            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                    October 26, 2010 Session

            SHAUN ALEXANDER HODGE v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Knox County
                        No. 80222    Mary Beth Leibowitz, Judge


                   No. E2009-02508-CCA-R3-PC - Filed August 26, 2011


        The petitioner, Shaun Alexander Hodge,1 was convicted of first degree murder in
2001 and sentenced to life in prison. Thereafter, the petitioner filed a petition seeking post-
conviction relief, which was denied by the post-conviction court. The petitioner appeals,
claiming constitutional violations arising from the ineffective assistance of his trial counsel
and the State’s failure to disclose certain exculpatory evidence. The petitioner also seeks
relief based on newly discovered evidence. After careful review of the record and the
arguments of both parties, we affirm the judgment of the post-conviction court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J ERRY L. S MITH
and N ORMA M CG EE O GLE, JJ., joined.

Stephen Ross Johnson and Anne E. Passino, Knoxville, Tennessee, for the appellant, Shaun
Alexander Hodge.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; Randall Eugene Nichols, District Attorney General; and Leslie Nassios, Assistant
District Attorney, for the appellee, State of Tennessee.

                                               OPINION

       The facts of this case were recounted by this court at length during the review of the
petitioner’s direct appeal, State v. Shawn Hodge, No. E2002-01794-CCA-R3-CD, 2003


        1
          We note that in portions of the record and in the case caption on direct appeal, the petitioner’s
name was spelled “Shawn.” However, we will use the spelling given on the petitioner’s petition for post-
conviction relief.
Tenn. Crim. App. LEXIS 1014, at **1-24 (Tenn. Crim. App. Dec. 8, 2003), perm. app.
denied (Tenn. May 10, 2004). To briefly summarize in pertinent part, in February 2001, the
petitioner was convicted after trial by jury of the first degree premeditated murder of Mr.
Benny Boling. He was sentenced to life in prison with the possibility of parole.

        At the petitioner’s trial, the forensic evidence established that the victim was slain at
a local housing project on April 26, 1998. The victim died after being shot five times by a
nine-millimeter semiautomatic handgun. While the victim was initially shot from the rear
as he occupied the cab of his pickup truck, he managed to drive himself a short distance away
before running off of the road and ultimately fled on foot approximately seventy-five feet up
a hill before collapsing near a day care center. There, the victim’s body was discovered, with
the victim still clutching a $100 bill in his hand. Police recovered a total of seventeen spent
shell cartridges from the scene. During the autopsy, the victim’s blood tested positive for
cocaine.

         The murder weapon was never recovered, and none of the forensic evidence
definitively connected the petitioner to the victim’s shooting. The prosecution’s case hinged
on the testimony of four eyewitnesses. Debra Turner, who lived in the community, testified
that on the day of the shooting, she was at home when she heard someone outside threatening
to kill someone if he did not buy drugs. She looked out her back door and saw the petitioner
talking to the victim, who was in his truck. After she heard the victim refuse to buy the
drugs, she heard a gunshot and saw the victim’s truck moving away. The petitioner followed
the truck, firing into it. When the truck struck a tree, the victim exited the truck and ran. The
petitioner followed him, still firing at the victim. When the victim collapsed, the petitioner
stood over him and shot him. Patricia Hamilton, who was visiting Debra Turner at the time
of the shooting, testified to essentially the same version of events.

       A third witness, Lorraine Young, who lived nearby, testified that she knew the
petitioner prior to the shooting. The day prior to the shooting, she saw the victim drive into
the housing projects and purchase drugs. On the day of the shooting, Ms. Young was lying
in bed when she heard a commotion and looked out her bedroom window. She saw the
petitioner and three men standing near the victim’s truck having an argument about drugs and
money. She heard the victim refuse to buy drugs. She left the window for a moment and
then returned to see the victim crash his truck and flee away on foot while the petitioner shot
him.

       The final eyewitness, Tim Bolden, testified that he had previously sold the victim
crack cocaine and did so on several occasions the day of the shooting. At the time of the
shooting, Mr. Bolden was gambling with some other men when he saw the victim drive up,
looking to purchase additional drugs. However, Mr. Bolden testified that he continued to

                                               -2-
gamble and that the petitioner approached the victim’s truck. Mr. Bolden testified that he
heard loud voices, saw the victim leaving in his truck, and saw the petitioner firing at the
victim. After the victim’s truck struck a curb, the victim left the truck and fled on foot. The
petitioner continued to shoot the victim and, afterward, came back down the hill while the
men who were gambling fled the scene.

        The defense’s theory of the case was that the prosecution’s four eyewitness
identifications were erroneous and that one of those eyewitnesses, Mr. Tim Bolden, may have
been the actual killer. The defense presented the testimony of six eyewitnesses in support
of this theory. Latroy Askew, a friend of the petitioner, testified that the two rode around all
night on Saturday night and that the petitioner went home before the shootings occurred on
Sunday. Ms. Glenda Ward, who lived in a complex near the crime scene, testified that she
looked out her window one day and saw one man chasing another man up a hill before
shooting him. She testified that the shooter was not the petitioner. Reginald Woodruff, a
childhood friend of the petitioner, testified that the petitioner came to his house the morning
of the shooting and stayed with him, his son, and another man while they were playing video
games. Pierre Jarrett, who was playing basketball nearby at the time of the shooting, testified
that he heard shots, saw a truck move up a hill before coming to a stop, and saw a man who
was not the petitioner standing nearby with a gun. Paul Chandler, a retired army officer who
was collecting cans in the area when the shooting occurred, testified that he saw the murder
and that the petitioner was not the shooter. Malik Hardin, the petitioner’s cousin, testified
that he was with the petitioner at the time of the shooting and that Mr. Tim Bolden had, in
fact, shot the victim while the petitioner was gambling with others nearby. In addition to
these eyewitnesses, the defense presented the testimony of two witnesses who testified that
Debra Turner had made statements to them to the effect that she intended to falsely implicate
the petitioner in the victim’s murder in order to retaliate against the petitioner for beating and
hospitalizing her son.

        Midway through the defense’s case, the petitioner’s trial counsel examined the
unusual possibility of personally taking the stand to testify concerning certain inconsistencies
between Mr. Bolden’s courtroom testimony during the State’s case and some prior statements
that Mr. Bolden had allegedly made to him at an unrecorded prison meeting. According to
the petitioner’s trial counsel, at a face-to-face meeting with him and with no one else present,
Mr. Bolden made a statement concerning how the victim’s truck had entered the housing
projects on the day in question that was inconsistent with the testimony that he had given at
trial on the same subject. In addition, Mr. Bolden allegedly claimed at that meeting that the
petitioner had not shot the victim and that he had not seen who had done so. The petitioner’s
trial counsel had availed himself of the opportunity to cross-examine Mr. Bolden concerning
these statements while the witness was still on the stand, but Mr. Bolden had claimed under
oath that he could not recall making any of them. After considering the matter, the trial court

                                               -3-
gave the petitioner’s counsel permission to testify regarding his meeting with Mr. Bolden.
However, after consulting with the petitioner, trial counsel decided not to take the stand,
explaining that Mr. Bolden had not been a credible witness and that opening himself up to
cross-examination would not be in the petitioner’s best interests.

       Following this testimony and the testimony of additional witnesses, the petitioner was
advised of and waived his right to testify in his own defense pursuant to the procedure
described in Momon v. State, 18 S.W.3d 152, 162-64 (Tenn. 1999). The jury deliberated, and
the petitioner was found guilty. On May 2, 2001, the petitioner was sentenced to life in
prison with the possibility of parole. His conviction was affirmed on appeal by this court in
2003, against a sufficiency of the evidence challenge and certain claims of error with respect
to witness intimidation, the jury instructions, and the admission of the testimony of Lorraine
Young, an alleged mental patient. See Hodge, 2003 Tenn. Crim. App. LEXIS 1014, at **25-
39.

       On August 11, 2004, the petitioner filed a pro se petition for post-conviction relief.
Thereafter, counsel was appointed to represent the petitioner. Post-conviction counsel
moved the court for, and received, a subpoena to the Lakeshore Mental Health Institute for
all medical records pertaining to prosecution eyewitness Lorraine Young. In response to the
subpoena, post-conviction counsel received three full volumes of materials pertaining to Ms.
Young’s mental treatment at that facility. An amended petition was filed, in which the
petitioner claimed, inter alia, that the petitioner’s trial counsel had been constitutionally
ineffective for failing to obtain these files, that the petitioner’s due process rights had been
violated by the State’s failure to provide this allegedly exculpatory evidence, and that these
records constituted newly discovered evidence of the petitioner’s innocence.

      Hearings were held on June 24, 2009, and August 6, 2009, after which the post-
conviction court denied the petition. This appeal promptly followed.

                                         ANALYSIS

       In order to prevail on a claim for post-conviction relief, the petitioner must prove by
clear and convincing evidence that his conviction is void or voidable by virtue of a
constitutional violation. Jason Calvert v. State, No. M2008-00426-SC-R11-PC, 2011 Tenn.
LEXIS 439, at **20-21 (Tenn. Apr. 28, 2011); Grindstaff v. State, 297 S.W.3d 208, 216
(Tenn. 2009); T.C.A. § 40-30-110(f). Upon appellate review, this court will not reweigh or
reevaluate the evidence given below nor will it reassess issues such as the credibility of
witnesses, the weight to be given their testimony, or the resolution of any conflicts in the
evidence. Momon, 18 S.W.3d at 156. Rather, the post-conviction court’s factual findings
are conclusive on appeal unless the evidence preponderates against those findings. Calvert,

                                              -4-
2011 Tenn. LEXIS 439, at **20-21. With these standards in mind, we review the petitioner’s
claims concerning the ineffective assistance of his trial counsel, the prosecution’s failure to
disclose exculpatory evidence, and newly discovered evidence, each in turn.

                                               I.

       The petitioner claims ineffective assistance of counsel on three grounds. First, the
petitioner claims that his trial counsel’s assistance was ineffective because he failed to
effectively investigate the mental health history of prosecution witness Lorraine Young.
Second, the petitioner claims his trial counsel was ineffective for interviewing prosecution
witness Tim Bolden without bringing an additional witness or making an audio recording of
the interview. Third, the petitioner claims that his trial counsel was ineffective for not
withdrawing when a conflict arose between himself and the petitioner due to complaints the
petitioner made against his trial counsel in the trial court and before the Board of
Professional Responsibility. After carefully reviewing the record, relevant precedent, and the
arguments of the parties, we reject each of these claims.

       Both the Sixth Amendment of the U.S. Constitution and article I, section 9 of the
Tennessee Constitution guarantee defendants in criminal trials the right to be represented by
counsel. See U.S. C ONST. Amend. VI (“In all criminal prosecutions, the accused shall enjoy
the right . . . to have the assistance of counsel for his defense.”); T ENN. C ONST. art. I, § 9
(“[I]n all criminal prosecutions, the accused hath the right to be heard by himself and his
counsel.”). “To succeed on a claim that [this] legal representation has been constitutionally
inadequate, a criminal defendant ‘must establish both that counsel’s performance was
deficient and that the deficiency prejudiced the defense.’” Calvert, 2011 Tenn. LEXIS 439,
at *21-*22 (quoting Vaughn v. State, 202 S.W.3d 106, 116 (Tenn. 2006)).

        To meet the “deficient performance” prong of this two-part test, the petitioner must
establish that “‘counsel’s representation fell below an objective standard of reasonableness’
and overcame the ‘strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.’” Calvert, 2011 Tenn. LEXIS 439, at *22 (quoting
Strickland v. Washington, 466 U.S. 668, 688-89 (1984)). “Judicial scrutiny of counsel’s
performance must be highly deferential.” Strickland, 466 U.S. at 694. The petitioner may
not challenge the decisions of trial counsel using the benefit of hindsight, may not second-
guess a reasonably-based trial strategy, and cannot criticize a sound, but unsuccessful,
tactical decision made during the course of the proceedings. See Strickland, 466 U.S. at 694-
95; Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).

       In order to establish prejudice, the petitioner must establish a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been

                                              -5-
different. A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999) (quoting Strickland, 466 U.S. at
694). “A defendant’s failure to prove either deficiency or prejudice provides a sufficient
basis to deny relief on the ineffective assistance claim. Indeed, a court need not address the
components in any particular order or even address both if the defendant makes an
insufficient showing of one component.” Calvert, 2011 Tenn. LEXIS 439, at *22 (internal
quotation omitted).

                                                A.

        The petitioner’s first claim is that his trial counsel was ineffective for failing to obtain
and use the mental health records of Ms. Lorraine Young. Prior to trial, the petitioner’s trial
counsel requested that the State turn over any mental health records relating to any of the
State’s witnesses, including Ms. Young. The prosecutor responded by advising trial counsel
that she was not aware of Ms. Young ever receiving treatment for mental health issues. The
petitioner’s counsel also attempted to contact Ms. Young by telephone and interview her
prior to trial. However, she refused to speak with him.

        The petitioner argues that these attempts to obtain Ms. Young’s mental health records
were constitutionally insufficient. The petitioner argues that trial counsel should have
conducted an inquiry into Ms. Young’s mental health history similar to the one done by post-
conviction counsel. However, we disagree. There appears to be no reason in the record for
trial counsel to have suspected that Ms. Young suffered from mental health problems.
Although the petitioner had known Ms. Young for a period of many years, it does not appear
from the record that the petitioner raised the issue of Ms. Young’s mental health issues with
his trial counsel. Without something in the record to indicate that his trial counsel was placed
on notice that Ms. Young suffered from any significant mental health problems, we do not
believe that trial counsel fell below an objective standard of reasonableness in failing to
investigate this issue further. Trial counsel’s performance here has not been shown to be
deficient.

                                                B.

       The petitioner next claims that his trial counsel was ineffective for interviewing Tim
Bolden without bringing a third party witness or making an audio recording of the interview.
Because he failed to bring a witness or recording device to the interview, the petitioner
claims that trial counsel was unable to effectively cross-examine Mr. Bolden at trial with
inconsistent statements that he made during his interview.

       However, the record does not establish that the petitioner’s former trial counsel was

                                                -6-
deficient in his performance with respect to this interview. According to the testimony of the
petitioner’s trial counsel at the post-conviction hearing, counsel intentionally chose to entice
Mr. Bolden to speak to him by offering to come alone and not to tape the interview.
Although interviewing under those circumstances would likely render it difficult to impeach
Mr. Bolden in the future with any inconsistent statements, speaking to the witness in this
unrecorded fashion could have potentially been very helpful to trial counsel in developing
the petitioner’s case and trial strategy. Moreover, according to his testimony, trial counsel
hoped to bring witnesses and/or tape Mr. Bolden at subsequent interviews after gaining Mr.
Bolden’s trust. However, Mr. Bolden contacted the petitioner’s trial counsel some days after
the initial interview and advised him that he was not going to talk further with him about the
crime. Consequently, although his strategy ultimately failed, trial counsel’s decision to
attend Mr. Bolden’s interview without a witness or recording device does not appear to us
to have been deficient at the time it was made.

                                               C.

       Finally, the petitioner claims ineffective assistance of counsel because his trial counsel
failed to withdraw after the petitioner wrote a letter to the Board of Professional
Responsibility (the “Board”) and several letters to the trial court complaining about his
counsel’s representation prior to trial. However, we have previously indicated that trial
counsel is not required to withdraw representation merely because a client has filed a
complaint against him with the Board.                  See Quentin Lewis v. State, No.
W1998-00793-CCA-R3-PC, 2001 Tenn. Crim. App. LEXIS 52, **11-12 (Tenn. Crim. App.
Jan. 23, 2001) (holding trial counsel’s performance was not rendered constitutionally
deficient by virtue of her failing to request to withdraw after appellant filed a complaint
against her with the Board); Cf. State v. Richard Higgs, No. W2000-02588-CCA-MR3-CD,
2002 Tenn. Crim. App. LEXIS 667 at **6-10 (Tenn. Crim. App. Aug. 5, 2002) (although
three complaints had allegedly been filed with the Board concerning trial counsel by the
defendant at the time of trial, the defendant had “not provided this Court with sufficient
information to determine that there existed a conflict of interest requiring defense counsel’s
withdrawal”). Any rule that would essentially permit a defendant to automatically discharge
his appointed counsel simply by raising written complaints would inevitably become the
subject of delaying tactics and abuse. Cf. State v. Willis, 301 S.W.3d 644, 652 (Tenn. Crim.
App. 2009) (wherein “[t]he defendant used the tactic of . . . filing complaints against [his
lawyers] with the Board of Professional Responsibility as a means of coercing the court into
discharging counsel and . . . the pattern was for the tactic to be employed as trial dates
approached”). With respect to the subject matter of the defendant’s complaint, we view the
defendant’s act of filing a complaint with the Board as merely raising an allegation of
wrongdoing against his attorney. To succeed on an ineffective assistance of counsel claim,
however, the defendant must show clear and convincing evidence of actual conduct that

                                               -7-
would require counsel to withdraw and the resulting prejudice. The petitioner has failed to
do so.

                                               II.

        The petitioner next complains that the State withheld exculpatory evidence when it
failed to produce the medical records pertaining to Ms. Lorraine Young held at Lakeshore
Mental Health Institute in response to trial counsel’s generalized requests for the medical
records of the State’s witnesses. It is well established that “[s]uppression by the prosecution
of evidence favorable to an accused upon request violates due process where the evidence
is material either to guilt or punishment, irrespective of the good faith of the prosecution.”
Brady v. Maryland, 373 U.S. 83 (1963). However, in this case, the petitioner’s claim fails
because the prosecution did not actually suppress Ms. Young’s medical records and the
records at issue would not have been material to the defense.

        The petitioner argues that the State suppressed the evidence because the evidence was
contained in a state facility and the State failed to locate and disclose those records. To rule
in the petitioner’s favor on these facts would be tantamount to ruling that the State must
search every state facility for potential records pertaining to every prosecution witness in
every case. We have little difficulty determining that Brady and its progeny do not impose
such a requirement on the State. Brady generally does not require the State to affirmatively
seek out exculpatory evidence. State v. Marshall, 845 S.W.2d 228, 233 (Tenn. Crim. App.
1992). While we have hinted in the past that some leeway may exist in this general rule
where the records sought are already “possessed by or under the control . . . of [a]
government agency,” see id., this caveat is meant to refer to a prosecutor’s affirmative “duty
to learn of any favorable evidence known to the others acting on the government’s behalf in
the case, including the police.” Kyles v. Whitley, 514 U.S. 419, 508 (1995) (emphasis
supplied). If the prosecution is ever, in fact, under an affirmative duty to seek out potentially
exculpatory files from a government agency that is entirely unrelated to law enforcement or
the prosecution of the defendant’s case, it is certainly not under circumstances such as these.

        The record reflects that the prosecution had nothing in its files to indicate that Ms.
Young suffered from mental health issues, and nothing indicates that the prosecution was
aware that Ms. Young had ever sought mental health treatment or that mental health records
might exist at any particular state facility. Absent being specifically requested to examine
or produce records from Lakeshore Mental Health Institute (see State v. Jeffrey R. Allen and
Jennings Michael Coen, No. 03C01-9708-CC-00367, 1999 Tenn. Crim. App. LEXIS 17 at
**10-11 (Tenn. Crim. App. Jan. 8, 1999)) or, at the very least, being placed on some sort of
notice that exculpatory records existed there, the prosecution had no affirmative duty to seek
out such records and is not responsible for the consequences of any failure to locate them.

                                               -8-
To rule otherwise would be to impose on the prosecution a duty to investigate its own
witnesses that is simply breathtaking in its scope and arduousness. In order to secure any
conviction, the prosecution would have to request any and all documents pertaining to every
prosecution witness from every state agency and review all of those records for potential
exculpatory material – or run the risk of having the conviction overturned if any such records
should be discovered at a later time. Such a broad duty to search would be entirely
inconsistent with our previous determination that the State bears no greater duty to search for
exculpatory evidence than a defendant; “[w]hen exculpatory evidence is equally available
to the prosecution and the accused, the accused ‘must bear the responsibility of [his] failure
to seek its discovery.’” Marshall, 845 S.W.2d at 233 (quoting United States v. McKenzie,
768 F.2d 602, 608 (5th Cir. 1985)).

       Moreover, the records at issue were not material within the meaning of Brady.
“Evidence is material when there is a reasonable probability that the result of the proceeding
would have been different had the exculpatory evidence been disclosed.” Sample v. State,
82 S.W.3d 267, 270-71 (Tenn. 2002). In making this determination, “a reviewing court must
determine whether the defendant has shown that ‘the favorable evidence could reasonably
be taken to put the whole case in such a different light as to undermine the confidence of the
verdict.’” Johnson v. State, 38 S.W.3d 52, 58 (Tenn. 2001) (quoting Irick v. State, 973
S.W.2d 643, 657 (Tenn. Crim. App. 1998)).

        After thorough review, we conclude that the newly discovered medical records do not
place the petitioner’s case in a substantially different light. Many of the medical records at
issue postdate the trial or concern medical problems that would not have affected Ms.
Young’s credibility as a witness. While some portion of the records chronicle Ms. Young’s
struggle with alcohol use, when she was on the stand, Ms. Young freely admitted to
partaking of alcohol the evening before she witnessed the crime. The petitioner’s trial
counsel extensively cross-examined Ms. Young concerning the extent of her intoxication
and impeached her using prior inconsistent statements that she made to the police. Medical
records reflecting at most the witness’ prior tendency towards alcohol use would not have
rendered this cross-examination appreciably more effective. While the records also contain
some reference to Ms. Young experiencing occasional auditory hallucinations, the likelihood
that a jury would believe that Ms. Young happened to hallucinate an argument and a crime
that were substantially identical in their details as those attested to by other witnesses is
remote in the extreme. Finally, we observe that even if the medical records had contained
material that could have been used to significantly strengthen the petitioner’s challenge to
Ms. Young’s credibility, the testimony of three other eyewitnesses to the crime would still
remain. The discovery of these new medical records simply does not undermine our
confidence in the jury’s verdict.



                                              -9-
                                             III.

        The petitioner claims that Ms. Young’s mental health records “constitute new
scientific evidence which, in protecting Mr. Hodge’s due process rights, warrants the grant
of post-conviction relief and a new trial.” However, we will not review this claim in a
petition for post-conviction relief.

       A claim of actual innocence based on new scientific evidence may be presented in a
post-conviction proceeding. Dellinger v. State, 279 S.W.3d 282, 291 (Tenn. 2009); cf.
T.C.A. § 40-30-102(b) (2011) (stating that a belated post-conviction claim may be filed
“based upon new scientific evidence establishing that the petitioner is actually innocent of
the offense or offenses for which he was convicted”). However, any other claims of actual
innocence based on newly discovered evidence should be raised in a petition for a writ of
error coram nobis. Harris v. State, 102 S.W.3d 587, 591 (Tenn. 2003); Sarrah Hewlett v.
State, No. M2009-00379-CCA-R3-PC, 2010 Tenn. Crim. App. LEXIS 594, at **13-14
(Tenn. Crim. App. July 20, 2010). In order to prevail on a claim of newly discovered
evidence, the petitioner must show, inter alia, that the evidence would likely have changed
the result of the trial. E.g., State v. Singleton, 853 S.W.2d 490, 496 (Tenn. 1993).

        Although we freely acknowledge that psychiatry is indeed a science, we do not believe
that newly discovered witness medical records, even those pertaining to psychiatric health,
constitute “scientific evidence” within the meaning of Dellinger. Records are not “scientific”
per se; we do not usually refer to record keepers or librarians as “scientists” or speak of the
science of bookkeeping or accounting. Records may and often do contain information
reflecting that some particular scientific research, test, analysis, or discovery has occurred,
but this fact, standing alone, does not render such records “scientific” in and of themselves.
Rather, any such records are, at most, evidence pertaining to any underlying science
contained therein.

       Consequently, while the records at issue here have only recently been discovered,
there has not been any actual discovery of new scientific evidence. The scientific, psychiatric
evidence reflected in those records – as it relates to the credibility of the prosecution’s
witness – is nearly a decade old. We have little difficulty concluding that such evidence is
not new, and any attack based on it should have been brought pursuant to a writ of error
coram norbis. In any event, for the reasons we discussed when rejecting the petitioner’s
Brady claim, the inclusion of this evidence would not have likely changed the result at trial.

                                             IV.

       Having found no error with respect to any of the individual claims brought by the

                                             -10-
petitioner, we need not address the petitioner’s argument that he is entitled to relief under the
doctrine of cumulative errors, which recognizes that relief may be appropriate when “[e]rrors
that might not be so prejudicial as to amount to a deprivation of due process alone . . .
cumulatively produce a trial setting that is fundamentally unfair.” Walker v. Engle, 703 F.2d
959, 963 (6th Cir. 1983).

                                       CONCLUSION

       For the foregoing reasons, the judgment of the post-conviction court is affirmed.




                                                     _________________________________
                                                      JOHN EVERETT WILLIAMS, JUDGE




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