § 2254 petitioner is generally barred from asserting claims in federal court that have
been “procedurally defaulted.” Woodford v. Ngo, 548 U.S. 81, 93 (2006). “In habeas, the
1We initially certified four claims for appeal, but Hall subsequently moved to dismiss one of his claims.
We granted that motion and formally acknowledge so here. In the meantime, Hall had moved to expand the COA to
add claims based on Buck v. Davis, 137 S. Ct. 759 (2017), and Turner v. United States, 137 S. Ct. 1885 (2017). We
denied that motion.
Nos. 10-5658/15-5436 Hall v. Mays Page 10
sanction for failing to exhaust properly (preclusion of review in federal court) is given the
separate name of procedural default” and “state-court remedies are described as having been
‘exhausted’ when they are no longer available, regardless of the reason for their unavailability.”
Id. at 92-93 (citations omitted). To overcome a procedural default (here, the failure to exhaust
properly), a petitioner must “demonstrate cause for the default and actual prejudice as a result of
the alleged violation of federal law[] or demonstrate that failure to consider the claims will result
in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).
The other claim before us in this appeal is Hall’s IAC claim concerning evidence of his
family and social history. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
provides the standard for our review of that claim. Under AEDPA, the federal court may
overturn a state-court conviction if the last reasoned opinion from the state court that adjudicated
the challenged issue on the merits “was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States; or . . .
resulted in a decision that was based on an unreasonable determination of the facts.” 28 U.S.C.
§ 2254(d).
To prevail under the “contrary to” clause, a petitioner must show that the state court
“arrive[d] at a conclusion opposite to that reached by [the Supreme] Court on a question of law”
or “confront[ed] facts that are materially indistinguishable from a relevant Supreme Court
precedent and arrive[d] at a result opposite” to that reached by the Court. Williams v. Taylor,
529 U.S. 362, 405 (2000). To prevail under the “unreasonable application” clause, a petitioner
must show that “the state court identifie[d] the correct governing legal principle from th[e]
Court’s decisions but unreasonably applie[d] that principle to the facts of the [petitioner’s] case.”
Id. at 413. “[A]n unreasonable application of federal law is different from an incorrect
application of federal law.” Renico v. Lett, 559 U.S. 766, 773 (2010) (quotation marks omitted).
It is not enough that “the federal habeas court might conclude in its independent judgment that
the state court applied clearly established federal law erroneously or incorrectly.” Gagne v.
Booker, 680 F.3d 493, 513 (6th Cir. 2012) (en banc) (internal quotation marks, editorial marks,
and citation omitted). The relevant state-court decision must have applied clearly established
federal law in an objectively unreasonable manner, Renico, 559 U.S. at 773, such that its
Nos. 10-5658/15-5436 Hall v. Mays Page 11
decision “was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement,” Harrington
v. Richter, 562 U.S. 86, 103 (2011).
A.
Hall claims the state prosecutor violated Brady v. Maryland, 373 U.S. 83 (1963), by
withholding impeachment evidence—i.e., records of a key prosecution witness’s history of
mental illness—and that he has overcome his procedural default because “a petitioner who
proves a Brady violation demonstrates cause and prejudice to excuse procedural default of the
Brady claim.” Brooks v. Tennessee, 626 F.3d 878, 891 (6th Cir. 2010) (citing Banks v. Dretke,
540 U.S. 668, 691 (2004)). On review, we may set aside a district court’s factual findings only if
they are clearly erroneous, “but [we] will review an alleged Brady violation de novo because
whether a Brady violation occurred is a mixed question of law and fact.” Id. (quotation marks
and citation omitted).
To prevail on a Brady claim, Hall must prove three elements: “[1] The evidence at issue
must be favorable to the accused, either because it is exculpatory, or because it is impeaching;
[2] that evidence must have been suppressed by the State, either willfully or inadvertently; and
[3] prejudice must have ensued.” Banks, 540 U.S. at 691 (quoting Strickler v. Greene, 527 U.S.
263, 281-82 (1999)). The evidence at issue here comprises prison records that document
Dutton’s history of mental illness, which the State concedes could impeach Dutton, so it satisfies
the first element. See Wilson v. Sheldon, 874 F.3d 470, 478 (6th Cir. 2017) (“Impeachment
evidence is also encompassed within the Brady rule because a jury’s reliance on the credibility of
a witness can be decisive in determining the guilt or innocence of the accused.”). The district
court found that Hall did not satisfy the second element however.
The prosecution never had actual possession or actual knowledge of these records
because only TDOC has these records. Nor does Hall contend that it did. Instead, Hall’s claim
rests on the prosecutor’s duty under Brady to investigate, discover, obtain, and disclose certain
exculpatory or impeachment evidence, namely the prosecutor’s “duty to learn of any favorable
Nos. 10-5658/15-5436 Hall v. Mays Page 12
evidence known to the others acting on the government’s behalf in the case, including the
police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995).
In his appellate briefing, Hall argues that Kyles required the prosecutor to learn of
Dutton’s mental health records from the TDOC (and disclose them to Hall) because the TDOC
was either acting on the prosecutor’s behalf or the TDOC and the prosecution were working
together to hold Hall in custody, convict him, and incarcerate him—given that the TDOC
conveyed Dutton’s offer of testimony to the prosecutor and coordinated his attendance as a
prosecution witness at Hall’s trial. But, in the district court, Hall “d[id] not allege . . . any
connection between the TDOC and the prosecution in the investigation of this case, and none
[wa]s apparent from the record,” so the district court found “no basis for imputing knowledge of
the mental health information in Dutton’s TDOC records to the prosecution.” As a finding of
fact, this was not clearly erroneous and we have no basis to disturb it. As a legal theory, Hall
forfeited this theory by failing to raise it to the district court. See Frazier v. Jenkins, 770 F.3d
485, 497 (6th Cir. 2014) (“Generally, we will not address arguments raised for the first time on
appeal.”). But, even assuming he had raised and preserved it, Hall does not cite any Supreme
Court or Sixth Circuit precedent holding that the relationship between the jailor and the
prosecutor is analogous to that between the police and the prosecutor, see Kyles, 514 U.S. at 437,
such that the jailor necessarily acts on the prosecutor’s behalf by incarcerating the defendant
during trial, conveying a message from an inmate, or transporting the defendant and inmate-
witness to trial.
Similarly, Hall does not cite any Supreme Court or Sixth Circuit precedent to support his
proposition that Brady imputes this type of knowledge from the jailor to the prosecutor because
both are acting under the same sovereign.2 Instead, Hall relies on four out-of-circuit cases, three
of which were decided after Hall’s 1997 trial; the fourth, while decided in 1989, was an
2The Sixth Circuit has not precisely answered this question in a published opinion. See United States v.
Ramer, 883 F.3d 659, 674 (6th Cir. 2018) (declining to address the question of whether “the government’s Brady
obligation created a duty for DFI’s criminal prosecutors to learn of the civil division’s file on Cornell”). However,
in Gulf v. Bagley, 601 F.3d 445, 476 (6th Cir. 2010), we found that federal authority supported the proposition that a
state prosecutor was not required “to inquire into the federal prosecution of a witness that is unrelated to the state
case and that does not involve any persons acting on behalf of the state prosecutor.” And “we have rejected Brady
claims premised on evidence possessed by uninvolved government agencies.” Sutton v. Carpenter, 617 F. App’x
434, 441 (6th Cir. 2010).
Nos. 10-5658/15-5436 Hall v. Mays Page 13
unpublished, two-page, per curiam ruling on a summary dismissal of a pre-AEDPA habeas
petition. Moreover, these opinions do not even say what Hall represents them to say.
The first, United States v. McGill, 815 F.3d 846 (D.C. Cir. 2016) (per curiam), would
mean—according to Hall’s brief—that “where the defendant was being prosecuted by the United
States, a ‘psychological evaluation and a prison disciplinary report for a key government
witness’ should have been disclosed to the defense under Brady.” But McGill says no such
thing; instead, the McGill court rejected a claim “that the government’s failure to disclose the
impeachment evidence violated Brady,” explaining that the records were inadmissible at trial and
“could not have resulted in any cognizable prejudice” because they were inapplicable, stale, or
cumulative, as to the individual charge. McGill, 815 F.3d at 922-23. More to the point, the
McGill opinion did not address anything to do with Hall’s premise of necessary imputation: it is
likely, albeit wholly undiscussed, that the McGill prosecutor had actual possession of the records
at issue and withheld them for the reasons stated in the opinion.
Hall’s next case is Gonzalez v. Wong, 667 F.3d 965, 981 (9th Cir. 2011), in which the
witness’s “psychological reports were in the possession of the prosecutor’s office prior to the
trial” and the prosecution conceded that it had suppressed them. This is factually
distinguishable.
The third case, Carriger v. Stewart, 132 F.3d 463, 479-80 (9th Cir. 1997) (en banc),
provides some support for Hall’s position about the state’s “obligation, before putting [its
witness] on the stand, to obtain and review [that witness]’s corrections file, and to treat its
contents in accordance with the requirements of Brady.” But the Carriger court found a Brady
violation based in part on the fact that “Dunbar was the prosecution’s star witness, and was
known by police and prosecutors to be a career burglar and six-time felon, with a criminal record
going back to adolescence.” Id. Given the prosecution’s reliance his testimony at trial, it had an
“obligation to turn over all information bearing on that witness’s credibility,” including his
corrections file. Id. In contrast, Dutton’s testimony was not crucial to the prosecution’s case in
Hall’s trial.
Nos. 10-5658/15-5436 Hall v. Mays Page 14
The final case, Sledge v. Moore, 878 F.2d 1431 (4th Cir. 1989) (unpublished table
opinion), would mean—according to Hall’s brief—“that in a state prosecution, ‘prison records of
the prosecution’s witnesses’ were encompassed by the prosecution’s Brady obligation, because
such ‘impeachment evidence is exculpatory in nature and should be provided to the defense
pursuant to Brady.” But this was the aforementioned two-page, per curiam ruling on the
summary dismissal of a pre-AEDPA habeas petition on the finding that it was “frivolous.”
Sledge does not address anything to do with Hall’s premise of necessary imputation: it is likely,
albeit undiscussed, that the Sledge prosecutor had actual possession of the records.
The aforementioned cases do not support Hall’s contention that the prosecutor had a duty
to investigate, discover, and obtain Dutton’s mental health records from the TDOC. And these
cases certainly provide no clearly-established law that would guide a Tennessee prosecutor at the
time of Hall’s criminal trial in February 1997. Hall concedes that the Sixth Circuit “has held in
various cases that under Kyles, a prosecutor does not have a duty to secure evidence from
another sovereign (or state agency) that had no involvement whatsoever in a particular case,” but
argues that in this case the TDOC was involved. Regardless, Hall’s view would leave our
precedent, at best, undecided.
We are not inclined to break new ground by holding that the prosecutor has an
affirmative duty to pursue and obtain psychological records for its witnesses, even inmate
witnesses, but even if we were, Hall cannot show prejudice, the third Brady element. To prove
prejudice, Hall must show that the suppressed evidence is “material,” meaning that there is “a
reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985).
Dutton testified that Hall had confided in him about the murder, which provided evidence
of Hall’s guilt and his mental state, including his premeditation. According to Dutton, Hall told
him that he had disconnected the phone line in anticipation that Billie Jo would call the police if
they argued and that, when she refused to consider his pleas for reconciliation and demanded that
he leave, his temper got the best of him and he began to strike her; eventually he panicked, threw
her in the pool, and fled. Dutton further testified that, by Hall’s own admission, Hall had
determined before he arrived at Billie Jo’s house “to make her . . . suffer as he did, feel the
Nos. 10-5658/15-5436 Hall v. Mays Page 15
helplessness that he was feeling because she took his world away from him.” On cross-
examination, Dutton testified that Hall had also told him that he was depressed and had been
drinking that day, and was very concerned about his daughters’ welfare, especially the youngest
with cerebral palsy. Hall’s counsel effectively impeached Dutton, revealing that Dutton had
several felony convictions for burglary and theft, had previously given information to law
enforcement in exchange for favors, and had been promised that the prosecutor would speak on
his behalf at his parole hearing if he testified truthfully at Hall’s trial.
A petitioner does not prove materiality, for purposes of demonstrating prejudice, when
the potentially exculpatory evidence is “merely cumulative” to information presented at trial to
impeach his credibility. See Brooks v. Tennessee, 626 F.3d 878, 893-94 (6th Cir. 2010); Carter
v. Mitchell, 443 F.3d 517, 533 n.7 (6th Cir. 2006). While records of Dutton’s mental illness
would have impeached his general credibility, the jury was already aware that he was a criminal
willing to trade testimony for favors—and was doing so in this case—and the mental-health
records did not undermine his specific testimony.
Three of Billie Jo’s daughters testified and their testimony corroborated Dutton’s
testimony about Hall’s guilt and premeditation. More importantly, the evidence against Hall was
overwhelming even without Dutton’s testimony—Hall disconnected the phone lines, told the
daughters that he was “going to kill mama,” and inflicted 83 separate wounds, including
defensive wounds, target wounds, several blows to the head, a fractured nose, multiple
lacerations, and bruises and abrasions to the chest, abdomen, genitals, arms, legs, and back. See
Jalowiec v. Bradshaw, 657 F.3d 293, 313 (6th Cir. 2011) (“Evidence withheld by the prosecution
must be evaluated in the context of the entire record.” (citation and quotation marks omitted)).
Because Hall cannot prove all three elements of Brady, he cannot win a substantive
Brady claim and, therefore, cannot establish cause and prejudice to overcome his procedural
default.
B.
Hall’s trial counsel did not challenge his competency to stand trial, nor did Hall’s
subsequent counsel raise this in his state post-conviction proceedings. Hall claims that, as a
Nos. 10-5658/15-5436 Hall v. Mays Page 16
result, both rendered ineffective assistance of counsel (IAC). He claims that IAC by his trial
counsel entitles him to habeas relief and IAC by his post-conviction counsel overcomes
procedural default. See Martinez, 566 U.S. at 14 (“[A] prisoner may establish cause for a default
of an [IAC] claim . . . where appointed counsel in the initial-review collateral proceeding . . . was
ineffective under the standards of Strickland.”). “To overcome the default, a prisoner must also
demonstrate that the underlying [IAC] claim is a substantial one, which is to say that the prisoner
must demonstrate that the claim has some merit.” Id.; see also Strickland v. Washington,
466 U.S. 668, 687 (1984) (stating that, to prove an IAC claim, the petitioner “must show that [his
counsel’s] deficient performance prejudiced [his] defense”). Here, the question is whether
Strickland required Hall’s post-conviction counsel—under an objective standard of
reasonableness—to raise trial counsel’s failure to challenge competency as an IAC error for
state-court consideration on post-conviction review.
The district court found that, prior to trial, both Western Mental Health and the Middle
Tennessee Mental Health Institute (MTMHI) evaluated Hall and declared him competent to
stand trial. Specifically, MTMHI assessed Hall’s mental condition, his dependency on alcohol
and drugs, and his intellectual functioning. In March 1995, MTMHI reported:
After completion of the competency evaluation, the staff has determined that
Mr. Hall’s condition is such that he is capable of adequately defending himself in
a court of law. In making this determination, it was concluded that he does
understand the charges pending against him and the consequences which might
follow, and he is able to advise counsel and participate in his own defense.
MTMHI further found that Hall did “not meet the criteria for an insanity defense.” Similarly, the
defense team’s clinical psychologist, Dr. Zager, who evaluated Hall and testified in his defense
both in the guilt phase and the sentencing phase of trial, never suggested that he was incompetent
to stand trial and found nothing to support an insanity defense. During state post-conviction
proceedings, three more experts (neuropsychologist Pamela Auble, psychiatrist Keith Caruso,
and psychiatrist Kimberly Stafford) evaluated and opined about Hall, but none suggested that he
had been incompetent to stand trial. The district court found that Hall’s trial and post-conviction
counsel relied on these expert opinions. Hall, 2015 WL 1464017, at *20. Because these
findings are not clearly erroneous, we must accept them. See Brooks, 626 F.3d at 891.
Nos. 10-5658/15-5436 Hall v. Mays Page 17
Hall argues that, despite these formal evaluations and expert opinions, his behavior was
so bizarre and outlandish that a reasonable attorney would have necessarily questioned his
competence. He relies on anecdotal statements from four of his attorneys. One described him as
being “very emotional,” “waving his arms and yelling loudly,” that “[n]either [his] thoughts nor
his behaviors appeared to be rational,” and being “non-cooperative with the judge.” Another
described him as engaging in “tirade[s] on issues that made little sense, followed by explosion[s]
of anger,” and unable to engage in “productive conversation” with counsel. A third described
him as “childlike,” “petulant,” “naïve about the legal system, and confused about what was
happening to him and why.” And a fourth described him as “highly agitated,” angry, and
“difficult to calm down.”
But Hall’s pretrial and trial counsel were entitled to rely upon the opinions of experts to
determine Hall’s competency to stand trial. See Morris v. Carpenter, 802 F.3d 825, 841-42 (6th
Cir. 2015); see also Taylor v. Horn, 504 F.3d 416, 438-39 (3d Cir. 2007) (rejecting an IAC claim
for not seeking competency evaluation where counsel reasonably relied on expert evaluations
that found the defendant competent); Holladay v. Haley, 209 F.3d 1243, 1250-51 (11th Cir.
2000) (approving of counsel’s reliance on one evaluation and decision not to pursue another);
Galowski v. Berge, 78 F.3d 1176, 1182 (7th Cir. 1996) (rejecting an IAC claim for counsel’s
failing to seek a competency hearing when a defense expert determined the defendant was
competent); Moran v. Godinez, 57 F.3d 690, 699-700 (9th Cir. 1994), superseded on other
grounds by AEDPA (“These psychiatrists provided detailed, reasoned reports which contained
their individual opinions that Moran was competent to stand trial. Moran’s attorneys were
entitled to rely on these reports.”); Butler v. Davis, 745 F. App’x 528, 532 (5th Cir. 2018), cert.
denied, 139 S. Ct. 1545 (2019) (“[A]ttorneys may rely on the opinion of experts in assessing a
defendant’s mental health.”).
When counsel rely on such experts—as they are entitled to do—their performance cannot
be said to fall below the objective standard of reasonableness that Strickland requires. So too
here. By relying on the opinions of the mental health experts, Hall’s attorneys acted reasonably,
and their decision to accept Hall’s mental competency, without a formal hearing, was not
deficient. For these reasons, Hall has not established a “substantial” IAC claim against his trial
Nos. 10-5658/15-5436 Hall v. Mays Page 18
counsel on this basis, and his post-conviction counsel did not render ineffective assistance by
failing to raise it. Hall therefore cannot overcome his procedural default under Martinez.
C.
Hall’s last IAC claim is that his trial counsel conducted an inadequate investigation and
presented insufficient evidence regarding his family and social history. Specifically, he says trial
counsel should have had his family members testify about his (1) mental disorder that caused his
unruly behavior, (2) family’s history of alcoholism, and (3) automobile and motorcycle accidents
that might have involved “potential” head injuries;3 and claims that, had counsel done so, it is
probable that at least one juror would have voted for life instead of death. It bears mention that
this is not the way Hall argued this issue in the state and district courts.4 See Frazier, 770 F.3d at
497 (“Generally, we will not address arguments raised for the first time on appeal.”).
But this claim would fail anyway under AEDPA review, particularly given that our
review of an IAC claim under both Strickland and AEDPA is “doubly deferential.” Morris,
802 F.3d at 841 (quoting Burt v. Titlow, 571 U.S. 12, 15 (2013)). That is, Hall must show, based
on the evidence that was before the state court, see Cullen v. Pinholster, 563 U.S. 170, 181
(2011), that counsel’s performance was deficient and that deficiency prejudiced his defense,
Strickland, 466 U.S. at 687, and that the state court’s decision that it was not deficient or did not
prejudice him was “contrary to” or “an unreasonable application of” clearly established Supreme
Court precedent, 28 U.S.C. § 2254(d)(1). Because AEDPA review “is limited to the record that
was before the state court that adjudicated the claim on the merits,” Cullen, 563 U.S. at 181, only
3 Hall also argues that that trial counsel should have produced family members to testify that Billie Jo had
been physically, mentally, and emotionally abusive to him. In his state post-conviction proceedings, however, Hall
asserted this as a separate claim titled “Counsel failed to establish the victim as the aggressor,” Hall, 2005 WL
22951, at *28-29, and correspondingly raised it to the district court as a separate claim with the same title. Because
we did not grant Hall a COA on that claim, we will not entertain it. See Mitchell v. MacLaren, 933 F.3d 526, 539
n.4 (6th Cir. 2019).
4In those courts, Hall argued that his trial counsel had failed to obtain and provide this family and social
history evidence for Dr. Zager “to demonstrate that Hall was not capable of forming the intent required for first
degree murder and . . . to mitigate a sentence of death.” The district court found, as the Tennessee Court of Criminal
Appeals had found during Hall’s post-conviction proceedings, that Hall failed to prove that his counsel did not
provide Dr. Zager with all relevant information, and added that, while a more complete social history might have
provided more detail, the evidence presented would have been repetitive.
Nos. 10-5658/15-5436 Hall v. Mays Page 19
the evidence presented there is relevant to our review here. See Moore v. Mitchell, 708 F.3d 760,
786 (6th Cir. 2013).
On direct appeal, the Tennessee Supreme Court reported that, during the sentencing
phase:
[Hall] also presented his three sisters and his mother to recount the history of
[Hall] and his family. [Hall] was the youngest of seven children. His father, an
alcoholic, physically and verbally abused his wife until he died from a heart attack
in 1974 when [Hall] was ten. [Hall]’s father [had] denied that [Hall] was his son
and snubbed [Hall]. The witnesses’ descriptions of the fights between [Hall]’s
parents eerily paralleled [Hall]’s final confrontation with his own wife. All of
[Hall]’s relatives described him as a good father who loved his children.
Hall, 8 S.W.3d at 599. During post-conviction, the Tennessee Court of Criminal Appeals
reported:
During the guilt phase . . . , trial counsel presented the testimony of Dr. Lynn
Zager, a clinical psychologist[, who] diagnosed [Hall] as depressed and suffering
from alcohol dependence. She further observed personality characteristics of
paranoia and dependency. In her professional opinion, she believed that [Hall]
suffered from depression and alcohol intoxication at the time of the killing. She
found these factors were compounded by his personality characteristics and
various psycho-social stressors, including a sick child, loss of employment with
the resulting financial problems, his impending divorce, and the terminal illness
of a brother. She concluded that [Hall] acted in an impulsive manner in killing his
wife, rather than pursuant to a preconceived plan.
Dr. Zager testified again during the penalty phase along with Dr. Joe Mount, a
psychological examiner who counseled [Hall] at Riverbend Maximum Security
Institution. Both doctors described him as depressed, remorseful, suicidal and
extremely concerned about his children. Dr. Mount testified that [Hall] had been
diagnosed as suffering from an adjustment disorder with mixed emotional features
and substance abuse of dependence by history.
Hall, 2005 WL 22951, at *31 (quotation marks and citations omitted). The district court,
therefore, concluded:
Hall’s mother and three sisters have testified about the alcoholism, physical and
psychological abuse that he experienced as a child[,] and the fact that his father
mistreated him because he did not believe [Hall] was his son. The evidence that
[Hall] contends could have been obtained from a more complete social history
may provide more detail, but it would have been repetitive of what was already
Nos. 10-5658/15-5436 Hall v. Mays Page 20
presented. To the extent that counsel may have been deficient in obtaining a
social history, [Hall] was not prejudiced.
Hall has not convinced us that it would have necessarily helped, and not hurt, his defense
for his trial counsel to have had his family members provide lay testimony about Hall’s mental
disorders, even more testimony about the family’s alcoholism, and gratuitous testimony about
past accidents that only “potentially” involved head injuries. Trial counsel’s decisions to include
or exclude such testimony are inherently strategic and “strategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually unchallengeable; [while]
strategic choices made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on investigation.”
Strickland, 466 U.S. at 690–91. It is far from clear that trial counsel’s decision here was
objectively unreasonable or amounted to deficient performance. Regardless, this additional
testimony would only have been cumulative or repetitive and, therefore, would not satisfy the
prejudice requirement under Strickland. Finally, even if Hall’s assessment were correct, the state
court’s judgment would not be “so lacking in justification” as to be “beyond any possibility for
fairminded disagreement.” Harrington, 562 U.S. at 103. This claim fails.
In this appeal, Hall also accuses post-conviction counsel of IAC for failing to introduce
more and different family- and social-history evidence at the post-conviction evidentiary hearing.
Hall attempts to introduce this now, despite its apparent procedural default, based on his
interpretation of the Martinez exception. Putting aside that Hall did not raise this in the district
court, we have already rejected this legal theory. See Moore, 708 F.3d at 785.5
III.
For the foregoing reasons, we AFFIRM the judgment of the district court.
5Hall contends that Moore was incorrectly decided, though he concedes that this panel cannot overrule it.
See United States v. Ferguson, 868 F.3d 514, 515 (6th Cir. 2017), cert. denied, 139 S. Ct. 2712 (2019) (“One panel
of this court may not overrule the decision of another panel; only the en banc court or the United States Supreme
Court may overrule the prior panel.”). He raises this contention here to preserve it for possible future review.