                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0273n.06

                                           No. 15-5384


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                    FILED
                                                                                  May 14, 2020
 ANTHONY DARRELL DUGARD HINES,                            )                   DEBORAH S. HUNT, Clerk
                                                          )
        Petitioner-Appellant,                             )
                                                          )
 v.                                                       )      ON APPEAL FROM THE
                                                          )      UNITED STATES DISTRICT
 TONY MAYS,                                               )      COURT FOR THE MIDDLE
                                                          )      DISTRICT OF TENNESSEE
        Respondent-Appellee.                              )
                                                          )
                                                          )

BEFORE: COLE, Chief Judge; KETHLEDGE and WHITE, Circuit Judges.

       PER CURIAM. Petitioner-Appellant Anthony Darrell Dugard Hines, a Tennessee death-

row inmate, appeals from the district court’s order denying his petition for a writ of habeas corpus

filed under 28 U.S.C. § 2254. Because trial counsel were constitutionally ineffective for failing to

investigate a crucial witness, and the state court’s determination otherwise was an unreasonable

application of the clearly established law of Strickland v. Washington, 466 U.S. 668 (1984), we

REVERSE.

                                STATE COURT PROCEEDINGS

       In 1986, a jury convicted Hines of first-degree murder and found three aggravating

circumstances: (1) Hines was previously convicted of one or more felonies, other than the present

charge, which involved the use or threat of violence to the person; (2) the murder was especially

heinous, atrocious, or cruel in that it involved torture or depravity of mind; and (3) the murder was

committed while Hines was engaged in committing, or was an accomplice in the commission of,
No. 15-5384, Hines v. Mays


or was attempting to commit, or was fleeing after committing or attempting to commit, any rape,

robbery, or larceny. See Tenn. Code Ann. § 39-2-203(i)(2),(5),(7) (1982) (repealed). Hines was

sentenced to death.

       On direct appeal, the Supreme Court of Tennessee affirmed the conviction, but remanded

the case for a new sentencing hearing. State v. Hines, 758 S.W.2d 515, 524 (Tenn. 1988). The

Supreme Court set forth the following facts:

       Between 1:00 and 1:30 p.m. on 3 March 1985 the body of Katherine Jean Jenkins
       was discovered wrapped in a sheet in Room 21 of the CeBon Motel off Interstate
       40 at Kingston Springs. The victim was a maid at the motel and had been in the
       process of cleaning the room when she was killed. Her outer clothing had been
       pulled up to her breasts. Her panties had been cut or torn in two pieces and were
       found in another area of the room. A $20 bill had been placed under the wrist band
       of her watch.

       The cause of death was multiple stab wounds to the chest. Four deep, penetrating
       wounds, ranging from 2.5 inches to 6.4 inches in depth, had been inflicted about
       the victim’s chest with a knife similar to a butcher knife or a hunting knife. Other
       superficial cuts were found in the area of the neck and clavicle. There was also a
       knife wound which penetrated through the upper portion of the vagina into the
       mesentery in the lower part of the abdominal cavity. Dr. Charles Harlan who
       performed the autopsy on the victim’s body testified that in view of the small
       amount of blood in the vaginal vault it was his opinion the wound occurred at or
       about the time of death. The victim also had what he described as “defensive
       wounds” on her hands and arms.

       Jenkins had been left in charge of the motel at about 9:30 a.m. At that time the
       occupants of Rooms 9, 21 and 24 had not yet checked out. When the manager left
       her in charge she was given a Cheatham County State Bank bag containing $100 in
       small bills to make change for motel guests as they paid. The bank bag, bloody and
       empty, was discovered in the room with her body. It was her established habit to
       lock her automobile at all times and to keep her keys and billfold on her person
       when she worked. Her car keys, billfold and her 1980 silver-colored Volvo were
       missing.

       On 1 March 1985 defendant had departed by bus from Raleigh, North Carolina. He
       had been given a non-refundable ticket to Bowling Green, Kentucky and $20 in
       spending money. The traveling time from Raleigh, North Carolina to Nashville,
       Tennessee was approximately 17 hours. Prior to his departure he was observed by
       a witness to be carrying a hunting knife in a sheath which was concealed beneath
       his shirt. The witness admonished him that he could not carry a knife like that on

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No. 15-5384, Hines v. Mays


      the bus to which he responded “I never go anywhere naked.” “I always have my
      blade.” Sometime in the early morning hours of 3 March 1985 he checked in and
      was assigned to Room 9 at the CeBon Motel. He was wearing a green army-type
      fatigue jacket, fatigue pants and boots. He was next seen at approximately 9:30
      a.m. walking in a direction from his room toward a drink machine. At that time he
      told the manager he was not yet ready to check out. He was also seen sometime
      prior to 9:30 purchasing a sandwich at a deli-restaurant across the street from the
      motel. The same witness who saw defendant also saw another stranger there
      somewhere between 1:30 and 2:30 who she described as taller than defendant with
      dark hair, kinky looking and wild-eyed. He departed the restaurant in the general
      direction of the CeBon Motel. The C[hea]tham County Sheriff testified that he
      responded to a call to the CeBon Motel at 2:37 p.m. When he arrived on the scene
      blood spots in the room were beginning to dry and the body was beginning to
      stiffen. Defendant was seen between 11:00 and 11:30 a.m. walking from the
      direction of the Interstate toward the CeBon Motel. At 12:40 p.m. a witness saw
      the victim’s Volvo automobile pulling out from the CeBon Motel driveway. It was
      being operated by a person who appeared to be a man with very short, light colored
      hair. The vehicle crossed over the Interstate and turned east on Interstate 40. She
      followed behind and endeavored to catch up but it sped off toward Nashville at a
      high rate of speed. Defendant was next identified in possession of the car a few
      miles past Gallatin on Interstate 65, heading in the direction of Bowling Green,
      Kentucky. A group of young people first endeavored to help him start the stalled
      automobile and then gave him a ride to Bowling Green.

      During the trip to Bowling Green one of these witnesses observed some dried blood
      on the right shoulder of his shirt. He carried a jacket which he kept folded. After
      he arrived at his sister’s home in Bowling Green defendant told her he had
      endeavored to pay another day’s rent at a motel when he was attacked by the motel
      operator. He demonstrated to her how he had stabbed the man. He also related to
      her he had a sum of money. She could not remember whether he said $35,000 or
      $3,500. Defendant also told his sister’s husband he had earned approximately
      $7,000 working as a mechanic in North Carolina. He displayed a set of keys to a
      Volvo automobile and explained that a man who had given him a ride attempted to
      rob him. Defendant purportedly grabbed the steering wheel and when the car ran
      off the road he grabbed the keys and ran. According to the witness he was wearing
      an army fatigue jacket which had something large, heavy and bulky in the pocket.
      The witness had previously seen defendant with a survival knife with a 6 ½ to 7
      inch blade hanging from his belt.

      When defendant was taken into custody he volunteered the statement that he had
      taken the woman’s car but had not killed her. According to the arresting officer he
      had not advised the defendant that a woman had been killed prior to the volunteered
      statement. There was evidence however that defendant was aware he had been
      charged in Tennessee on a murder warrant. The victim’s wallet was found wrapped
      in a thermal underwear shirt a short distance from where her car was found
      abandoned. The key to Room 9 of the CeBon Motel was found at the site where

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No. 15-5384, Hines v. Mays


       defendant had been camping out near Cave City, Kentucky. When asked by a
       [Tennessee Bureau of Investigation (“TBI”)] agent to tell the truth about the death
       of Katherine Jenkins defendant stated that if the officer could guarantee him the
       death penalty he would confess and tell him all about the murder and that he could
       tell him everything he wanted to know if he was of a mind to. There were marks
       on the wall of Room 9 at the CeBon Motel apparently made by someone stabbing
       a knife into the wall. When shown photographs of the marks on the wall defendant
       responded that they were knife marks. These marks were obviously made by a
       knife larger than [the] two taken from defendant at the time of his arrest.

Id. at 517–19. In 1989, the trial court conducted a new sentencing hearing, and the jury found the

same three aggravating factors. Hines was again sentenced to death, and the Tennessee Supreme

Court affirmed the sentence. State v. Hines, 919 S.W.2d 573, 584 (Tenn. 1995).

       In March 1997, Hines sought post-conviction relief. The trial court held evidentiary

hearings and denied relief. The Tennessee Court of Criminal Appeals affirmed the decision. Hines

v. State, No. M2002-01352-CCA-R3-PD, 2004 WL 112876, at *39 (Tenn. Crim. App. Jan. 23,

2004). In June 2004, the Tennessee Supreme Court granted Hines’s application to appeal and

remanded the case to the court of criminal appeals to reconsider its determination that the trial

court submitted an incorrect version of the aggravating circumstance in Tenn. Code Ann. § 39-2-

203(i)(5) to the jury. On remand, the court of criminal appeals held that the (i)(5) aggravating

circumstance instruction had been proper and again denied relief. Hines v. State, No. M2004-

01610-CCA-RM-PD, 2004 WL 1567120, at *1 (Tenn. Crim. App. July 14, 2004). The Tennessee

Supreme Court denied leave to appeal.

       Hines’s second post-conviction petition seeking funds and authorization to conduct DNA

testing was unsuccessful. Hines v. State, No. M2006-02447-CCA-R3-PC, 2008 WL 271941, at

*1 (Tenn. Crim. App. Jan. 29, 2008). The Tennessee Supreme Court denied leave to appeal.




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No. 15-5384, Hines v. Mays


                             FEDERAL COURT PROCEEDINGS

       In January 2005, Hines filed a pro se petition for a writ of habeas corpus in the district

court. After Hines received appointed counsel, he filed an amended petition in June 2005. One

month later, Hines filed another amended petition in which he asserted thirty-one claims of

constitutional error. The warden filed a response. In September 2005, Hines filed a motion to

conduct discovery. In November 2005, the district court held the case in abeyance to allow Hines

to pursue state-court remedies under Tennessee’s Post-Conviction DNA Analysis Act of 2001.

Hines’s petition for DNA testing was ultimately denied, and the denial was affirmed on appeal.

Hines v. State, M2006-02447-CCA-R3-PC, 2008 WL 271941, at *8 (Tenn. Crim. App. Jan. 29,

2008), perm. app. denied (Tenn. Dec. 8, 2008).

       The federal case resumed in February 2009. In October 2010, the district court granted

Hines permission to conduct DNA testing. In February 2013, the district court held the case in

abeyance pending the issuance of Trevino v. Thaler, 569 U.S. 413 (2013), in light of the Supreme

Court’s decision in Martinez v. Ryan, 566 U.S. 1 (2012). In May 2014, the warden filed a motion

for summary judgment. After holding an evidentiary hearing, the district court granted the

warden’s motion and denied Hines’s petition. The district court certified for appeal all claims

related to the death sentence. Following a remand for reconsideration of its certified claims under

Slack v. McDaniel, 529 U.S. 473 (2000), the district court narrowed the scope of the claims

certified for appeal. We expanded the certification.

                                   STANDARD OF REVIEW

       The district court’s denial of a habeas petition is reviewed de novo. Adams v. Bradshaw,

826 F.3d 306, 309 (6th Cir. 2016), cert. denied, 137 S. Ct. 814 (2017). The district court’s findings

of fact are reviewed for clear error, and its legal conclusions on mixed questions of law and fact



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No. 15-5384, Hines v. Mays


are reviewed de novo. Id. at 309–10. Hines’s petition was filed in January 2005 and is subject to

the requirements of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Id. at

310. Under AEDPA, a writ shall not be granted unless the state court’s adjudication of the claim:

       (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 on an unreasonable determination of the
       facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). Relief may be granted under the “contrary to” clause “if the state court

arrives at a conclusion opposite to that reached by th[e Supreme] Court on a question of law or if

the state court decides a case differently than th[e Supreme] Court has on a set of materially

indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13 (2000). Relief may be granted

under the “unreasonable application” clause “if the state court identifies the correct governing legal

principle from th[e Supreme] Court’s decisions but unreasonably applies that principle to the facts

of the prisoner’s case.” Id. at 413. Hines “has the burden of rebutting, by clear and convincing

evidence, the presumption that the state court’s factual findings were correct.” Henley v. Bell, 487

F.3d 379, 384 (6th Cir. 2007) (citing 28 U.S.C. § 2254(e)(1)).

                                           DISCUSSION

       The following claims were certified for appeal: (1) whether Hines was entitled to an

evidentiary hearing concerning (a) DNA and fingerprint evidence that would have supported an

actual innocence claim to overcome a procedural bar, and (b) declarations by Hines’s trial and

post-conviction counsel concerning their omissions; (2) whether trial counsel were ineffective for

failing to: (a) challenge the jury panel as to the underrepresentation of women, (b) make a closing

argument at the resentencing hearing, (c) challenge the underrepresentation of women on the petit

and grand juries, present evidence of Hines’s personal history as well as his alcohol and drug


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No. 15-5384, Hines v. Mays


abuse, and object to the prosecution’s failure to provide notice of aggravating circumstances,

(d) interview and conduct an effective cross-examination of Ken Jones, (e) investigate and present

evidence of residual doubt, (f) challenge Dr. Charles Harlan’s testimony, and (g) challenge the

imposition of the death penalty as arbitrary and unconstitutional because the trial judge rejected a

plea agreement which would have resulted in a life sentence; and (3) the prosecution withheld

exculpatory evidence and elicited false testimony in violation of Brady v. Maryland, 373 U.S. 83

(1963), and Giglio v. United States, 405 U.S. 150 (1972). On appeal, Hines does not address his

claims of trial counsel ineffectiveness for failing to make a closing argument at the resentencing

hearing and to object to the prosecution’s failure to provide notice of aggravating factors. Hines

has thus waived those claims. Elzy v. United States, 205 F.3d 882, 886 (6th Cir. 2000).

       For the reasons described below, we hold that trial counsel were ineffective for failure to

interview and conduct an effective cross-examination of Ken Jones, and for the related failure to

investigate and present evidence of residual doubt in relation to Ken Jones at the penalty phase of

the trial. The state court’s contrary ruling was an “unreasonable application of . . . clearly

established Federal law, as determined by the Supreme Court of the United States” in Strickland

v. Washington, 466 U.S. 668 (1984), and we thus reverse the district court’s denial of Hines’s

petition for a writ of habeas corpus. 28 U.S.C. § 2254(d)(1). Before discussing this meritorious

claim, we explain below why we reject Hines’s other claims of error.

I.     Whether Hines’s claim that trial counsel were ineffective for failing to investigate and
       conduct forensic testing warranted an evidentiary hearing.

       Hines’s habeas petition asserted the ineffective assistance of trial counsel (IATC) arising

from trial counsel’s failure to investigate and conduct forensic testing of various pieces of

evidence. Hines now argues that he was entitled to an evidentiary hearing on this IATC claim

because the evidence demonstrated his actual innocence. Acknowledging that this IATC claim is


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No. 15-5384, Hines v. Mays


procedurally defaulted, Hines argues that a showing of either actual innocence or the ineffective

assistance of post-conviction counsel can overcome this default.

       The district court’s decision not to hold an evidentiary hearing is reviewed for an abuse of

discretion.   Hodges v. Colson, 727 F.3d 517, 541 (6th Cir. 2013) (citations omitted).

No evidentiary hearing is required “if the record refutes the applicant’s factual allegations or

otherwise precludes habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007).

       The district court held the habeas proceedings in abeyance and permitted Hines to exhaust

state-court remedies concerning the DNA testing of certain evidence. In state court, Hines filed a

successive post-conviction petition seeking to subject the following evidence to DNA testing:

Jenkins’s underwear; Jenkins’s dress; Jenkins’s slip; a bloody bank bag; a cigarette butt from

Room 21; a twenty-dollar bill that was found on Jenkins; and a plastic spray bottle found in Room

21. Hines, 2008 WL 271941, at *3. The trial court denied the petition and that decision was

affirmed on appeal. Id. at *6–8.

       When the habeas proceedings resumed, the district court granted Hines discovery and

permitted DNA testing of the same evidence. Test results revealed that a section of Jenkins’s

underwear contained “a mixture of DNA from at least three individuals.” (R. 124-1, PID 1349.)

The results further clarified that the sample contained genetic material from “at least two male

individuals,” and that Hines was excluded as a contributor. (Id.) The district court did not hold

an evidentiary hearing on this matter because Jenkins’s murder was not committed in the context

of sexual assault. (R. 145, PID 2310 (“If this murder involved sexual intercourse, the Court would

be inclined to agree with Petitioner about this DNA evidence warranting an evidentiary hearing.

Yet, the victim’s death was caused by multiple and deep knife wounds to her chest area including




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No. 15-5384, Hines v. Mays


her heart, lungs[,] and diaphragm.”).) The district court concluded that the IATC claim was

procedurally defaulted because it was not raised in state court and, alternatively, lacked merit.

       Hines concedes that this IATC claim is procedurally defaulted. Review of this claim is

thus barred “unless the prisoner can 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).

“[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction

of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a

showing of cause for the procedural default.” Murray v. Carrier, 477 U.S. 478, 496 (1986). To

successfully assert actual innocence, a petitioner “must show by clear and convincing evidence

that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for

the death penalty under the applicable state law.” Sawyer v. Whitley, 505 U.S. 333, 336 (1992).

Because Hines’s IATC claim is procedurally defaulted, the actual innocence claim “is thus ‘not

itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to

have his otherwise barred constitutional claim considered on the merits.’” Schlup v. Delo,

513 U.S. 298, 315 (1995) (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)). Hines must

show that “it is more likely than not” that “in light of the new evidence, no juror, acting reasonably,

would have voted to find him guilty beyond a reasonable doubt.” Id. at 327–29.

       To support his claim of actual innocence, Hines characterizes his trial as one involving a

sexual assault and murder, and relies on House v. Bell, 547 U.S. 518 (2006), to underscore the

importance of the DNA test results.




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No. 15-5384, Hines v. Mays


       In House, the petitioner Paul House was convicted of the first-degree murder of Carolyn

Muncey and sentenced to death. Id. at 521. At trial, the prosecution presented evidence suggesting

that DNA material found on Muncey’s nightgown and underwear belonged to House, and that the

blood found on House’s jeans belonged to Muncey. Id. at 528–30. In closing arguments, the

prosecution argued that House’s desire to have sex with Muncey was a possible motive for the

crime. Id. at 531–32. House unsuccessfully filed two state post-conviction petitions, the second

of which contained several IATC claims that were found to be waived. Id. at 533–34. On habeas

review, the district court and this court held that House had not shown actual innocence to

overcome the default of his IATC claims. Id. at 534–36 (citing House v. Bell, 386 F.3d 668 (6th

Cir. 2004) (en banc)).

       The Supreme Court disagreed. The Court noted that subsequent testing revealed that

Muncey’s nightgown and underwear contained DNA from her husband rather than from House,

eliminating “the only forensic evidence at the scene that would link House to the murder.” Id. at

540–41. The Court observed that this new information altered the prosecution’s theory of the case:

“When the only direct evidence of sexual assault drops out of the case, so, too, does a central theme

in the State’s narrative linking House to the crime.” Id. at 541. Additional testing prompted one

expert to opine that the blood on House’s jeans “came from the autopsy samples, not from Mrs.

Muncey’s live (or recently killed) body.” Id. at 543. The Court explained that the prosecution’s

efforts to discredit the expert’s opinion were undermined by a police officer’s statement that he

saw “reddish brown stains” on House’s blue jeans and that “[t]he pants were in fact extensively

soiled with mud and reddish stains, only small portions of which are blood.” Id. at 547. Other

evidence showed that Muncey’s marriage had involved physical abuse and that Muncey’s husband

had purportedly confessed to killing her. Id. at 549–50. The Court granted relief because “the



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No. 15-5384, Hines v. Mays


central forensic proof connecting House to the crime—the blood and the semen—has been called

into question, and House has put forward substantial evidence pointing to a different suspect.” Id.

at 554.

          Hines also relies on Mills v. Barnard, 869 F.3d 473 (6th Cir. 2017). The plaintiff in Mills

had been convicted of rape of a child, aggravated sexual battery, and casual exchange of a

controlled substance. Id. at 478. The primary evidence in support of his conviction was the

victim’s statement that she had engaged in sexual intercourse with Mills and corroborating DNA

evidence suggesting that Mills was a possible source of a DNA sample. Id. On habeas review,

Mills presented new DNA analysis that directly contradicted the state’s inconclusive evidence and

excluded Mills as a contributor of the DNA. Id. at 478–79. The Tennessee Court of Criminal

Appeals overturned all of Mills’ convictions, finding that the DNA evidence called into question

the victim’s statement. Id.

          Here, unlike in House and Mills, DNA evidence was not used to establish Hines’s guilt.

At trial, Sheriff Weakley testified that Room 21 did not contain Hines’s blood or fingerprints and

that Jenkins’s blood was not found on Hines’s clothing. At the 1989 resentencing hearing, the

medical examiner, Dr. Harlan, testified that “[a] visual inspection [of Jenkins] was performed.

Since there was no material that was indicative of semen, no scientific or laboratory study was

performed, since there was no such material to evaluate.” (R. 173-9, PID 4737.) He confirmed

that he did not see any visual indication that a sexual assault had occurred. When asked whether

that precluded a “penile sexual assault,” Dr. Harlan answered: “Not necessarily. It means that

there is no semen present, so there was no ejaculation.” (Id. at PID 4740.) In closing argument at

Hines’s resentencing, the prosecutor mentioned the injury to Jenkins’s vagina, but did not describe

the injury as a sexually motivated crime; rather, the wound was evidence of a “reprehensible,”



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No. 15-5384, Hines v. Mays


“vile” act by “a depraved mind.” (R. 173-11, PID 5029, 5032, 5037.) Hines’s reliance on House

and Mills is thus misplaced because the new evidence does not undermine any evidence central to

his conviction.

        Hines also submits that new fingerprint evidence supports his actual-innocence claim. Max

Jarrell, a former fingerprint examiner for the Federal Bureau of Investigation (FBI), declared that

Hines’s fingerprints did not match fingerprints found at the scene and on the relevant evidence.

As with the DNA evidence, however, this does not demonstrate Hines’s actual innocence. The

prosecution did not rely on fingerprint evidence to convict Hines, and the existence of other

people’s fingerprints at the scene does not undermine any of the evidence that the prosecution

presented at trial.

        The prosecution offered the following evidence at trial. Sheriff Weakley testified that

Hines confessed to stealing Jenkins’s car, which had the keys in it, and left the motel at either 8:30

or 9:00 a.m. on Sunday. Jenkins’s husband testified that Jenkins locked her car “religiously” and

used a key ring emblazoned with the words “I love my Volvo,” with a heart symbol in the place

of “love.” (R. 173-1, PID 3826–28.) Gay Doyle, who managed the CeBon Motel, testified that

Jenkins “always locked her car” and “always kept [her keys] in her pocket with her.” (Id. at PID

3850–52.) Doyle testified that she saw Hines walking from his room to a vending machine when

she was leaving the motel “[b]etween 9:25 and 9:30.” (Id. at PID 3849.) Penny Rust, who worked

with Jenkins on a part-time basis, testified that she saw Jenkins’s car leave the motel at 12:40 p.m.

on Sunday; though she could not determine the driver’s gender, she knew that Jenkins was not

driving because she “would never drive [that] fast.” (R. 173-2, PID 3883–84.)

        Daniel Blair testified that he and his friends were driving to Bowling Green, Kentucky

when they saw Hines stranded on the side of the road in a silver car that had overheated. After



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No. 15-5384, Hines v. Mays


looking for water for thirty to forty-five minutes, Blair and his friends gave Hines a ride to Bowling

Green, where Hines’s sister lived. This journey lasted “around an hour.” (Id. at PID 3908.) Hines

told Blair that he had purchased the car from an “old lady” for “three or four hundred dollars.” (Id.

at PID 3910–11.) Blair noticed that Hines had a key attached to a “black thing” that had a “9” on

it. (Id. at PID 3913–14.) Blair and his friends dropped Hines off at “3:00 or 4:00 o’clock.” (Id.)

       Victoria Daniel, Hines’s sister, testified that Hines was in her home when she arrived there

between two o’clock and five o’clock on Sunday afternoon. Daniel testified that Hines told her

that he was attacked when he attempted to pay rent for another night at a motel but “got [the

attacker] in the side, you know, and in the chest” with a knife. (R. 173-2, PID 3966–68.) Daniel

noticed that Hines had “something reddish” on his t-shirt, which she described “as blood at first.”

(Id. at PID 3974.) She also saw Hines with a key ring that had the words “I love Volvo” on it. (Id.

at PID 3975.)

       Robert Daniel, Hines’s brother-in-law, testified that he noticed that Hines had an “I love

Volvo” key chain. Hines explained that he grabbed the key chain from the car’s ignition after a

man who had picked him up tried to rob him.

       Hines has not established that it is more likely than not that no reasonable juror would have

convicted him in light of the new forensic evidence. See Schlup, 513 U.S. at 327. Although a

“petitioner’s showing of innocence is not insufficient solely because the trial record contained

sufficient evidence to support the jury’s verdict,” id. at 331, the lack of Hines’s DNA on Jenkins’s

underwear and the failure to find his fingerprints on various items in the hotel does not contradict

the evidence presented by the prosecution at trial. As such, Hines cannot satisfy his burden. Cf.

Souter v. Jones, 395 F.3d 577, 596–97 (6th Cir. 2005) (finding that petitioner established actual




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No. 15-5384, Hines v. Mays


innocence by presenting new evidence that diminished impact of trial evidence linking petitioner

to commission of crime).

          Alternatively, Hines argues that the ineffectiveness of counsel for failing to raise the IATC

claim on post-conviction review can overcome the procedural bar. In Martinez, the Supreme Court

held that a successful claim asserting the ineffective assistance of post-conviction counsel could

excuse the procedural default of an IATC claim if the IATC claim could only be raised on collateral

review:

          Where, under state law, claims of ineffective assistance of trial counsel must be
          raised in an initial-review collateral proceeding, a procedural default will not bar a
          federal habeas court from hearing a substantial claim of ineffective assistance at
          trial if, in the initial-review collateral proceeding, there was no counsel or counsel
          in that proceeding was ineffective.

566 U.S. at 17. The Martinez rule was expanded to incorporate jurisdictions in which the

“procedural framework, by reason of its design and operation, makes it highly unlikely in a typical

case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance

of trial counsel on direct appeal.” Trevino, 569 U.S. at 429. The Martinez rule applies to

Tennessee. See Sutton v. Carpenter, 745 F.3d 787, 795–96 (6th Cir. 2014). As such, Hines must

show both that post-conviction counsel was ineffective and that the IATC claim “is a substantial

one, which is to say that the prisoner must demonstrate that the claim has some merit.” Martinez,

566 U.S. at 14.

          A successful claim of counsel ineffectiveness requires a showing that counsel’s

performance was deficient and that the deficient performance prejudiced the defense. Strickland

v. Washington, 466 U.S. 668, 687 (1984). Deficient performance occurs when counsel makes

“errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by




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No. 15-5384, Hines v. Mays


the Sixth Amendment.” Id. Prejudice occurs when counsel’s errors are “so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable.” Id.

        In support, Hines relies on a declaration by his post-conviction counsel, Donald E. Dawson,

who stated in relevant part:

        Though the post-conviction petition raised a general claim that counsel was
        ineffective for failing to properly obtain and examine the physical evidence at the
        original trial, our office never presented any evidence in support of such a claim at
        the evidentiary hearing. We did not raise a similar claim related to the resentencing
        hearing. We never secured the physical evidence or otherwise employed forensic
        experts (such as fingerprint or serology experts) to assist us in the investigation of
        the physical evidence and claims relating to counsel’s ineffectiveness for failing to
        obtain, examine, and/or test the physical evidence. We had no tactical reason for
        not doing so.

(R. 124-10, PID 1385.) Assuming deficient performance arising from post-conviction counsel’s

failure to retain expert assistance or pursue forensic testing, Hines cannot show prejudice. As

discussed, it is not likely that the new DNA evidence would not have produced a different result

at trial, and any errors by trial counsel related to the forensic evidence were not so serious as to

deprive Hines of a fair trial. As such, Hines cannot overcome the default of the IATC claim. Nor

has Hines shown that the district court abused its discretion by denying him an evidentiary hearing.

II.     Whether trial counsel were ineffective for failing to challenge systematic
        underrepresentation of women on venires and as grand-jury forepersons in Cheatham
        County.

        Hines next contends that trial counsel were ineffective because they did not challenge the

systematic underrepresentation of women on the venires in Cheatham County, Tennessee, or the

systematic exclusion of women from serving as a grand jury foreperson in Cheatham County. The

warden argues that the state court’s resolution of the former claim was not an unreasonable

application of Supreme Court precedent. As to the latter claim, the warden argues that the claim

is procedurally defaulted.



                                                   -15-
No. 15-5384, Hines v. Mays


        Hines must show that trial counsel performed deficiently, that is, “made errors so serious

that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Strickland, 466 U.S. at 687. In so doing, Hines “must overcome the presumption

that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’”

Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Second, Hines must show that

the deficient performance resulted in prejudice, meaning, “counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687.

        Hines argues that trial counsel should have challenged the underrepresentation of women

on the venires. Under the Sixth Amendment, a criminal defendant is guaranteed the right to be

tried by a jury selected from a fair cross-section of the community. Taylor v. Louisiana, 419 U.S.

522, 537 (1975). A prima facie showing of the denial of this right requires a defendant to show:

        (1) that the group alleged to be excluded is a ‘distinctive’ group in the community;
        (2) that the representation of this group in venires from which juries are selected is
        not fair and reasonable in relation to the number of such persons in the community;
        and (3) that this underrepresentation is due to systematic exclusion of the group in
        the jury-selection process.

Duren v. Missouri, 439 U.S. 357, 364 (1979). Notably, “neither Duren nor any other decision of

th[e Supreme] Court specifies the method or test courts must use to measure the representation of

distinctive groups in jury pools.” Berghuis v. Smith, 559 U.S. 314, 329 (2010). Nevertheless, if

the defendant makes the prima facie showing, then “it is the State that bears the burden of justifying

this infringement by showing attainment of a fair cross section to be incompatible with a significant

state interest.” Duren, 439 U.S. at 368.

        Hines correctly identifies women as a distinctive group within a community. See id. at 364

(citing Taylor, 419 U.S. at 531); Ford v. Seabold, 841 F.2d 677, 681 (6th Cir. 1988). Thus, Hines

has satisfied the first prong.


                                                  -16-
No. 15-5384, Hines v. Mays


         To satisfy the second prong, Hines refers to the Tennessee Court of Criminal Appeals’

opinion concerning the disparity between the percentage of women living in Cheatham County

and the percentage of women who have comprised the venires:

         Based upon the report of Dr. James O’Reilly which provided that the percentage of
         women in Cheatham County between 1979 and 1990 was 50.6 to 50.7% of the
         population, but the percentage of women in the Cheatham County jury venire for
         that same time period was between 10 and 22%, the State conceded that the first
         two prongs of the Duren test had been satisfied.

Hines, 2004 WL 1567120, at *34. The warden does not discuss the first or second prongs of the

Duren test on appeal.

         The issue then is whether Hines has established a systematic exclusion of women from the

jury selection process. Unlike in Taylor and Duren, Hines does not argue that statutory provisions

form the basis of the exclusion.1 Rather, he relies on testimony offered during the initial post-

conviction proceedings to support this claim.

         Jennie Delores Harris Moulton, who worked in the clerk’s office of the Cheatham County

circuit court during Hines’s trials, testified about the procedure for selecting a venire. A judge

appointed three individuals as jury commissioners who would meet with the court clerk “each

month to draw out names to get a panel of jurors for the next upcoming court.” (R. 174-2, PID

5354.) This was called the “sheriff’s voir dire.” (Id. at PID 5355.) The sheriff served summons

for those individuals, who, when they appeared, were placed on “a jury list.” (Id.) “The judge, at

that time, drew out a panel for the grand jury” and “the petit jury—the trial jury.” (Id.)

         The first step of the process involved “charging the jury box,” which, as Moulton

explained, meant that “they gather new names and all and put [the names] back into the box,” a


         1
           In Taylor, the petitioner pointed to a Louisiana statute that automatically excluded all women from the jury-
selection process unless they had previously filed a written declaration of their desire to serve. 419 U.S. at 523–24.
Likewise, in Duren, Missouri law established an automatic exemption from jury service for women who either
requested not to serve or failed to report for service. 439 U.S. at 361, 361 n.11, 368.

                                                         -17-
No. 15-5384, Hines v. Mays


procedure that occurred every two years “unless the box is getting low and you need to do it more

than that.” (Id. at PID 5357.) Moulton explained that the jury commissioners obtained the names

for the box from “the voter registration list, because we had more access to it. And they would go

randomly, maybe, every sixteenth one or twentieth one down and write the name and address on

a little jury ticket.” (R. 174-2, PID 5357–58.) When charging the box, each of the three jury

commissioners worked from a separate section of the County’s voter registration list and would

independently select names. Moulton testified that to assemble the list that would become the

sheriff’s voir dire, either a child or a blindfolded person would draw names from the box. Two

men and one woman served as the jury commissioners; Ms. Adkisson, one of the commissioners,

wrote down the names as the other two commissioners called them out.

       Moulton testified that the jury commissioners tried “to get good solvent jurors” and would

remove a name from consideration “if they knew at that time if there was someone that was

deceased or someone that was real sick or in the hospital or if it was a student that they knew was

off to college somewhere, [or] someone that maybe was in jail.” (Id. at PID 5368.) When the

selected person was a school teacher, the jury commissioners “would pitch it back—or lay him

over to the side to put back into the box where they could—he could serve maybe during the

summer months . . . when he’s not in school.” (Id. at PID 5368–69.) When asked whether women

with children were also removed, Moulton replied: “Well, no, not all women with children. But

if they had just had a baby or something and they knew it, yeah, you know, they—they did.” (Id.

at PID 5369.)

       Moulton testified that once the jury commissioners compiled a list of individuals, the list

was given to the sheriff, who prepared the jury summonses; the person was either served or

instructed by telephone to pick up the summons, which contained the date for the individual to



                                               -18-
No. 15-5384, Hines v. Mays


appear for jury service. When those summoned appeared in court, their information was collected

and they were assigned a number. A judge then selected numbers from a box; the first twelve

individuals who had a corresponding number served on the grand jury, and the remainder on the

petit juries.

        Moulton testified that the number of individuals who appeared pursuant to the summonses

varied. Sheriff Weakley, who was sheriff during both of Hines’s trials, would be given a list of

150 individuals to summon, but only a third or less would appear. By contrast, under Sheriff

Weakley’s successor, approximately 75 to 80 percent would appear. There was no discipline for

individuals who failed to appear, and no effort was made to understand why compliance was low

during Sheriff Weakley’s tenure. The individuals who did appear were divided into petit jurors

and grand jurors.

        When asked whether a conscious effort was made to exclude women from jury service,

Moulton’s response was characterized as inaudible in the transcript. Moulton denied that Black

individuals were excluded from jury service. Moulton was again asked whether there was a

conscious effort to exclude a particular group of people, and she responded: “I don’t think it was

an intentional thing. But Ms. Martha Adkisson, she didn’t like too many women on the jury . . .

She would say, [‘]Getting too many women, getting too many women.[’]” (R. 174-2, PID 5383.)

Moulton expanded her answer:

        [S]he would be writing [the names] down, she would tell the guys, say, [“]We’re
        getting too many women, getting too many women.[”] I think they wanted to equal
        it out, but she had a thing about putting too many women on the jury. So when I
        wound up at one time, whenever I was clerk—or even when Mr. Harris was—was
        clerk—we wound up with a big box of women.

(Id.)   When asked whether that circumstance was “an attempt to equalize that,” Moulton

responded: “Yes, sir. I think it was just an attempt. It wasn’t being like—[s]he didn’t have


                                              -19-
No. 15-5384, Hines v. Mays


anything against women, because, naturally, she was one herself. But she, I guess, probably

wanted to equal out . . . the men and the women.” (Id. at PID 5383–84.) Moulton added that the

commissioners “never discriminated [against] anyone because of race, color, or nationality or men

or women or if they had a limp or one eye or whatever.” (Id. at PID 5384.)

       Lloyd Harris testified that he had “never—never seen anyone” on the jury commission do

something that would prevent a group of people from serving on the jury. (R. 174-3, PID 5417.)

Harris denied hearing Ms. Adkisson say that the jury list contained too many women. Harris

acknowledged, however, that some judgments were made:

       It was two men and Ms. Adkisson. She was a school teacher and she done the
       writing down. We’d have somebody draw them out of the box, a small child or
       somebody blindfolded. They would draw the names out and she would write them
       down. And she’d come across one, maybe, was a school teacher that she knew in
       the county. And she’d say, [“]It’s going to be hard for her to serve because she’s a
       school teacher.[”] And back then, you couldn’t get nobody, you know, to—fill in.

(Id.) Harris testified that Ms. Adkisson would “say, [‘]We’ll get her this summer when school is

out.[’]” (Id. at PID 5417–18.) Harris explained that the same would happen for a tobacco farmer

during a harvest. When asked whether the male commissioners would take steps to prevent a

group of people from serving on the jury, Harris replied: “No, sir, I didn’t see nothing.” (Id.)

Harris testified that he was with the commission “[m]ost of the times,” and that his daughter,

Moulton, was there in his absence. (Id.)

       When asked about women being excused from jury service, Harris testified that “[i]t was

easy for them to get off” because “most of them had children at home and had to take care of them.

They didn’t have no babysitter. That’s the number one thing.” (R. 174-3, PID 5419.) Harris was

asked whether he “observe[d] whether the court seemed to be more inclined not to let folks just be

off jury duty just because they wanted to be off jury duty?”; he responded: “I think so, yes, sir.”

(Id. at PID 5420.)

                                               -20-
No. 15-5384, Hines v. Mays


       On re-direct examination, Harris was asked whether Adkisson chose jurors, and he

responded: “Only times she’d ask them not to [be] put on there if it was a school teacher or if it

was a woman she knowed (sic) that had a bunch of children, [and had] nobody to stay with them[.]”

(Id. at PID 5434–35.) Harris testified that, because the commission met once or twice a year during

the school year, multiple possible jurors may have been excluded per year. Harris testified that,

notwithstanding Adkisson’s possible opinion regarding there being “too many women,” he did not

observe that opinion having any effect on the way that names were chosen. (Id. at PID 5435.)

       Hines relies on Duren v. Missouri to support this claim. 439 U.S. 357 (1979). In Duren,

there were two opportunities for the systematic exclusion of women from venires to occur:

(1) when the questionnaires were sent to those randomly selected from the voter registration list,

they contained language stating that a woman could elect not to serve by indicating that desire on

the form and returning the questionnaire to the jury commissioner; and (2) a woman’s failure to

respond to a summons was treated as a claimed exemption, whereas other individuals had to do

more to benefit from an exemption. Id. at 361–62, 366–67. Women comprised 54% of the Jackson

County, Missouri, population at the relevant time. Id. at 362. Noting that “the percentage of the

women at the final, venire, stage (14.5%) was much lower than the percentage of women who

were summoned for service (26.7%),” the Court concluded that the petitioner “demonstrated that

the underrepresentation of women in the final pool of prospective jurors was due to the operation

of Missouri’s exemption criteria.” Id. at 367.

       Hines fails to show an entitlement to habeas relief on this ineffective-assistance-of-counsel

claim with regard to either his 1986 or 1989 trials. As to Hines’s 1986 trial, the Tennessee Court

of Criminal Appeals concluded that “[t]he record supports the post-conviction court’s finding that

Hines was not prejudiced” by counsel’s failure to “challenge the 1986 venire.” Hines, 2004 WL



                                                 -21-
No. 15-5384, Hines v. Mays


1567120, at *36. We cannot say that the Tennessee court’s conclusion was an unreasonable

application of clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d). Hines must

show prejudice to succeed on his IATC claim, even though the alleged underlying error was

structural in nature. See Ambrose v. Booker, 684 F.3d 638, 652 (6th Cir. 2012). To succeed on a

fair-cross-section theory in the context of his ineffective-assistance claim, Hines must show that,

given the underrepresentation of women in the jury venire, there was a reasonable probability that

“a properly selected jury [would] have been less likely to convict.” Id. at 652 (quoting Hollis v.

Davis, 941 F.2d 1471, 1482 (11th Cir. 1991)); see also Garcia-Dorantes v. Warren, 801 F.3d 584,

596–98 (6th Cir. 2015). Hines has not shown a reasonable probability that the result of his trial

would have been different if the jury venire more adequately represented the community,

particularly in light of the fact that three women served on the petit jury.

       Regarding Hines’s challenge to his 1989 resentencing jury, AEDPA also bars Hines’s relief

because the Tennessee Court of Criminal Appeals reasonably determined that Hines “failed to

show that he was prejudiced” by 1989 counsel’s decision not to challenge the venire. Hines, 2004

WL 1567120, at *36. The Tennessee court’s decision was not an unreasonable application of

Strickland.

       The same is true of Hines’s assertion that women were systematically excluded from

serving as the foreperson of the grand jury. “[A] criminal defendant’s right to equal protection of

the laws has been denied when he is indicted by a grand jury from which members of a . . . group

purposefully have been excluded.” Rose v. Mitchell, 443 U.S. 545, 556 (1979). To prevail, Hines

must (1) identify a distinctive and recognizable group, (2) determine the disparity between the

identified group and the proportion of the group called to serve over a period of time, and




                                                 -22-
No. 15-5384, Hines v. Mays


(3) establish that the selection procedure is not gender-neutral. Id. at 565 (citing Castaneda v.

Partida, 430 U.S. 482, 494 (1977)).

        Here, Moulton testified that the grand jury foreman was selected and sworn in by the judge.

The grand jury foreman was appointed for two-year terms; Mouton recalled that two men—Buddy

Frazier and Billy Ellis—were appointed repeatedly. Hines also provided an affidavit from Gaye

Nease, an investigator with the Office of the Federal Public Defender, stating that no woman had

been chosen as a grand-jury foreperson between 1919 and 1985, when Hines was indicted.

        Again, Hines fails to show prejudice. We also note that the grand jury foreperson’s duties

and powers in Cheatham County during this time appear to be merely “ministerial,” and therefore

do not present a risk of prejudice. Hines, 2004 WL 1567120, at *36 n.3. Contrary to the Supreme

Court’s description of the role of the Tennessee grand jury foreperson in Hobby v. United States,

468 U.S. 339, 348 (1984), the relevant state statute establishes that the foreperson has the same

voting power as any other grand juror, Tenn. Code Ann. § 40-1506, and therefore does not have

“virtual veto power over the indictment process.” Hobby, 468 U.S. at 348. Thus, Hines is not

entitled to relief on this claim.

III.    Whether the prosecution withheld exculpatory evidence and elicited false testimony.

        Next, Hines contends that he was denied due process because the prosecutor (1) did not

disclose records indicating the existence of exculpatory DNA evidence and (2) presented

testimony that falsely denied the existence of that evidence.

        Before trial, defense counsel was given a report from the Tennessee Bureau of

Investigation (TBI) that stated that the medical examiner’s swabs “failed to reveal the presence of

spermatozoa.” (R. 175-6, PID 5790.) Post-conviction counsel later discovered some handwritten

“raw notes” from the TBI stating that the swabs that had been sent to the TBI for testing had



                                               -23-
No. 15-5384, Hines v. Mays


molded. (Hines Br. at 20; R. 175-4, PID 5787.) The final report did not disclose this fact. Hines

now argues that the TBI did not find an absence of spermatozoa on the swabs. Rather, “the raw

notes” reveal “no sperm was seen microscopically (likely because of mold)” and “no testing for

semen was done on the swabs because of their molded condition.” (Hines Br. at 20.) Thus, Hines

argues, the final report was misleading. Further, because defense counsel was unaware that there

might have been spermatozoa present, they were unable to explore the theory that the crime was

committed by an unknown assailant by conducting their own testing for semen or DNA.

         Hines also asserts that, had the raw notes been disclosed at trial, defense counsel would

have been afforded an opportunity to impeach Dr. Harlan’s testimony that there was “no material

that was indicative of semen” present. (R. 173-9, PID 4737.) 2

         The warden responds that Hines cannot overcome the procedural default of this claim.

         Hines first raised this claim on habeas review, asserting:

         The prosecution also knowingly presented false testimony from [Dr.] Harlan that
         there was no evidence of semen and that there was no study performed on any such
         evidence, and the prosecution withheld evidence which demonstrated the falsity of
         that testimony and which was otherwise material to the jury’s guilt and death
         verdicts, including proof of the results of any such scientific or laboratory study
         concerning the existence and nature of any semen.

(R. 23, PID 112 ¶10(c)(3)). The district court conducted an evidentiary hearing to address the

Brady claim and denied relief:

         First, there is not any scientific evidence that the mold was caused by the timing of
         the TBI laboratory testing. The possibility of the mold impacting any semen is
         speculative. There is not any scientific proof that if Petitioner’s trial counsel had
         seen the laboratory working papers [the raw notes] about the molded swab that any
         testing could have been conducted. As discussed infra, Dr. Harlan’s trial testimony

         2
            Hines also asserts that the prosecution presented false testimony by Sheriff Weakley, but refers to a district
court pleading in support rather than present an argument in his brief. We thus need not address this portion of the
claim. See Northland Ins. v. Stewart Title Guar. Co., 327 F.3d 448, 453 (6th Cir. 2003) (“[W]e join the many circuits
that have explicitly disallowed the incorporation by reference into appellate briefs of documents and pleadings filed
in the district court.”).


                                                          -24-
No. 15-5384, Hines v. Mays


       was based upon his visual examination of the victim, not a laboratory test. At
       Petitioner’s trial, a TBI laboratory technician testified about the testing of the
       victim’s swabs. To date, the proof remains that the several swabs taken from the
       victim did not contain semen. Petitioner’s tying of the inferences about another
       suspect was found by the State courts to be “farfetched” and this Court agrees. The
       cited suspect was not seen in the area at the time of the murder and the witness did
       not testify that this suspect, described as a wild person, was going to the motel.

(R. 145, PID 2316–17.)

       “[T]he suppression by the prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt or to punishment, irrespective of

the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. “[E]vidence is material

only if 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). “A ‘reasonable probability’ is a probability sufficient to undermine confidence in the

outcome.” Id. The Brady rule applies to both exculpatory and impeachment evidence. Giglio,

405 U.S. at 154. The omission of such evidence “must be evaluated in the context of the entire

record.” United States v. Agurs, 427 U.S. 97, 112 (1976).

       At the guilt phase, Dr. Harlan testified that he performed Jenkins’s autopsy on March 4,

1985. Jenkins suffered a stab wound to her vaginal vault. It was the final wound inflicted on

Jenkins.

       At the resentencing hearing, defense trial counsel asked Dr. Harlan on cross-examination

whether he conducted any tests to determine whether sperm was present or a sexual assault had

occurred, and he responded: “A visual inspection was performed. Since there was no material

that was indicative of semen, no scientific or laboratory study was performed, since there was no

such material to evaluate.” (R. 173-9, PID 4737.) Trial counsel then asked, “So you didn’t even




                                                -25-
No. 15-5384, Hines v. Mays


observe visually anything indicating any type of sexual assault[,] is that right?”; Dr. Harlan

responded, “That is correct.” (Id.) The prosecution pursued this topic on re-direct examination:

       Q: Dr. Harlan, when you said there was no evidence of sexual assault, you meant
       there was no—what type of evidence did you mean?
       A: I meant that there was no evidence of ejaculation; that, there was no semen
       present.
       Q: There would be no penile sexual assault, then? Would that define it better?
       A: Not necessarily. It means that there is no semen present, so there was no
       ejaculation.

(Id. at PID 4740.)

       In a deposition taken during the initial post-conviction proceedings, Dr. Harlan explained

that an autopsy can determine whether sexual contact had occurred but not sexual assault because

“sexual assault . . . has a legal connotation” related to whether there was consent “that goes beyond

whether there’s semen present or not.” (R. 141-1, PID 2045–46.) He stated that he would consider

a stab wound to the vagina a suspicious circumstance that would prompt him to examine for sexual

contact during an autopsy. He affirmed that he would use swabs if he saw no evidence of sexual

contact with the naked eye but suspected that sexual contact had occurred. In this case, he sent

swabs to the TBI, but could not recall whether he examined them. Dr. Harlan stated that he had

not seen the TBI report “until this date.” (Id. at PID 2060.)

       When cross-examined, Dr. Harlan stated that sending anal and vaginal swabs to the TBI

was standard practice. He added that he did not personally test the swabs and did not have the

facility to do so. He denied that a visual inspection of Jenkins’s body led him to believe that semen

was present. He affirmed that he prepared the swabs out of “an abundance of caution.” (Id. at

PID 2066.)

       In the evidentiary hearing held by the district court, Mike Turbeville, a forensic scientist

supervisor at the Forensic Biology Unit at the TBI Crime Lab in Nashville, testified that Dr.

                                                -26-
No. 15-5384, Hines v. Mays


Harlan’s office submitted a form dated March 4, 1985, requesting toxicology testing and a review

of the vaginal and anal swabs taken from Jenkins. Turbeville testified that a TBI report dated July

5, 1985, stated that the swabs—Exhibits No. 41A and 41B—“failed to reveal the presence of

spermatozoa.” (R. 142, PID 2080–81.)

       At the hearing, Turbeville read aloud the raw notes’ description of Exhibit No. 41A, the

vaginal swabs : “Two swabs were molded when received. Numerous RBS, that stands for reddish

brown stains, on tubes and—that second I can’t make out. I don’t know if it’s slits or sheets.

Micro, which is a microscopic exam, July 1, 1985. Scattered epithelial cells, bacteria, yeast. No

SP. No sperm.” (Id. at PID 2087 (quoting R. 175-4, PID 5787).) Concerning the description of

Exhibit No. 41B, the anal swabs, Turbeville quoted the notes as saying: “Rectal swabs, quotes,

Jenkins Catherine, rectum, end quotes. Two swabs with RBS, reddish brown stains, and fecal

material. Micro, July 1, 1985. Scattered debris, some epithelial cells, no sperm.” (Id. at PID 2087

(quoting R. 175-4, PID 5787).) Turbeville testified that the notes meant that testing to determine

the presence of semen had not occurred, but that the final reports do not reflect this fact. Turbeville

acknowledged that it may have been “appropriate” for the TBI report to indicate that no testing for

semen had occurred because the sample “was somewhat compromised by mold.” (Id. at PID

2089–90.)

       While this background demonstrates that laboratory notes were not turned over to trial

counsel, Hines is not entitled to relief on his Brady claim because he has not demonstrated that the

undisclosed notes are material. That is, Hines has not shown a reasonable probability that, had the

raw notes been disclosed to the defense, the result of the proceeding would have been different.

See Bagley, 473 U.S. at 682. Hines argues that had defense counsel been given the notes, they

“would have used [them] . . . to establish that the prosecution could not exclude the reasonable



                                                 -27-
No. 15-5384, Hines v. Mays


hypothesis that someone other than Darrell Hines left semen on the victim,” such as the “suspicious

and wild-eyed individual – not Hines” seen by “the clerk of the store across from the motel . . .

near the time of the killing.” (Hines Br. at 23–24.) However, there is no indication that there was

in fact semen on the swabs or the victim’s body, so Hines’s argument would have been mere

unconvincing speculation. Dr. Harlan testified that he found no evidence of semen upon a visual

inspection and that he only ordered testing out of “an abundance of caution” and not because he

saw evidence of semen, as Hines speculates. (R. 141, PID 2065–66.)

       Nor can Hines show that Dr. Harlan testified falsely. “[A] prosecutor violates a criminal

defendant’s due process rights when she knowingly allows perjured testimony to be introduced

without correction.” Thomas v. Westbrooks, 849 F.3d 659, 666 (6th Cir. 2017), cert. denied, 138

S. Ct. 390 (2017) (citing Agurs, 427 U.S. at 103). To prevail, Hines must show that: “(1) the

statement was actually false; (2) the statement was material; and (3) the prosecution knew it was

false.” Rosencrantz v. Lafler, 568 F.3d 577, 583–84 (6th Cir. 2009) (citing Coe v. Bell, 161 F.3d

320, 343 (6th Cir. 1998)).

       Hines’s argument focuses on Dr. Harlan’s statements that based on a “visual inspection . . .

there was no material that was indicative of semen,” that there was “no such material to evaluate,”

and “there were no semen present.” (Hines Br. at 83 (quoting R. 173-9, PID 4737, 4740).) Because

Hines cannot show that the vaginal swabs contained any evidence of semen, he cannot show that

Dr. Harlan’s testimony was actually false. Hines argues that Dr. Harlan’s office’s request for the

TBI to test “seminal type” indicates that it “concluded there were materials ‘indicative of semen,’”

contrary to Dr. Harlan’s testimony. (Hines Br. at 25 (emphasis removed).) However, Dr. Harlan

has explained that he requested this test out of “an abundance of caution,” (R. 141, PID 2065–66),

and this testing request does not establish that Dr. Harlan’s testimony was actually false,



                                               -28-
No. 15-5384, Hines v. Mays


Rosencrantz, 568 F.3d at 583–84. In fact, post-conviction forensic testing of Jenkins’s underwear

indicated that while there were bloodstains from which DNA testing could be conducted, the test

for semen produced “negative results.” (R. 124-1, PID 1347.) Thus, we reject Hines’s claim that

the prosecution withheld exculpatory evidence or knowingly elicited false testimony.

IV.      Whether trial counsel were ineffective during the penalty phase of trial.

         Hines contends that trial counsel were ineffective during the resentencing phase because

they did not: (1) present available mitigating evidence; (2) challenge Dr. Harlan’s testimony about

the amount of time Jenkins survived after being wounded; or (3) object to the death penalty as

arbitrary and unconstitutional under the circumstances of this case. We address, and reject, each

of these sub-claims in turn.

         A. Failure to present mitigation evidence

         Hines contends that trial counsel were ineffective because they did not present available

mitigation evidence at the penalty phase.3 Specifically, Hines asserts that trial counsel should have

presented evidence that Hines endured physical and sexual abuse by his stepfather as well as sexual




         3
           In the initial state post-conviction proceedings, Hines argued that trial counsel were ineffective because
they did not “present available mitigation evidence, including but not limited to Petitioner’s childhood exposure to
violence, crime, poverty and substance addictions. Had Counsel fulfilled this duty it is likely Petitioner would have
been spared the death sentence.” (R. 174-6, PID 5751.) After an evidentiary hearing, the trial court denied the claim,
and the decision was affirmed on appeal. Hines, 2004 WL 1567120, at *32.
         Hines raised the same argument in the habeas proceedings. The district court found that the state court’s
resolution of this claim was not an unreasonable application of Supreme Court precedent:
         [W]hatever the deficiencies of counsel at the resentencing hearing, the post conviction hearing
         present[ed] additional expert proof and afforded the state courts yet an additional opportunity to
         evaluate the appropriateness of Petitioner’s death sentence. The state courts deemed the Petitioner’s
         extensive mitigation evidence not to outweigh the State’s other proof of aggravating circumstances
         of the wounds. The victim’s wounds, Petitioner’s escape and possession of the victim’s vehicle and
         key, Petitioner’s explanation of events to his sister and the Petitioner’s statements to officers that he
         could provide all the details of the murder lead this Court to conclude that the state courts’ decisions
         on the adequacy of counsel’s performance at sentencing would not have caused a different result
         and those decisions were reasonable applications of clearly established federal law.
(R. 145, PID 2379.)


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No. 15-5384, Hines v. Mays


abuse by an uncle, suffered head injuries as a child, endured physical and psychological abuse at

Green River Boys Ranch, sniffed gasoline and glue and consumed alcohol and drugs as an

adolescent, suffered from paranoia and chronic post-traumatic stress disorder, which affected his

brain function, and has a deficit of serotonin in his brain. The warden responds that the state

court’s decision was not an unreasonable application of Supreme Court precedent.

       As an initial matter, Hines asserts that the state post-conviction appellate court applied the

incorrect standard in reviewing his mitigating-evidence claim, and therefore we should review this

claim de novo. Strickland requires that a petitioner show that there was a “reasonable probability”

that, but for the counsel’s failure to introduce the mitigating evidence, “the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694. Hines argues the state court apparently

applied a stricter standard, as evidenced by the use of the phrase “would not have affected” in its

opinion:

       In Goad v. State, 938 S.W.2d 363 (Tenn. 1996), our supreme court set out the
       relevant factors to consider when determining if prejudice had resulted from a trial
       attorney’s failure to present mitigating evidence during the penalty phase of a
       capital trial. . . . “[C]ourts have considered whether there was such strong evidence
       of aggravating factors that the mitigating evidence would not have affected the
       jury’s determination.”
       In the present appeal, the post-conviction court found that counsel were not
       deficient in their representation of the petitioner, saying that “[i]n view of the
       overwhelming strength of the aggravating factors in Petitioner’s case . . . , the
       mitigating factors would not have affected the jury’s determination[.]”
       Accordingly, under the principles enunciated in Goad, the post-conviction court
       found that the petitioner was not prejudiced. . . . We conclude that the record
       supports this determination.

Hines, 2004 WL 1567120, at *31–32 (emphases added) (quoting Goad, 938 S.W.2d at 371).

       It is unclear what standard the post-conviction court actually applied.           The opinion

identifies the proper Strickland standard in its “Standard of Review” section but does not use the

“reasonable probability” language anywhere else in the opinion—other than in footnote 2, where


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No. 15-5384, Hines v. Mays


the court discusses a case, Wiggins v. Smith, 539 U.S. 510, 516 (2003), which the Tennessee court

found inapplicable. See Hines, 2004 WL 1567120, at *22–23, 31–32, 32 n.2. Although habeas

review includes a “presumption that state courts know and follow the law,” Woodford v. Visciotti,

537 U.S. 19, 24 (2002), we have previously found that a state post-conviction court’s failure to

apply the Strickland test warranted de novo review in circumstances similar to those here. See

Vazquez v. Bradshaw, 345 F. App’x 104, 112 (6th Cir. 2009) (finding the de novo standard

appropriate where the state post-conviction court reviewed whether the trial’s outcome “would

have been different” due to new evidence, rather than whether new evidence presented a

“reasonable probability” of a different outcome). Here, although the court identified the correct

legal standard early in the opinion, it used different language in explaining its decision. When a

state court applies a decisional rule contrary to clearly established federal law, “‘a federal court

[is] unconstrained by § 2254(d)(1),’ and de novo review is appropriate.” Fulcher v. Motley, 444

F.3d 791, 799 (6th Cir. 2006) (quoting Williams v. Taylor, 529 U.S. 362, 406 (2000)). Thus, we

will proceed with a de novo analysis. Hines’s claim fails even under this standard.

       Trial counsel presented extensive mitigation evidence at the 1989 penalty phase. First,

counsel presented testimony from Therman Page, a counselor at the Tennessee State Prison. Page

worked with Hines “on several occasions relating to visits and various other problems that he’s

had.” (R. 173-9, PID 4745.) Page testified that Hines had been disciplined by “receiv[ing] two or

three different writeups[,]” but that none related to violence against another individual. (R. 173-

10, PID 4759–60.) Page described Hines as follows: “[He is] somewhat [of] a loner. He does not

have a lot of close friends as far as the other people that he’s incarcerated with. The times that I

have talked to him and been with him, he has talked to me freely, but he does not have the friends

that a lot of other people have in prison.” (Id. at PID 4760.) According to Page, Hines “does not



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No. 15-5384, Hines v. Mays


have very many visits at all. I don’t recall, right off, any family members at all coming to see him,

the time that I’ve known him,” which was “close to three years.” (Id. at PID 4760–61.)

       Trial counsel next introduced the transcript of John Croft’s testimony from Hines’s first

trial.4 Croft and his wife, Nancy, lived in Cave City, Kentucky and were Hines’s grandparents.

Croft testified that Hines’s mother, Barbara, first married a man named Dugard, with whom she

had three children, including Hines. Dugard abandoned the family when Hines was “maybe ten

or eleven.” (Id. at PID 4767–68.) Barbara then married Bill Hines. Croft and his wife kept the

children because Barbara worked; he described Hines as “a well-mannered boy, a well minding

boy. And the keeping of the children was kind of left to the older girl.” (Id. at PID 4768.) When

Hines was “about thirteen years old,” Barbara and her family moved, and “it was no longer

convenient for [Croft and his wife] to have the children.” (Id. at PID 4769.) According to Croft,

Hines was “a little high tempered” but not troublesome. (Id.)

       Croft testified that Hines stayed with him briefly when he was a teenager, that Hines called

him “Big John,” “never g[a]ve [him] a minute’s trouble,” and “was always well behaved, and he

minded good.” (Id. at PID 4770.) When asked about discipline in the Hines’s home, Croft replied

that he “never figured it was so much a discipline problem as it was the separation. You know,

there was a loneliness.” (Id. at PID 4770–71.) Croft was asked whether Hines minded him, and

he responded: “Always. I had the best respect from him; you know, sometimes even more respect

from him than I did one of my boys. But mine were in and out, gone a lot, school and all. But

Darrell always did mind, and he minded his grandmother, as well.” (Id. at PID 4771.)

       During this stay, Croft noticed a change in Hines’s behavior, searched his room, and saw

evidence that Hines had been sniffing glue. Croft viewed Hines as “a changed personality from



       4
           Croft died before the resentencing hearing.

                                                         -32-
No. 15-5384, Hines v. Mays


that day on” and harbored “doubts” about having him live there permanently. (Id. at PID 4772–

73.) Croft knew that Hines had been incarcerated and suspected that it changed Hines’s behavior:

“He had a chip on his shoulder—a chip on his shoulder all the time. He just wasn’t the same. He

wasn’t himself. You’d have to see the change in him to know it.” (Id. at PID 4774.)

        Croft testified that Hines had a three-year-old son. Hines and his son’s mother suffered

“an emotional conflict” because she had had a relationship with another man. (Id. at PID 4775.)

Croft also offered insight into the crime that led to an earlier incarceration for Hines:

        When he was in that first assault, or whatever it was that he was sent up for,
        I begged the county judge at that time—I explained to the county judge that the boy
        needed help, that he didn’t need confinement at that time, that he needed help. And
        I was laughed at. He needs help now. He’s needed it all these many years, help
        that he didn’t get. And since I’m sworn to tell the truth, this is the truth. I begged
        Basil Griffith, the county judge, to get him help, you know, on that.

(Id. at PID 4776.)

        On cross-examination, Croft testified that Barbara, Hines’s mother, had a drinking problem

until 1979, when she stopped drinking. Croft confirmed that he did not visit Hines during his

incarceration for assault and only saw him one or two times before Jenkins’s murder. On re-direct

examination, Croft testified that he believed that Hines could be helped and noted that Hines

offered no resistance to his arrest.

        Trial counsel next presented the testimony of Pamela Mary Auble, Ph.D., an expert in

clinical psychology. Dr. Auble conducted a psychological examination of Hines, relying on three

primary sources of information: test data; a clinical interview; and various records, such as school

records and “interviews by various investigators.”         (Id. at PID 4796, 4800.)         Dr. Auble

administered several psychological tests, measuring Hines’s I.Q., Hines’s ability to learn and recall

new information, Hines’s adaptability, and other metrics of Hines’s mental, creative, and motor

abilities.

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No. 15-5384, Hines v. Mays


       Dr. Auble summarized her analysis of Hines’s neurological history. She testified that as

an eight-year-old, Hines fell from a hay wagon, resulting in a loss of consciousness and a dent to

his skull. She testified that Hines had “a history of a lot of alcohol and drug abuse, including glue

sniffing, amphetamines, cocaine, heroin[], barbiturates, and a lot of those kinds of things.” (Id. at

PID 4803.) Dr. Auble testified that tests were inconclusive as to the existence of brain damage,

however.

       Dr. Auble also examined Hines’s family history. She testified that Hines was “ignored a

lot when he was growing up” and “didn’t have a lot of interaction with his parents” because both

“worked full time, and [Hines] reported that when they were not working, they tended to drink a

lot.” (Id.) Hines’s mother “took Valium for a lot of years” and “was in a psychiatric hospital once

when [Hines] was nineteen, for nerve problems.” (Id. at PID 4803–04.) Dr. Auble saw “some

evidence of physical abuse”; Hines “reported that he was beat with a tobacco stick by his

stepfather” and “reported whippings when his parents just didn’t know when to stop.” (Id. at PID

4804.) She recalled that Hines “hid in the woods for several days because he was afraid his

stepfather would kill him” after he broke a tractor. (Id.)

       Dr. Auble testified that “[t]here was also indications of some kind of sexual issues within

[Hines’s] family” as Hines reported “growing up early, sexually, somewhere around six years old”

and has one sister who is bisexual and another sibling who is transgender. (Id. at PID 4804, 4806.)

Dr. Auble testified that “the fact that he has [siblings] with such unusual sexual orientations

suggests that in the family, there’s something a little weird that they both turned out that way.”

(Id. at PID 4807.) Dr. Auble testified that Hines “has some issues about masculinity, that sexuality

is a sensitive and troubling area for him, that he has had a lot of difficulty with, which is also

consistent with [his] . . . history.” (Id.) On cross-examination, Dr. Auble stated that she did not



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No. 15-5384, Hines v. Mays


know whether Hines’s early sexual contact at the age of six occurred with a relative; she did not

ask him about the details, as Hines was “reluctant to talk about these things, which, I mean, is

understandable, I think.” (Id. at PID 4843.)

       Dr. Auble observed that Hines’s family did not help him with his problems. When Hines

started abusing alcohol and drugs, the family “move[d] him into his own apartment when he was

fifteen; in a sense, just to get him out of the family and put him out on his own, rather than trying

to help him solve any of the problems.” (Id. at PID 4807.) She added that the family “ha[d] a

history of repeatedly turning him in to the authorities,” resulting in his incarceration. (Id. at PID

4807–08.)    Further, Hines had “trouble” in school partly because he “had to work on his

[step]father’s farm a lot—his [step]father was a farmer—and he wasn’t able to attend school as

often as he should have, so he wasn’t there a lot.” (Id. at PID 4808.) She noted that her testing

suggested a learning disability that would make learning more difficult.

       Dr. Auble summarized the test results. She testified that Hines “is emotionally pretty

immature, that he’s never really grown up,” adding that his “emotional level of maturity is that of

about a teenager.” (Id.) She testified that Hines has “very poor” self-esteem, “has a lot of trouble

with criticism,” “has a lot of trouble trusting other people easily,” and “expects other people to

harm him and is reluctant to trust people enough to confide anything, to tell people his troubles.”

(Id. at PID 4808–09.) She testified that Hines is “real insecure about his masculinity” and has

“underlying depression and anger,” which he managed by either avoiding the underlying problem

or engaging in self-destructive behavior such as drug and alcohol abuse. (Id. at PID 4809–10.)

She noted that “testing did not indicate that he possesses an alcoholic-type personality” and

characterized the alcohol and drug use as “more an escape from the negative feelings that he has

than something he’s just got a natural weakness for.” (Id. at PID 4810.) When stressed, Hines



                                                -35-
No. 15-5384, Hines v. Mays


will become “angry and destructive,”; Dr. Auble recalled “reports of a lot of fights, whenever he’s

provoked in some way, that he just boils up and then stuff comes out of him.” (Id.)

        Dr. Auble diagnosed Hines as having paranoid-personality disorder and dysthymia. She

explained that the former diagnosis requires the individual to exhibit four of the following

symptoms: “expect without basis, to be exploited or conned by other people”; “question the

trustworthiness of friends and associates without justification”; “tend to read threatening messages

or insults into remarks or events that aren’t really all that threatening or insulting”; “tend to bear

grudges” and “don’t forgive insults”; reluctance “to confide in people because they have this fear

that information will somehow be, either, used against them or that they’ll be betrayed”; “react

[quickly] with anger”; and “question the faithfulness of their spouse or sexual partner without

justification.”    (Id. at PID 4810–12.)    Dr. Auble explained that Hines had many of these

characteristics.

        Dr. Auble testified that dysthymia is similar to depression, and Hines suffered the following

symptoms of dysthymia: a depressed mood for at least two years; insomnia; low self-esteem; poor

concentration, and a sense of hopelessness. She testified that the paranoid personality disorder, in

particular, would affect Hines’s ability to handle stress: “The worst thing in the world to happen

to those people is if they finally do trust somebody and then they get betrayed. That’s the worst.

And, in particular, that kind of stress would be the hardest for him to handle.” (Id. at PID 4815.)

        Dr. Auble offered insight into Hines’s only significant relationship with a woman, Melanie,

whom Hines dated for about a year starting in 1981 and with whom he had a son. The relationship

ended because Hines perceived Melanie’s mother and brother to be “freeloading on him,” as “they

weren’t willing to pull their own weight in the household.” (Id.) Hines’s mother, with whom

Hines’s son lived, did not allow Hines to “keep him for any length of time.” (Id. at PID 4815–16.)



                                                -36-
No. 15-5384, Hines v. Mays


In 1985, following his release from prison, Melanie invited Hines to visit her in North Carolina;

he did and they discussed reconciliation. According to Hines, Melanie had changed and was

engaged in drug use and prostitution. Hines told Dr. Auble that Melanie’s mother wanted him to

fight Melanie’s ex-husband, which was problematic because Hines was trying to adjust to life

outside of prison. Dr. Auble described the situation as “particularly hard on [Hines] because, first,

he is very insecure about his masculinity.” (Id. at PID 4817.) “He has a general difficulty trusting

people; and once he does trust somebody, the worst thing in the world for him would be to be

betrayed, and that’s sort of what he felt like happened.” (Id.) Further, Hines “tends to avoid

negative feelings,” “doesn’t deal with them[,]” and “just puts them inside [while]. . . they get worse

and worse.” (Id.) Hines decided to leave for Kentucky on a bus, intending to get his son and move

to Montana. Hines’s parents in Kentucky did not give him his son, called the police, and dropped

him along a Tennessee highway. He later checked into the CeBon Motel.

        Dr. Auble described Hines’s state of mind during his time at the motel. After checking

into his room, he drank and watched television throughout the night, getting little sleep. His mental

state was “very fragile,” he “fe[lt] worthless” and insecure,” and he had “a whole lot of anger and

disappointment and sadness towards Melanie and his parents for rejecting him”; she added that

Hines’s “masculine image is just extremely vulnerable,” meaning that he would “just be very

sensitive to anything that might be seen as criticism.” (Id. at PID 4818.) Dr. Auble surmised that

“any provocation at all would probably result in an explosion of all these feelings.” (Id. at PID

4819.) Dr. Auble found the “stab marks on the wall of the motel room where he was staying”

telling because “most people don’t go around with a knife and stab the walls of motels for fun or

profit,” but do it because they are “suffering from some kind of mental disorder or [are] under a

lot of stress at the time they’re doing stuff like that.” (Id.)



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No. 15-5384, Hines v. Mays


       Dr. Auble testified that she reviewed Hines’s prison records and concluded that he had

“done pretty well in prison” and “hasn’t been any trouble to anybody, basically” as he “kind of

keeps apart from other prisoners.” (Id. at PID 4821.) She explained that Hines is “able to make a

pretty good adjustment when he’s not in a situation which brings up all these feelings” associated

with Melanie and his family. (Id.) She testified that Hines suffered from a mental disease or defect

on the day of the murder but did not pose a threat in a prison environment.

       Trial counsel presented the testimony of Floyd Eugene Collins, Hines’s childhood friend

who first met Hines in their neighborhood at fourteen years old. Collins testified that he saw Hines

sniff gasoline and glue, drink beer and whiskey, and consume marijuana and pills. He testified

that Hines sniffed glue “all the time” and that “[e]very time you’d see him late in the evenings or

something like that, he’d be—have him a glue bag or something like that, just sniffing away.” (Id.

at PID 4861.) Collins testified that, compared to the other neighborhood children, Hines “was

always more hyper, always going somewhere, always talking,” but “was crazy” and “needed help.”

(Id. at PID 4861–62.) Collins testified that there was once a “gasoline party” in Hines’s backyard

where everyone was “just sniffing gas,” and Hines displayed that he “wasn’t right” by repeatedly

riding a bicycle into a chain-link fence. (Id. at PID 4864.)

       Trial counsel also presented the testimony of Charles Preston Smith, who knew Hines

around 1975–76 and testified that Hines “used to sniff model-car glue, gasoline, [and] smoke some

dope[.]” (Id. at PID 4873–74.) Smith testified that Hines “seemed like he would get pretty

comatose. Go back there and talk to him, and he wouldn’t even know you was there.” (Id. at PID

4875.) Smith recalled that Hines had his own apartment at about fifteen years old and that he never

saw any of Hines’s family there.




                                                -38-
No. 15-5384, Hines v. Mays


        Finally, trial counsel presented the testimony of sociologist Ann Marie Charvat, Ph.D. Dr.

Charvat testified that she interviewed Hines’s family, individuals from his neighborhood, and

individuals who worked with him as a child. She also reviewed a variety of records and obtained

“as many different kinds of reports as were available.” (R. 173-11, PID 4925.) Dr. Charvat used

the information to “set up a life-cycle study where I was able to get substantiation on various

elements of his report.” (Id.) To be included in her report, Dr. Charvat “had to hear [the

information] not only from [Hines], but also from another person, or read it in one of his

documents, or it had to be consistent with what we already know about these different elements.”

(Id.)

        Dr. Charvat explained how she collected data:

        Originally, what I started with was a social history. That’s what came from him.
        Then I developed four criteria, four possible substantiations. If I could get a
        substantiation from conversation or interview with a primary relationship or with a
        secondary relationship or with an historical document or with my scholarly
        research, the literature in my field, if I got two of those, then I included it in the
        life-history section.

(Id. at PID 4927.) Primary relationships were defined as “your family or your friends,” and, for

Hines, included interviews with Bill Hines, Barbara Hines, Hines’s sister Victoria, and Hines’s

brother, Bobby Joe. (Id.) Dr. Charvat also interviewed some of Hines’s friends, as well as

individuals who had a secondary relationship with Hines, such as his juvenile probation officer,

his counselor, and a local policeman.

        Dr. Charvat had access to a third category of information, historical documents, including:

educational records from elementary school, junior high, and high school; medical records; and

prison records.    She reviewed additional records, such as “social histories, psychological

evaluations, physical exam[s], medical history, FBI record of charges and dispositions,

[a] psychological evaluation, a mitigation evaluation prepared by Capital Case Resource Center,

                                                -39-
No. 15-5384, Hines v. Mays


correspondence from [defense counsel], and the testimony of [Hines’s grandfather] John Croft.”

(Id. at PID 4929.) Dr. Charvat testified that Green River Boys Ranch sent no records, but she

talked to Mr. Courtney, who was Hines’s counselor there. Dr. Charvat also reviewed the research

and literature published in her field.

       Dr. Charvat testified that Hines lived outside of Bowling Green for the first twelve years

of his life—the first two years with his mother and her husband, Billy Frank Dugard, who had an

“unstable” and “violent” marriage, and the next ten years with his mother and her second husband,

Bill. (Id. at PID 4931–32.) Barbara and Bill, a farmer, lived on a rented farm with Hines’s two

sisters and brother. The family was “socially isolated” and did not participate in any community

activities such as attending church. (Id. at PID 4932.) The parents were “very hardworking

people,” but “there was not very much supervision on the kids” and “an absence of rules within

the family[.]” (Id. at PID 4933, 4935.) Dr. Charvat also testified that she found “evidence of

violence” that she would categorize as “very serious abuse,” and that “there were situations in this

family that I found to be beyond and into the criminal violent category on Darrell and his older”

sibling. (Id. at PID 4933.) Dr. Charvat testified that she suspected sexual “irregularities”:

       Another issue about the family was I did not find sexual abuse—I did not—
       although, I did find that there were irregularities from sexual norms. And because
       the family was very self contained, there was no evidence whatsoever that [Hines]
       was sexually molested; however, there is—It’s a very difficult topic to get
       information about, even in anonymous situations on the telephone.

(Id. at PID 4934.)

       Addressing his education, Dr. Charvat described Hines as “slow” and explained that he

was passed to the next grade “because he was not too much of a problem and because it was,

simply, time to move him.” (Id. at PID 4938.) Dr. Charvat testified that Hines’s “formal education

ended in the sixth grade,” but added that he attended one school for the first six grades, and


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No. 15-5384, Hines v. Mays


attended several different schools until ninth grade, which he repeated once, without evidence “of

any kind of successful completion” of any of these grades. (Id. at PID 4938–39.) For a two-year

period beginning when Hines was twelve years old, the family moved between Bowling Green

and the farm, ultimately settling in a dangerous neighborhood in Bowling Green, which required

Hines to learn social skills for the new environment.

       Dr. Charvat testified that Hines started “getting into trouble” at fifteen years old, taking

“a variety of drugs at this point in time, some of them glue, some of them gasoline,” and

“dropp[ing] out of school, basically without any objections from anybody, as far as I could

determine.” (Id. at PID 4941.) Around that time, Hines “moved out of the family unit” and “at

various points, he would go back; but, essentially, he either had an apartment, sometimes stayed

with his family, or stayed with other people in the neighborhood.” (Id. at PID 4941–42.) Dr.

Charvat explained that the separation constituted “a significant, serious breach of a [familial] bond

at that point in time.” (Id. at PID 4942.) Hines had several experiences with juvenile court, which

often resulted in warnings and probation; on one occasion, he was ordered to see a psychiatrist,

and did so a couple times, but declined additional visits and no one made him return. Various

reports noted that Hines possessed “an inability or an unwillingness to cooperate, and [that] no

successful treatment has ever been noted.” (Id. at PID 4948.)

       Dr. Charvat testified that Hines was sent to Green River Boys Ranch at seventeen years

old. Hines was subjected to intensive group therapy there, referred to as “grouping,” in which “the

bad behavior of one person in that group will lose the privileges for everybody in it.” (Id. at PID

4946.) Dr. Charvat testified about what she had heard regarding practices at Green River:

       [T]hey would get boys on the ground and shout at them in their faces; that at various
       points, it would be physical, with all the guys in this group losing their privilege
       because of the bad behavior of this one guy participating in the grouping of another
       guy.

                                                -41-
No. 15-5384, Hines v. Mays



       Now, [Hines] described a situation to me in which he and another guy were getting
       grouped. And one of the things that occurred in this grouping was that somehow
       this thing moved out to where the sewage w[as], and there was pushing into the
       sewage as a result of this grouping to try to get about this behavior.

(Id. at PID 4946–47.) Dr. Charvat testified that these childhood experiences “would increase . . .

the unlikelihood of [Hines] being able to learn the rules of the social order.” (Id. at PID 4949–50.)

       Finally, Dr. Charvat identified several factors in Hines’s past that literature has found can

lead to criminal behavior:

       In [Hines]’s specific case, these included: the level of physical abuse was too great,
       there was neglect of the children, there was social isolation of the family, there was
       evidence that there was uninformed parenting, irregular sexual norms, excessive
       adult responsibility, poor performance, achievement testing was significantly
       below grade level, excessive truancy, early onset of delinquency, early onset of
       drug use, self-abusive tendencies, lack of adult supervision, ineffective
       involvement with the juvenile justice system—it didn’t work—terminated
       education, he had violent police models, his incarceration, his treatment at Green
       River. Basically, if I were working on predicting delinquency, each and every one
       of these would be found to be important contributors.

(Id. at PID 4958–59.) She considered prison to be an intervening factor because “the possibility

is great that in th[at] environment, [Hines] can bond, and that he has the opportunity to develop

these elements of a bond in that environment, in an environment where he understands the rules.”

(Id. at PID 4968.)

       Hines argues that the evidence presented on state post-conviction review demonstrates that

trial counsel’s presentation of mitigation evidence at the resentencing hearing constituted

ineffective assistance. He also argues that we should consider mitigation evidence presented for

the first time in his habeas proceeding in district court, citing Martinez. Because this claim was

adjudicated on the merits in state court, we cannot consider any evidence offered for the first time

in federal district court. See Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“We now hold that

review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated

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No. 15-5384, Hines v. Mays


the claim on the merits.”). And Hines’s reliance on Martinez is unavailing because the IATC claim

was adjudicated on the merits in state court, rather than found to be defaulted. Martinez, 566 U.S.

at 9 (“The precise question here is whether ineffective assistance in an initial-review collateral

proceeding on a claim of ineffective assistance at trial may provide cause for a procedural default

in a federal habeas proceeding.”).

       Hines has not demonstrated trial-counsel ineffectiveness related to the presentation of

evidence concerning his use of alcohol and drugs because Croft, Collins, and Smith each offered

testimony on that subject. Additionally, Dr. Auble testified about Hines’s head injuries and that,

after conducting neurological testing for brain damage, she found the tests inconclusive.

Dr. Charvat also talked about Hines’s substance abuse, as well as his difficult experience in the

Green River Boys Home. The additional evidence presented during the state post-conviction

proceedings concerning these topics was cumulative, and therefore Hines cannot show any

prejudice resulted from trial counsel’s failure to present this evidence at his resentencing. See Hill

v. Mitchell, 842 F.3d 910, 943–44 (6th Cir. 2016), cert. denied, 138 S. Ct. 82 (2017) (“A petitioner

does not establish prejudice if he shows only that his counsel failed to present ‘cumulative’

mitigation evidence”); Fautenberry v. Mitchell, 515 F.3d 614, 626–27 (6th Cir. 2008).

       As to trial counsel’s alleged ineffectiveness concerning the presentation of evidence about

sexual and physical abuse, William D. Kenner, M.D., a psychiatrist, testified during the initial

post-conviction proceedings that he learned from Hines’s older sibling, Lee, that Hines was

sexually abused by his stepfather and uncle. Dr. Kenner acknowledged that he did not have a first-

person account of the events, as all of his information came from Lee, while Hines did not discuss

the events—nor did Dr. Kenner know if Hines even remembered them. Dr. Kenner stated that




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No. 15-5384, Hines v. Mays


“it’s not uncommon for even adults to, you know, have a blank spot in their memory when

something traumatic like that happens.” (R. 174-2, PID 5291.)

       Hines’s difficulty with sexuality, as well as the possibility that he was sexually abused, was

discussed at the resentencing hearing. But, unlike Dr. Kenner, Dr. Charvat was unable to contact

Lee for unknown reasons and instead only spoke with Hines’s other siblings. Because Lee was

the only source of that information and did not testify, there is a question whether the court would

have found the evidence admissible, as the trial court only permitted Dr. Charvat to base her

opinion on “reliable hearsay,” to the extent she relied on hearsay. (R. 173-10, PID 4920.) At any

rate, although additional evidence of sexual and physical abuse might have made the mitigation

case stronger, the new evidence does not differ from the information presented at the 1989 penalty

phase in such a substantial manner to entitle Hines to relief. See Tibbetts v. Bradshaw, 633 F.3d

436, 444–45 (6th Cir. 2011) (explaining that new mitigation evidence that covers the same subject

as evidence presented during the penalty phase of trial, but in greater detail, is insufficient to

demonstrate prejudice).

       Hines also takes exception to Dr. Auble’s testimony, as she did not tell the sentencing jury

that Hines suffered from post-traumatic stress disorder, nor that he had brain damage. But Hines

was not prejudiced simply because trial counsel failed to retain “some other hypothetical expert.”

Smith v. Mitchell, 348 F.3d 177, 208–09 (6th Cir. 2003). Furthermore, “[a]bsent a showing that

trial counsel reasonably believed that [Dr. Auble] was somehow incompetent or that additional

testing should have occurred, simply introducing the contrary opinion of another mental health

expert during habeas review is not sufficient to demonstrate the ineffectiveness of trial counsel.”

McGuire v. Warden, 738 F.3d 741, 758 (6th Cir. 2013) (citing Black v. Bell, 664 F.3d 81, 104–05

(6th Cir. 2011)). Hines makes no such showing.



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No. 15-5384, Hines v. Mays


       Finally, Hines argues that trial counsel were ineffective for failing to tell the jury that Hines

lacks a sufficient quantity of serotonin, “which makes it difficult for him to modulate and control

his behavior.” (Hines Br. at 34.) The Tennessee Court of Criminal Appeals denied this claim,

explaining:

       [Paul] Rossby[, Ph.D., a molecular biologist,] acknowledged that he did not work
       on developing this issue in a criminal case until approximately 1992, three years
       after the petitioner’s resentencing trial. Further, he said that he did not actually
       testify on the issue of serotonin until 1999, ten years after the petitioner’s
       resentencing trial, and knew of no one who had testified on the issue prior to that.
       As the post-conviction court stated: “Petitioner’s counsel at re-sentencing could
       not reasonably have been expected to search for experts on a subject which they
       did not know existed.” The record supports this conclusion.

Hines, 2004 WL 112876, at *32. The district court denied this claim without analysis.

       At the initial post-conviction hearing, Dr. Rossby testified that molecular neurobiology

involves “the study of the brain and the central nervous system at the level of molecules and

systems.” (R. 176-5, PID 6478.) He explained serotonin’s effect on the brain:

       Serotonin is a naturally occurring neuromodulator in the brain. It comes under the
       broad heading of neurotransmitters but it is a neuromodulator. Serotonin is
       essentially produced in one very small region of the brain and then projected to
       every part of the brain. Projected meaning that it is, it is synthesized in one place
       and then it [is] sent to all parts of the brain. Serotonin essentially has an inhibitory
       effect on the neuronal firing that I was describing before. Serotonin blocks pain for
       example. Serotonin is released in tons [sic] of great stress and it opposes the
       stressful reaction or the fight[ or] flight reaction. Serotonin appears and there has
       been a tremendous amount of research on the function of serotonin. Serotonin
       appears to orchestrate various systems of inhibition within the brain. And there is
       a tremendous amount of data that indicate that serotonin orchestrates these systems
       of inhibition within the brain.

(Id. at PID 6483–84.) He further explained that “[t]he level of serotonin activity in the brain has

been associated with impulsive behavior.” (Id. at PID 6486.) He testified that serotonin research

dated “for sure back to the 70’s,” adding that “a great deal of information” would have been

available in 1986 and 1989. (Id. at PID 6484.)


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No. 15-5384, Hines v. Mays


       Dr. Rossby assessed Hines’s serotonin level and concluded that it “is at the extreme[ly]

low level in our society” and the effects of that low serotonin are “exacerbated by his Type II

alcoholism[.]” (Id. at PID 6490.) Dr. Rossby offered the following insight:

       Essentially all of the studies that . . . have accumulated over the past twenty to
       twenty-five years, the low serotonin has been the central feature that distinguishes
       the impulsively violent offender from the non-impulsively violent offender. But
       there has also been a very strong correlation with Type II alcoholism and so, based
       on everything that I know and everything that I have read about the case and based
       on this analysis of his serotonin levels in his cerebral spinal fluid I would say that
       he is virtually, for biological reasons, he is virtually incapable of opposing his, his
       behavior, his spontaneous behavior. He is organically impaired.

(Id. at PID 6490–91.) Dr. Rossby added that “if you have low serotonin levels you have low

serotonin levels for life.” (Id. at PID 6492.)

       Dr. Rossby testified that Hines’s alcoholism is significant because, in a research study,

“Type II alcoholism was detected in almost all of the violent offenders who had also low serotonin

levels.” (Id. at PID 6493.) Dr. Rossby described an individual who is a Type II alcoholic as having

“low harm avoidance, gets bored easily and needs a lot of stimulation and is always out seeking

alcohol.” (Id. at PID 6494–95.) Dr. Rossby explained that serotonin, in conjunction with Type II

alcoholism, affects impulse control:

       We are talking about an organic capacity to limit, to regulate or to control impulse
       and it doesn’t determine what the impulse may be it just, we are talking about a
       failure of inhibitory systems and the systems are really designed to inhibit any kind
       of impulsive behavior, instinctual compulsive behavior.

(Id. at PID 6495–96.) When asked whether Hines could control impulsive rage or anger, Dr.

Rossby responded: “No, I don’t think so.” (Id. at PID 6503.)

       On cross-examination, Dr. Rossby testified that he first contributed serotonin research to a

criminal case in 1992 and first testified as an expert on the subject in a criminal case in 1999. Dr.

Rossby was not personally aware of anyone testifying about this topic before 1992.


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No. 15-5384, Hines v. Mays


       Hines has not shown that trial counsel performed deficiently by failing to present evidence

that he has low serotonin. In anticipation of the 1989 sentencing hearing, trial counsel retained a

mental-health expert, Dr. Auble, who conducted a psychological examination that included testing

for brain damage. She testified about the difficulty Hines had controlling his behavior when

provoked. As noted previously, trial counsel is not ineffective for failing to retain a specific

mental-health expert to obtain a specific outcome. McGuire, 738 F.3d at 758. Further, Dr. Rossby

stated he was not aware of the use of the low-serotonin argument in a criminal case at the time of

the resentencing hearing. Hines’s counsel at resentencing were therefore not ineffective for failing

to put forward mitigation theories that it was reasonable for them to be unaware of.

       B. Failure to cross-examine Dr. Harlan’s testimony

       Hines next contends that trial counsel were ineffective because they did not effectively

challenge Dr. Harlan’s testimony about how long Jenkins would have remained conscious and

would have survived following the infliction of her injuries. The warden responds that the state

court’s resolution of this claim was not unreasonable.

       At resentencing, the prosecution relied on the aggravating factor that the offense was

“heinous, atrocious, or cruel in that it involved torture or depravity of mind,” Tenn. Code Ann.

§39-2-203(i)(5)(1982), relying on Dr. Harlan’s testimony that the victim was conscious for three

to four minutes after being stabbed, during which she tried to fight off her attacker.

       Dr. Harlan testified about the time elapsed between infliction of the wounds and the

resulting death:

       The fact that there’s hemorrhage from all three of these wounds indicate[s] that they
       occurred at approximately the same time. The amount of hemorrhage or bleeding
       from these wounds wou[l]d indicate that death occurred within a short period of
       time after the time of the infliction of these wounds, probably within a few minutes;
       most likely, within a span of probably four to five minutes, maybe six minutes.



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No. 15-5384, Hines v. Mays


(R. 173-9, PID 4721.) Dr. Harlan further testified that Jenkins “would have remained conscious

for a period of time, several minutes, probably three to four minutes.” (Id. at PID 4732.) Dr.

Harlan clarified on cross-examination:

       Q:      And I believe you stated that after receiving those wounds, the victim
               would have died within about four to five minutes?
       A:      Yes, sir, that is correct.
       Q:      And you indicated that consciousness would have lasted somewhere
               between, I think you said, three and four minutes?
       A:      Yes, sir, that is correct.
       Q:      All right. Now that’s something that you can’t absolutely find; that’s your
               opinion based upon the appearance of the wounds, right?
       A:      That is my opinion based upon the type of wounds that were present, upon
               the lack of damage to the central nervous system, and on the fact that the
               wounds all occurred at approximately the same time.

(Id. at PID 4736–37.)
       On state post-conviction review, Dr. Sperry opined that the period between the infliction

of Jenkins’s injuries and her death was shorter than Dr. Harlan had stated:

       In my opinion, all of the injuries except for the vaginal stab wound were sustained
       very very rapidly. That, from the time of the attack had [en]sued to when she . . .
       collapsed and was receding into unconsciousness because of internal bleeding was
       [happening] very rapidly. Again, less than a minute and probably less than thirty
       second[s] realistically.

(R. 176-5, PID 6544.) Dr. Sperry testified that Jenkins “would be unconscious[] in between fifteen

and thirty seconds and then would be dead, that is her heart stopped beating, in about three to four

minutes.” (Id. at PID 6545.) Dr. Sperry explained that he disagreed with Dr. Harlan’s assessment

because of the injuries Jenkins suffered:

       Not with two stab wounds involving the heart like this. That is not possible. People
       collapse very rapidly. And, in fact, . . . there is no evidence that there is any blood
       elsewhere other than again right beneath this air conditioner thing, on the inside of
       the door and then over where her body ultimately was found which is an indicator
       from the scene alone that she collapsed very rapidly and lost consciousness very
       rapidly. But irrespective of that, it is just not physically possibl[e] for someone to
       sustain wounds like this and stay conscious for four minutes. They will be dead by
       that time and have lost consciousness long before that.

                                                -48-
No. 15-5384, Hines v. Mays



(Id. at PID 6546.) When asked whether Jenkins would have sensation following unconsciousness,

Dr. Sperry testified: “No. Once she was unconscious[] this would be the same as if she were

under anesthesia. That is, she would not be able to feel or perceive pain in any way.” (Id. at PID

6546–47.) On cross-examination, Dr. Sperry allowed that the “outer limits of [his] time envelope,”

from the start of the attack to Jenkins’s loss of consciousness, would be “a minute and a half,”

which he conceded “could be a long time.” (R. 176-6, PID 6572.)

        Dr. Harlan testified during the post-conviction proceedings, expressly disagreeing with Dr.

Sperry’s assessment and reiterating his prior opinion. Dr. Harlan specifically addressed the

conflict between the two opinions:

        The—the problem that you have with the statements that he made is that he made—
        by he, I’m talking about Dr. Sperry—is that his statements are to the effect that the
        heart just stops beating immediately. Well, if the heart stops beating immediately,
        then you don’t get the blood out there. If the blood, as we know is out there, because
        we can see it, then the heart has to have continued to beat. And the heart beating
        will allow blood to continue to flow to the brain in gradually reducing quantities.

(R. 174-4, PID 5580.) Dr. Harlan also explained that it is possible to perceive pain while

unconscious:    “To a certain extent, by anecdotal evidence.         There are different levels of

consciousness and unconsciousness. It is possible to be aware of your surroundings and what’s

going on without being able to move and without being able to respond.” (Id. at PID 5583.) Dr.

Harlan testified that Jenkins would have experienced pain if the vaginal wound was inflicted while

she was conscious, but her state of consciousness could not be determined without being present

at the time.

        On state post-conviction review, the trial court found that trial counsel were deficient for

failing to challenge Dr. Harlan’s testimony. The court concluded, however, that there was no

prejudice because the jury would have found that the offense was “depraved,” even if forensic


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No. 15-5384, Hines v. Mays


proof established that the offense was not torturous, as the prosecution maintained. Hines, 2004

WL 112876, at *33 (discussing district court decision). The state trial court relied on State v.

Williams, 690 S.W.2d 517, 529–30 (Tenn. 1985), which held that “depravity of mind” “may be

inferred from acts committed at or shortly after the time of death.” Hines, 2004 WL 112876, at

*33 (citing Williams). The Tennessee Court of Criminal Appeals referred to portions of the trial

court’s opinion and affirmed the decision. Id. at *32–33. On habeas review, the district court

determined that the Tennessee Court of Criminal Appeals’ decision was not an unreasonable

application of Supreme Court precedent.

       Hines is required to show prejudice—a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Strickland, 466

U.S. at 694. Both Dr. Sperry and Dr. Harlan agreed that the wound to the victim’s vaginal cavity

occurred at, or shortly after, the time of death. Regardless whether the victim was unconscious,

dying, or had just died, the infliction of such a wound may evince a “depravity of mind.” See State

v. Zagorski, 701 S.W.2d 808, 814 (Tenn. 1985) (“infliction of gratuitous violence” on a victim

who was “already helpless from fatal wounds” indicates “a depraved state of mind at the time of

the killing” and is sufficient to support a finding by the jury that the murder was especially heinous,

atrocious and cruel); Van Tran v. Colson, 764 F.3d 594, 622 (6th Cir. 2014) (under Tennessee law,

“‘depravity of mind’ can be found even where there is no gratuitous infliction of severe pain,

physical or mental, that amounts to torture” (citation omitted)). In Williams, the Tennessee

Supreme Court explained:

       If acts occurring after the death of the victim are relied upon to show depravity of
       mind of the murderer, such acts must be shown to have occurred so close to the
       time of the victim’s death, and must have been of such a nature, that the inference
       can be fairly drawn that the depraved state of mind of the murderer existed at the
       time the fatal blows were inflicted upon the victim. This is true because it is “the



                                                 -50-
No. 15-5384, Hines v. Mays


       murderer’s state of mind at the time of the killing” which must be shown to have
       been depraved.

690 S.W.2d. at 529–530 (emphasis omitted).             Thus, testimony that the victim was likely

unconscious when she was stabbed in the vaginal cavity would not have prevented the jury from

making a finding of depravity of mind. The state court was not unreasonable in concluding that

even if the vaginal cavity stabbing “occurred close in time to the victim’s death,” rather than before

it, the vaginal stabbing “allow[s] the drawing of an inference of the depraved state of mind of the

murderer at the time the fatal blows were inflicted on the victim.” Hines, 919 S.W.2d at 581.

       Finally, Hines argues that the state appellate court’s holding that Dr. Harlan’s testimony

could have shown depravity to support the heinous, atrocious, and cruel aggravating circumstance

was contrary to Supreme Court precedent because “a finding of ‘depravity’ [is] unconstitutional[ly

vague].” (Hines Br. at 94–95.) We have previously held otherwise. See, e.g., Van Tran, 764 F.3d

at 622–23 (holding that Tennessee’s “depravity of the mind” aggravator “avoids a constitutional

vagueness problem”); Strouth v. Colson, 680 F.3d 596, 606 (6th Cir. 2012) (same). Hines’s

argument thus fails.

       C. Failure to object to death sentence in light of prosecutor’s agreement to life sentence

       Hines contends that trial counsel were ineffective for failing to object to his death sentence

because the prosecutor had agreed to a sentence of life imprisonment. The warden argues that this

claim is procedurally defaulted because it was not presented to the state courts and that Hines

cannot show cause and prejudice to excuse the default.

       On direct appeal after his resentencing, Hines argued that the trial court erred in rejecting

the plea agreement between the parties, in which Hines would have pleaded guilty to a new offense

and received a life sentence. Relying on Tennessee Rule of Criminal Procedure 11, the Tennessee

Supreme Court denied relief:

                                                -51-
No. 15-5384, Hines v. Mays


        In this case, the trial judge felt that the facts of the case, even when mitigating
        circumstances were considered, should be decided by a jury. He expressed the view
        that the interest of justice did not allow a plea bargain and he rejected it. We find
        that the trial judge acted within his authority under Rule 11 in rejecting the plea
        bargain.

Hines, 919 S.W.2d at 578.         Now Hines argues that to carry out his sentence under the

circumstances would be arbitrary or capricious in violation of the Eighth Amendment and would

violate the Fourteenth Amendment because: “Having agreed to a life sentence for Hines’s murder

conviction, the state proved empirically that it has no ‘compelling interest’ whatsoever in taking

Hines’s life. It proved by this agreement that a life sentence constitutes the ‘least restrictive means’

of achieving whatever interests it may have in punishing Hines.” (Hines Br. at 99–103.)

        Hines is not entitled to relief. “Counsel is not ineffective merely for failing to obtain a

desired ruling from the court.” Hodge v. Haeberlin, 579 F.3d 627, 645 (6th Cir. 2009). Here, the

trial court rejected the plea agreement, which the Tennessee Supreme Court determined to be

proper. Hines has not shown that an objection by trial counsel had any probability of producing a

different result. See Mapes v. Coyle, 171 F.3d 408, 427 (6th Cir. 1999) (“Counsel could not be

constitutionally ineffective for failing to raise . . . meritless arguments.”). Regarding his Eighth

Amendment claim, Hines relies on Adamson v. Ricketts, 865 F.2d 1011 (9th Cir. 1988), but that

case is distinguishable. In Adamson, the trial court accepted a plea after considering “the

presentence report, the matters in the file, the preliminary hearing transcript, the plea agreement,

and the proceedings at the previous hearing.” 865 F.2d at 1021. Thus, as the Ninth Circuit

reasoned, the trial court’s acceptance of the plea agreement constituted a judicial determination

that the plea was the appropriate punishment and reflected the trial court’s belief that the defendant

would be appropriately punished by a prison sentence rather than death. Id. at 1021–22. But when

the trial court later imposed a death sentence on the same information and “for the same conduct


                                                 -52-
No. 15-5384, Hines v. Mays


for which he had previously found a prison term ‘appropriate,’” the Ninth Circuit found the

imposition of the death penalty arbitrary. Id. at 1022–23. Here, the trial court did not make a

judicial determination as to the appropriate punishment; rather, as the Tennessee Supreme Court

explained, “[t]he trial judge rejected the plea bargain agreement because he felt that the case should

be decided by a jury.” Hines, 919 S.W.2d at 577–78. Trial counsel was thus not ineffective for

failing to object to the trial court’s rejection of the plea agreement. Hines has not cited any directly

applicable cases in support of his Fourteenth Amendment claim, and we therefore find it is also

without merit.

V.      Whether trial counsel were ineffective for failing to investigate and present evidence
        regarding Ken Jones.

        Having rejected each of Hines’s claims thus far, we now turn to the claim on which we

reverse the district court’s denial of Hines’s petition for a writ of habeas corpus. During the guilt

phase, trial counsel failed to investigate or effectively examine Ken Jones, who was at the motel

at the time of Jenkins’s death and had an apparent motive for the murder. During the penalty

phase, defense counsel also failed to present evidence of residual doubt in relation to Ken Jones.

Because the state court’s decision that this did not constitute ineffective assistance of counsel was

an unreasonable application of Strickland, we reverse the district court’s denial of Hines’s petition

for a writ of habeas corpus.

     A. Failure to investigate and present evidence regarding Jones at the guilt phase

        Ken Jones was the witness at Hines’s 1986 trial who testified to having first discovered

Jenkins’s body. Hines argues that trial counsel were ineffective because they did not investigate

and present evidence explaining Ken Jones’s presence at the CeBon Motel at the time of the

murder. The Tennessee Court of Criminal Appeals affirmed the state trial court’s rejection of this




                                                 -53-
No. 15-5384, Hines v. Mays


argument on post-conviction review, finding that Hines could not satisfy Strickland’s prejudice

requirement:

       Missing in the petitioner’s theory, which the post-conviction court described as
       “farfetched,” is any motive or reason why Jones would want to kill the victim,
       except the petitioner’s suggestion, recounted in the post-conviction findings, that
       the victim was killed because she had “thwarted” the sexual liaison between Jones
       and [Vernedith] White. In effect, the petitioner argues that fifty-one-year-old Ken
       Jones, accompanied by his twenty-one-year-old girlfriend, Vernedith White,
       following their normal Sunday morning routine and checking into the same motel
       where they had been together approximately 100 times before and were known by
       the staff, including the victim, stabbed the victim to death, with Jones driving White
       to another location, cleaning blood from himself and his vehicle, and then returning
       to the scene to report the crime and wait for law enforcement officers to arrive. We
       agree with the post-conviction court that, given the strength of proof against the
       petitioner, making the argument that Ken Jones was the actual killer would have
       been “farfetched” and could have resulted in a loss of credibility for the defense.

Hines, 2004 WL 1567120, at *27.

       The district court rejected this claim on habeas review:

       Petitioner has not presented any evidence to suggest that Jones could have been the
       murderer. Jones’s motivation for being at the motel was undisputed. Given the
       State’s proof and Petitioner’s statement to the officers, the Court concludes that
       there is not any basis to suggest any other identifiable person as the perpetrator of
       this horrendous crime. The Court also concludes that Petitioner has not
       demonstrated any prejudice for this claim. Given the state courts’ finding of the
       absence of prejudice required by Strickland, the Court concludes that this claim was
       reasonably decided by the state courts applying clearly established federal law.

(R. 145, PID 2352.)

       The following evidence was presented regarding Ken Jones at Hines’s 1986 guilt trial.

Mary Sizemore of the Cheatham County Ambulance Service testified that she received a call at

2:36 p.m. from a woman named Maxine to go to the CeBon Motel because a man reported that a

woman had been stabbed. According to Sizemore, Maxine worked at the CeBon Restaurant, which

was across the street from the motel. Sizemore testified that Maxine indicated the man who

discovered the body “was a man coming to rent a room there and was looking for the maid to make


                                               -54-
No. 15-5384, Hines v. Mays


arrangements,” but Sizemore did not know who the man was. (R. 173-2, PID 3899.) Sizemore

arrived at the motel four minutes after the call, and Maxine then walked to the motel and met

Sizemore. Sizemore found Jenkins on the floor of Room 21 “laying on her back wrapped in a

bedspread.” (Id. at PID 3890.) Sizemore “unwrapped the top of the bedspread to look at her chest

to see where the blood was coming from and noticed the stab wounds.” (Id. at PID 3891.)

Sizemore testified that she saw Jenkins’s underwear—torn into two pieces—in the room.

       Ken Jones testified at trial that he stopped at the CeBon Motel on March 3, 1985, and was

“acquainted” with the “older couple” who had run the motel. (Id. at PID 3941–42.) Jones “first

pulled [in] around about 12:30 or possibly a few minutes past” and “stopped [for] a few minutes.”

(Id. at PID 3942.) Jones parked his car and walked to the motel’s office. “[T]here was no one in

the office,” but Jones noticed a “key laying in [a] little box.” (Id. at 3949.) Jones testified that he

then went back to his car, at which time he saw a woman in a maroon car, accompanied by a child,

drive up to Room 21 around 12:40. The woman got out of her car, knocked on the door of Room

21, and left when no one answered. Jones added that before leaving, the woman backed around

and asked him if he “knew where the people were that run it.” (Id. at PID 3957.) Jones said that

he then left, going “up to [a roadside convenience store] for a few minutes” before coming back

to the motel. (Id. at PID 3942.)

       He came back “just past 1:00.” (Id. at PID 3943.) He explained that when he returned to

the motel, he “just sat there a few minutes” in his car and then realized that he had to use the

bathroom and remembered the key that he had seen in the office. (Id. at PID 3953.) Jones

explained that he “went to the office and there was no one there . . . so when no one showed up in

a few minutes I took the key and left a note that I had the key that I was going to the restroom in




                                                 -55-
No. 15-5384, Hines v. Mays


that particular room.” (Id. at PID 3943.) Jones testified that he went to the room at “probably

about twenty after 1:00, in that neighborhood.” (Id.)

        Jones opened the door to the locked motel room, Room 21, using the key he had taken. He

testified that he “saw a vacuum cleaner on the left, and I proceeded to go toward the bathroom,

and I saw hair, a head of hair sticking out from behind the bed.” (Id. at PID 3944.) When asked

whether he recognized the individual as female or male, Jones responded: “No sir. Not then.”

(Id. at PID 3945.) When asked how close he was to the body, Jones testified that he was “heading

for the restroom and was three feet, two-and-a-half to three feet I guess[.]” (Id.) When asked to

describe his reaction, Jones answered: “Lord, I don’t know. All I knowed [sic] to do is get out

and call somebody.” (Id.) Jones said, “I wasn’t in that room but a second.” (Id. at PID 3947.)

Jones testified that he left the motel room, got into his car, and went straight to the restaurant across

the street to call the sheriff. He observed a dark blue car parked near the motel’s Room 8. He

testified that a woman at the restaurant placed the call for him to the sheriff. When Jones was

asked if he “stay[ed] there and talk[ed] to the sheriff,” Jones replied, “Yes sir.” (Id. at PID 3948.)

Jones testified that he knew Sheriff Weakley, and on that afternoon he told the sheriff what he had

seen.

        At closing argument of the guilt phase, Hines’s trial counsel emphasized the significance

of Jones’s testimony, notwithstanding his failure to meaningfully cross-examine Jones:

        Now, this gets me. This confuses me. This causes me considerable reasonable
        doubt right here. We’ve got this Mr. Jones, Kenneth Jones. We already had one
        girl that said Mrs. Jenkins[’s] car pulled out at 12:40. I don’t know what time Mr.
        Jones was fooling around at that motel that Sunday afternoon or that Sunday
        morning. Or what he was really up to. But you can kind of gather from his
        testimony, kind of reading between the lines, he wasn’t a traveling salesman just
        coming through; he had a usual spot where he always went to; he was meeting
        somebody. He said he got there around—what did he say—12:00 o’clock?
        Something like that? He saw a maroon car pull right up to Room 21 and a woman
        get out and bang on the door, a baby crying. A blue car parked right in front of #9

                                                  -56-
No. 15-5384, Hines v. Mays


       at that time. Was there anything about a silver car being there? I wonder if whoever
       he was meeting had a husband? I wonder if whoever he was meeting might have
       thought Mrs. Jenkins was this man’s girlfriend in Room 21. Maybe somebody hired
       somebody to go down there and do something. I don’t know. It causes me some
       concern though I’ll tell you that; it causes me a lot of concern.

(R. 173-6, PID 4394–95.) Trial counsel continued:

       And I’ll tell you something else that causes me some concern. Here we are, there’s
       a murder that’s been commit[t]ed, and you got this man, you saw how nervous Mr.
       Jones was, boy he was quivering, he was wanting to get in here and out. You saw
       that. Why didn’t he tell Sheriff Weakley—and I feel sorry for Sheriff Weakley on
       this—why didn’t he tell Sheriff Weakley, look, Sheriff Weakley, I saw a blue car
       right beside #9 and I saw a maroon car and I saw a woman get out and knock on
       Room 21. And wasn’t it a casual relationship just going up and taking Room 21
       key out and going up there and him just barging into Room 21. There was a lot of
       something going on up there that day.

(Id. at PID 4395.)

       On post-conviction review, Hines presented the testimony of one of his trial counsel,

William G. Wilkinson, who stated that he did not attempt to interview Jones before trial.

Wilkinson testified about a conversation he had with Sheriff Weakley concerning Jones:

       Sheriff Weakl[e]y told me that [Jones] was the person who opened the door and
       discovered the body. He told me that he was married and that he was meeting there
       for the purpose of having an affair and had been there just a very short period of
       time and that he didn’t want his wife to find out that he was carrying on the affair
       and that all he knew was that he was assigned that room, opened the door and saw
       the body and that is all that he knew about it.

(R. 176-3, PID 6195.)

       Hines’s other trial counsel, Steve Stack, also admitted that Jones was not interviewed, and

explained:

       We never interviewed Mr. Jones. We were told early on in the case by, I was told
       by Sheriff Weakley that Mr. Jones had been over to the motel that day to have a
       meeting with a lady friend and that he didn’t, all that he did was go in and discover
       the room and that he was there for a brief period of time and he had no further
       information and he didn’t want him to be embarrassed by having it brought out that
       he had been over there to meet with a lady friend.


                                               -57-
No. 15-5384, Hines v. Mays


(R. 176-4, PID 6404.) Stack acknowledged that, though Jones found Jenkins’s body, they made

no effort to investigate Jones’s reasons for being at the motel; nor did counsel make any attempt

to find out who Jones’s female companion was, despite the fact that she might have also been a

witness to the scene. When asked whether he attempted to learn what Jones would say in his

testimony, Stack responded:

       I remember being told by [Assistant Attorney] General Kirby who just gave a brief
       synopsis saying that Ken Jones will be testifying because he was the one, the person
       that found the body. Sheriff Weakley, like I said, talked to me more in detail
       explaining there that he was just there a few minutes. [H]e went up, opened the
       door, made the discovery and then left. I don’t recall that he even described him
       going into the room or anything. Quite frankly, Sheriff Weakley’s main concern
       was just that we didn’t make an issue of him being there to protect him from his
       wife.

(Id. at PID 6407–08.) Stack explained that his trust in Sheriff Weakley informed that decision:

       And the Sheriff had asked me not to bring out what [Jones] was [at the motel] for.
       The Sheriff made it clear to me that Ken Jones had nothing to do with this case. If
       Do[r]ris Weakley had told me right now that it was going to rain so hard this
       afternoon that I will need a boat to get home I would be buying a boat right now. I
       mean, I would take that man’s word for anything in the world. He say’s [sic] this
       hadn’t got a dog in the hunt, don’t embarrass the man. I wasn’t going to embarrass
       the man.

(R. 176-5, PID 6415.) Stack acknowledged, however, that “it was ridiculous for us not to have

gone to interview [Jones] to at least hear his version of what happened so that we could confirm

for ourselves, you know, what we could legitimately ask him that might help our case.” (Id. at

PID 6416.)

       Stack admitted that the failure to interview Jones presented difficulties with the defense

offered at trial, because defense counsel were unable to resolve factual discrepancies between

Jones’s testimony and that of other witnesses. For example, Jones testified that he called for the

ambulance from the CeBon Restaurant around 1:20, but Sizemore testified that the ambulance

service received the call at 2:36. Further, Sizemore testified that the caller identified the victim as

                                                 -58-
No. 15-5384, Hines v. Mays


a woman who suffered from stab wounds, but Jones testified that he was unable to determine

whether the victim was male or female when he found Jenkins’s body in Room 21. And given the

way Jenkins’s body was wrapped in a bedspread, Jones would have been unlikely to determine the

source of her wounds. In short, “[k]nowing now, going back and looking at things[,] definitely we

should have interviewed him.” (Id. at PID 6415.)

       Trial counsel’s performance was clearly deficient because they abandoned any effort to

interview Jones based on nothing more than an assurance by the sheriff that Jones was not involved

in Jenkins’s murder. In Strickland, the Court explained that a reviewing “court should keep in

mind that counsel’s function, as elaborated in prevailing professional norms, is to make the

adversarial testing process work in the particular case.” 466 U.S. at 690. In Towns v. Smith, we

interpreted that language to assign to trial counsel an “obligation to investigate all witnesses who

may have information concerning his or her client’s guilt or innocence.” 395 F.3d 251, 258 (6th

Cir. 2005) (citation omitted). In determining whether a particular decision not to investigate

constituted ineffective assistance, “the relevant question is not whether counsel’s choices were

strategic, but whether they were reasonable.” Id. (citations omitted). Hines’s trial counsel made

no effort to interview or investigate Jones, even though Jones was a “known and potentially

important witness” who clearly had information relevant to Hines’s defense. See id. at 259

(citation omitted). This decision was unreasonable—as defense counsel Stack openly admitted—

and constituted deficient performance under Strickland.

       Hines has also shown prejudice, and the Tennessee court’s conclusion to the contrary, see

Hines, 2004 WL 1567120, at *27, was an unreasonable application of Strickland. See 28 U.S.C.

§ 2254(d)(1). Hines was prejudiced by his counsel’s failure to investigate Jones because it

hindered Hines’s ability to effectively challenge the prosecution’s theory and timeline of events,



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No. 15-5384, Hines v. Mays


as well as undermined Hines’s ability to build an affirmative argument pointing to Jones as an

alternative suspect. See Ramonez v. Berghuis, 490 F.3d 482, 489–91 (6th Cir. 2007) (concluding

a state court’s finding of no prejudice under Strickland was objectively unreasonable—and thus

the habeas petitioner was entitled to relief—where trial counsel was ineffective for failing to

interview witnesses who could corroborate petitioner’s version of events while undermining a key

prosecution witness’s testimony).

        The failure to interview or investigate Jones left defense counsel without key information

regarding Jones’s relationship with Jenkins and his activities at the motel prior to and on the day

of the murder—much of which could have helped the defense to credibly cast Jones as an

alternative suspect, or at the very least seriously undermine his testimony. At a deposition taken

during the initial state post-conviction proceedings, Jones offered information that would have

significantly aided Hines’s defense at the trial. Jones stated that he and Vernedith White were at

the CeBon Motel to use a room on the day of the murder because they were having an affair, which

had been on-going for “[a] couple of years.” (R. 174-5, PID 5674–75.) They went to the motel

almost every Sunday, arriving “between 10:00 and 11:00.” (Id. at PID 5675.) Jones explained

that he usually contacted Jenkins about obtaining a room: “The girl that was dead, usually she

took care of me when I was there.” (Id. at PID 5676.) Most Sundays, Jones would get a motel

room key from Jenkins instead of the motel owners. Jones stated that he “usually paid $20” for

the room rather than the full rate. (Id. at PID 5692.)

        On the day of Jenkins’s murder, Jones was specifically looking for Jenkins when he arrived

at the motel. Jones and White were at the motel for about an hour before finding the body. During

that hour, they briefly left to go to the parking lot of a restaurant on the top of the hill before quickly




                                                   -60-
No. 15-5384, Hines v. Mays


returning—but Jones did not enter the restaurant because he wanted to watch the motel parking lot

from the top of the hill to see if anyone would return who would be able to get him a room.

       Jones also stated that, contrary to his trial testimony, he did not stick around after the call

to the sheriff was made, and instead drove his female companion, Vernedith White, home. When

he later returned to the motel, Jones spoke with Sheriff Weakley, whom Jones knew because “one

of them boys of mine was always in trouble.” (Id. at PID 5694.)

       Jones explained that Sheriff Weakley had tried to put him at ease about the problem of why

he was at the hotel when he discovered the body, and Jones “understood” that he would not be

asked the reason for his presence at the motel by either party at the trial. (Id. at PID 5688–89.)

Jones confirmed that he never spoke with an investigator or an attorney for Hines before trial.

Jones said that he knew “[n]othing” about the murder other than finding Jenkins’s body. (Id. at

PID 5695.) Notably, at this deposition Jones gave a different timeline for when he found the body,

explaining that he arrived at the motel at “[a]bout 10:30 or so,” and found Jenkins’s body “[a]round

11:00.” (Id. at PID 5695–96.)

       Much of this information provided by Jones in his post-conviction deposition could have

provided ample fodder for defense counsel to focus on Jones as a reasonable alternative suspect.

Jones, who was married, was at the motel due to an affair with a younger woman—an affair which

he had a clear motive to hide. Jones had known the victim, Jenkins, through weekly interactions

for approximately two years. Jenkins knew of Jones’s secret affair with White, and she helped to

facilitate the affair by getting Jones room keys and giving him a discounted rate for use of rooms.

On the day of Jenkins’s murder, Jones arrived at the motel specifically looking for her and

monitored the parking lot of the motel closely for an hour. Jones typically paid for the rooms he

rented with $20, and a $20 bill was found under the wrist band of Jenkins’s watch when her body



                                                -61-
No. 15-5384, Hines v. Mays


was found. Furthermore, Mary Sizemore of the Cheatham County Ambulance Service testified

that she learned from dispatch that Jones had reported “there was a woman stabbed,” but when

Sizemore entered Room 21, she was unable to determine that Jenkins had been stabbed until she

unwrapped the bedspread around Jenkins, which only then revealed Jenkins’s stab wounds.

(R. 173-2, PID 3890–91.) If defense counsel had investigated and presented evidence of these

suspicious circumstances regarding Jones, there is a reasonable probability that Hines would have

been able to convincingly argue at trial that reasonable doubt existed due to Jones’s role as a viable

alternative suspect for Jenkins’ murder. See Poindexter v. Booker, 301 F. App’x 522, 531 (6th

Cir. 2008) (affirming a district court’s grant of habeas relief where the petitioner was prejudiced

by trial counsel’s failure to investigate witnesses who could have implicated a third party as the

shooter).

       Contrary to the state court’s determination, Jones’s desire to keep his affair a secret from

his wife could serve as motive, and the time he spent away from the motel could have been used

to dispose of important evidence. Jones’s motive and opportunity to commit the crime are at least

as compelling as that offered by the prosecution for Hines, if not more compelling. There was no

clear motive for Hines to have committed a murder so gruesome of a woman he had never met

before, in which her body was brutally stabbed in the vagina even after she was incapacitated and

possibly already dead.

       Pointing to Jones as an alternative suspect may have been a viable path for the defense, as

the evidence of Hines’s guilt was not overwhelming. See English v. Romanowski, 602 F.3d 714,

730 (6th Cir. 2010) (finding prejudice from counsel’s failure to investigate where the “evidence of

[the habeas petitioner’s] guilt. . . [wa]s not overwhelming” and “[t]he government presented no

physical evidence”). In so concluding, we are cognizant of the difference between overwhelming



                                                -62-
No. 15-5384, Hines v. Mays


evidence and sufficient evidence. We do not question that there was sufficient evidence to sustain

Hines’s conviction for first-degree murder. The dissent recounts this evidence, which we have

also carefully considered. But Strickland’s prejudice inquiry differs from a sufficiency-of-the-

evidence analysis. See Ferensic v. Birkett, 501 F.3d 469, 474 (6th Cir. 2007). Under Strickland,

we ask whether there is a “reasonable probability” that one juror would have voted differently but-

for counsel’s deficient performance. See English, 602 F.3d at 730. Here, there was ample room

for defense counsel to point to Jones as an alternative murder suspect. There was no DNA or

fingerprint evidence connecting Hines to Jenkins’s murder—not on Jenkins’s body, not in the

room where the murder took place (Room 21), and not on Hines’s clothing. In addition, no witness

testified to seeing Hines near Room 21. In contrast, Jones was clearly in Room 21 on the day of

the murder, had a plausible motive to kill Jenkins, and knew information about the circumstances

of Jenkins’s injuries that would not have been available to someone who just happened upon her

wrapped body.

       Defense counsel’s closing argument at the guilt phase alluded to the idea that Jones’s

presence at the motel had been suspicious.         Yet without any evidence collected from an

investigation into Jones to support this argument, defense counsel likely undermined the defense’s

credibility with the jury by making this implication. Where defense counsel fails to corroborate

statements to the jury, “the jury may well have counted this . . . against [Hines] and his attorney.”

English, 602 F.3d at 729.       “[T]he jury would naturally assume” that defense counsel’s

uncorroborated Jones theory “lacked reliability,” without knowing that the lack of corroboration

was instead a function of defense counsel’s negligence in failing to investigate. See Stewart v.

Wolfenbarger, 468 F.3d 338, 360 (6th Cir. 2006). Had defense counsel collected evidence to

properly show the jury why Jones’s behavior that morning and relationship with Jenkins were



                                                -63-
No. 15-5384, Hines v. Mays


highly suspicious, the strength of Hines’s defense likely would have looked much different.

“The difference between the case that was and the case that should have been is undeniable.” Id.

at 361.

          In any event, Hines does not need to show that Jones was the actual killer to succeed on

his claim before this court. “Even though the jury could have discredited” the theory that Jones

was the true murderer, “there certainly remained a reasonable probability that the jury would not

have,” and that is sufficient to show prejudice under Strickland. Ramonez, 490 F.3d at 491.

          Furthermore, even absent attempting to affirmatively argue that Jones was an alternative

suspect, pre-trial investigation into Jones could have allowed defense counsel to effectively

challenge the prosecution’s case by, at the very least, seriously undermining Jones’s testimony and

calling the prosecution’s timeline of events into question. As trial counsel explained during post-

conviction proceedings, there were numerous inconsistencies between Jones’s testimony and the

testimony of others—such as an hour-long gap between when Jones allegedly found the body at

1:20 and when dispatch was called at 2:36, as well as the inexplicability of Jones’s first report

claiming that a woman had been stabbed given that Jenkins’s body was wrapped in a bedspread

and the cause of her injury would not be apparent unless someone attempted to unwrap her.

Defense counsel were unaware of these inconsistencies before trial—and thus did not investigate

them further—due to their failure to interview or investigate Jones.

          Given that Jones gave an entirely different timeline for his presence at the motel and

discovery of the body during his post-conviction deposition—estimating he found the body around

11:00, more than three hours before dispatch was called—there is ample reason to think a pre-trial

interview of him would have provided defense counsel further evidence to argue that the

prosecution’s timeline was flawed and that Jones was an unreliable witness. Yet defense counsel



                                                -64-
No. 15-5384, Hines v. Mays


was unprepared to challenge the government’s case in this manner, as counsel made no attempt to

investigate or interview Jones before trial—thereby prejudicing Hines. See Stewart, 468 F.3d at

360–61 (finding Strickland prejudice, and in turn the habeas petitioner entitled to relief, where trial

counsel’s failure to investigate allowed the prosecution’s evidence “to go unchallenged”).

       The state court, in concluding there was no prejudice from counsel’s failure to investigate

Jones, unreasonably ignored the key evidence learned at Jones’s post-conviction deposition. See

Hines, 2004 WL 1567120, at *27. The state court ignored the serious inconsistencies and gaps in

Jones’s story, and it ignored the new evidence of the extent of Jones’s established relationship with

the victim. See id. The court mentioned that Jones was “known by the staff” at the motel,

“including the victim.” Id. But Jones’s deposition testimony clearly evidences more than that. It

shows that Jenkins was the specific person at the motel who, on a weekly basis for two years,

would provide Jones with a motel room to facilitate his affair while allowing him to circumvent

the motel’s established daily rate. And on the morning of the murder, Jones was lurking in the

parking lot for about an hour, specifically looking for Jenkins—not just any staff member at the

motel. Only by ignoring this evidence did the state court conclude that pointing to Jones as an

alternative suspect would have been “farfetched.” See id. For the state court’s analysis to have

ignored this evidence was objectively unreasonable, as “weighing the prosecution’s case against

the proposed witness testimony” that was not elicited due to counsel’s ineffectiveness “is at the

heart of the ultimate question of the Strickland prejudice prong.” Ramonez, 490 F.3d at 491.

As the Supreme Court explained in Williams, a state court’s “prejudice determination” is

“unreasonable insofar as it fail[s] to evaluate the totality of the available . . . evidence.” 529 U.S.

at 397–98.




                                                 -65-
No. 15-5384, Hines v. Mays


       Given that presenting Jones as an alternative suspect would not have been “farfetched” in

light of Jones’s deposition testimony, the state court was similarly unreasonable in concluding that

presentation of this theory “could have resulted in a loss of credibility for the defense.” Hines,

2004 WL 1567120, at *27. Armed with evidence to emphasize the suspiciousness of Jones’s

activities at the motel—which is now apparent due to Jones’s post-conviction testimony—Hines

could have made a convincing argument that Jones was a viable alternative suspect. Hines’s

counsel alluded to this argument at trial anyway, without any evidence from an investigation in

support—and that, in turn, was what undermined the defense’s credibility with the jury. See

English, 602 F.3d at 729. The state court’s decision ignored the fact the defense counsel in closing

had already pointed at Jones, and ignoring the trial record in its prejudice determination was

objectively unreasonable. See Williams, 529 U.S. at 398 (explaining a state court’s “prejudice

determination was unreasonable” where it “failed to even mention the . . . argument . . . that trial

counsel did advance”).

       Hines needs only to show “a reasonable probability”—not a certainty—“that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. Hines has carried his burden. For the result of Hines’s guilt trial to

have been different, he only would have needed to sow reasonable doubt in at least one juror’s

mind based on evidence related to Jones. “[T]he negative consequences of defense counsel’s

failure to conduct a sufficient pre-trial investigation” into Ken Jones “sufficiently creates a

reasonable probability that at least one juror would have struck a different balance had defense

counsel not performed deficiently.” English, 602 F.3d at 730. The state court’s contrary ruling

was an unreasonable application of Strickland.




                                                 -66-
No. 15-5384, Hines v. Mays


       B. Failure to present evidence of residual doubt at the sentencing phase

       Hines also contends that trial counsel were ineffective because they did not present

evidence regarding Jones in support of residual doubt at the penalty phase. The warden argues

that this claim is procedurally defaulted because it was not raised in state court and because Hines

cannot establish the requisite cause and prejudice to excuse the default under Martinez.

       The warden is correct that Hines did not raise this claim in the state trial court. Rather, he

raised it at oral argument on post-conviction appeal at the Tennessee Court of Criminal Appeals,

in conjunction with the IATC claim arising from counsel’s failure to interview Jones. Hines, 2004

WL 1567120, at *26 (“We will review this argument along with the related claim, made at oral

argument, that trial counsel could have created residual doubt by properly dealing with Ken

Jones.”). The Tennessee Court of Criminal Appeals subsequently denied the claim for the same

reasons it denied the IATC claim. Id. at *28.

       The Tennessee Court of Criminal Appeals thus adjudicated this claim—at least as to

Jones’s involvement—on the merits without imposing a state procedural bar. The claim is thus

not defaulted and we address its merits. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (“If

the last state court to be presented with a particular federal claim reaches the merits, it removes

any bar to federal-court review that might otherwise have been available.”).

       There is no Eighth Amendment right to a jury instruction concerning residual doubt in the

penalty phase. See Franklin v. Lynaugh, 487 U.S. 164, 173 (1988). Under Tennessee law,

however, a capital defendant may present evidence of residual doubt at the penalty phase. State v.

Hartman, 42 S.W.3d 44, 55–56 (Tenn. 2001) (citing State v. Teague, 897 S.W.2d 248, 256 (Tenn.

1995)). The Tennessee Supreme Court explained that “residual doubt is established by proof that




                                                -67-
No. 15-5384, Hines v. Mays


casts doubt on the defendant’s guilt. It is not limited to proof that mitigates the defendant’s

culpability for the crime.” Id. at 57.

         As discussed, trial counsel were ineffective for failing to investigate Jones’s conduct at the

motel when Jenkins was killed, and were similarly ineffective for failing to present this evidence

in the penalty phase of trial.5 If presented with this evidence regarding Jones, there is a “reasonable

probability” that the sentencing jury would have reached a different verdict, see Strickland, 466

U.S. at 694, and the Tennessee court’s contrary conclusion was an unreasonable application of

Strickland.

                                                CONCLUSION

         Because Hines’s trial counsel were ineffective for failing to investigate Ken Jones, and the

state court’s determination otherwise was an unreasonable application of Strickland, we

REVERSE the district court’s order denying relief and REMAND for proceedings consistent with

this opinion.




         5
           Hines also argues that counsel were ineffective for failing to present DNA evidence at the penalty phase in
support of residual doubt. However, we reject this argument for the same reasons discussed above for why Hines was
not entitled to an evidentiary hearing related to the DNA evidence.

                                                        -68-
No. 15-5384, Hines v. Mays


       KETHLEDGE, Circuit Judge, dissenting.          Respectfully, the majority opinion makes

precisely the same mistake for which our court was summarily reversed in Etherton v. Rivard, 800

F.3d 737 (2015), rev’d sub nom. Woods v. Etherton, 136 S. Ct. 1149 (2016) (per curiam).

Specifically, the opinion “nowhere gives deference to the state courts, nowhere explains why their

application of Strickland was unreasonable rather than merely (in the majority’s view) incorrect,

and nowhere explains why fairminded jurists could view [the petitioner’s] claim only the same

way the majority does. The opinion, in other words, does exactly what the Supreme Court has

repeatedly told us not to do.” Etherton, 800 F.3d at 756–57 (dissenting opinion).

       Here, neither Hines nor the majority has remotely shown that Hines was prejudiced by his

trial counsel’s failure to investigate Ken Jones. To begin, the evidence that Hines killed Katherine

Jenkins was overwhelming. Two days before the murder, Hines boarded a bus in North Carolina

with a one-way ticket to Kentucky. He had a large hunting knife sheathed beneath his shirt. His

girlfriend’s mother—who had bought the ticket because Hines could not afford it himself—

admonished him for taking the knife on the bus, but Hines responded, “I never go anywhere naked.

I always have my blade.” R. 173-4, Pg. ID 4201.

       Shortly after midnight on March 3, Hines checked into Room 9 of the CeBon Motel in

Kingston Springs, Tennessee. Later that morning, around 9:30 a.m., the motel’s manager put maid

Katherine Jenkins in charge of the motel’s operations and gave her a bank bag containing $100 in

small bills. Three hours later, around 12:40 p.m., another maid saw a man driving Jenkins’s Volvo

away from the motel. The maid got into her own car and gave chase, but the Volvo sped off,

heading east toward Nashville.

       Around the same time, Ken Jones arrived at the CeBon Motel. Nobody was at the front

desk, so Jones eventually took the key to Room 21 and left a note saying that he was using the



                                               -69-
No. 15-5384, Hines v. Mays


restroom there. (Testimony at a state post-conviction hearing revealed that Jones was there that

day with Vernedith White, with whom he had been having an affair for 11 years.) When Jones

walked inside Room 21, however, he found Jenkins’s body wrapped in a bedspread, on the floor

on the far side of the room’s two beds. He ran out of the room and across the street to a restaurant,

where he asked someone to call the county sheriff.

         Sheriff’s deputies arrived soon thereafter. They searched Room 21 and, in addition to

Jenkins’s body, found the bank bag—bloody and empty—along with an unfiltered cigarette burned

down to a nub. Then they examined the body. Someone had pulled Jenkins’s clothing up to her

breasts; her underwear was cut in two pieces and scattered across the room. Her neck had

superficial wounds, consistent with “some firm sharp object [held] to [her] neck,” and her hands

showed defensive wounds as if she had tried to “ward off injury.” R. 173-5, Pg. ID 4304. But the

fatal wounds were to her chest—five “deep, penetrating wounds, ranging from 2.5 inches to 6.4

inches in depth.” Hines v. State, No. M2004-01610-CCA-RM-PD, 2004 WL 1567120, at *2

(Tenn. Crim. App. July 24, 2004); see also R. 173-4, Pg. ID 4168; R. 173-5, Pg. ID 4283. A final

knife wound, likely inflicted after Jenkins had died, went through her vagina and penetrated her

abdominal cavity. The deputies also discovered stab holes with similar widths and depths in the

walls of Room 9—the room that Anthony Hines stayed in the prior night. Missing altogether from

the scene was Jenkins’s wallet, keys (which were attached to an “I love Volvo” keychain), and her

Volvo.

         Meanwhile, a group of young adults spotted the Volvo—along with Anthony Hines—on

the side of the road near Gallatin, Tennessee. The car’s engine had overheated—perhaps from

being driven at high speeds—and the youths tried to help Hines cool it off. When that failed, Hines

offered them $10 for a ride to his sister’s house in Bowling Green, Kentucky. They accepted. On



                                                -70-
No. 15-5384, Hines v. Mays


the way, the youths said, Hines “seemed real nervous,” his eyes wide and bright; and he “talked a

lot”—saying, for example, that he had bought the Volvo from “an old lady for $300 or $400.” R.

173-2, Pg. ID 3910, 3932–33; R. 173-3, Pg. ID 4022. One of the youths noticed dried blood on

Hines’s shoulder. During the drive, Hines carried a jacket that he kept folded.

       Hines arrived in Bowling Green sometime between 3:00 and 4:00 p.m. His sister too

noticed blood on his shirt. Hines explained that someone had attacked him at the CeBon Motel,

and that he had stabbed the attacker “in the side . . . and in the chest[.]” R. 173-2, Pg. ID 3967.

But he told his brother-in-law a different story: that he had hitchhiked a ride with a stranger driving

a Volvo, that the stranger had tried to rob him, and that during the ensuing struggle the stranger’s

Volvo had run off the road and flipped over. Afterward, Hines said, he had grabbed the Volvo’s

keys and escaped. He showed his brother-in-law the keychain, which said something like, “I love

Volvo.” The brother-in-law gave Hines a ride to Cave City, Kentucky, where Hines’s grandparents

lived. When Hines arrived in Cave City, he bought a grill as a gift for his sister and brother-in-

law.

       The police found the Volvo around 4:45 p.m., precisely where Hines had abandoned it.

They also found Jenkins’s wallet about 20 feet in front of the car, wrapped in a shirt. Any cash

that had been in the wallet was gone.

       For the next eight days, Hines hid out in the hills around Cave City. On March 11 he turned

himself in to a Kentucky sheriff. Before the sheriff said anything about the murder, Hines

volunteered that he had stolen the Volvo but said that he had not killed Jenkins. Later that day,

Hines told deputies that he would confess to the murder if they would guarantee that he would be

sentenced to death. Deputies eventually investigated Hines’s campsite and found, among other

items, unfiltered cigarettes—much like the one discovered in Room 21.



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No. 15-5384, Hines v. Mays


        The jury heard all this evidence at trial. They heard that Hines always carried a large

hunting knife; that Jenkins’s neck had wounds suggesting that someone had held her at knifepoint;

that her chest and vagina had knife wounds consistent with holes in the wall in Hines’s motel room;

that on March 1 Hines could not afford a $20 bus ticket, but that on March 3—hours after Jenkins’s

murder—he was flush with cash and bought a grill for his sister; that Hines had stolen Jenkins’s

wallet, keys, and car; that Hines had blood on his shirt that afternoon; that he told his sister that he

had stabbed an “attacker” at the motel; and that he volunteered to tell sheriff’s deputies “all about

the murder” if they guaranteed him the death penalty.

        The question here is whether every “fairminded jurist” would agree that, if only Hines’s

counsel had investigated Ken Jones, there would have been a “reasonable probability” that the

result at Hines’s trial would have been different. See Harrington v. Richter, 562 U.S. 86, 101

(2011); Strickland v. Washington, 466 U.S. 668, 694 (1984). But neither Hines nor the majority

has even attempted to make that showing. Nor could they. At trial, Jones offered no testimony

regarding Hines’s guilt, instead testifying about his discovery of the body. Any post-investigation

to impeach him on that score would have been a waste of time—which makes this case easily

distinguishable from the cases cited by the majority. See Ramonez v. Berghuis, 490 F.3d 482,

489–91 (6th Cir. 2007) (investigation could have led to impeachment of the prosecution’s key

witness); Stewart v. Wolfenbarger, 468 F.3d 338, 361 (6th Cir. 2006) (same). And there is zero

reason to think that, after investigation, counsel could have presented Jones as the “real killer” at

trial. Quite the contrary: in post-conviction proceedings, Jones and White testified that they were

regulars at the CeBon Motel, and that they came to the motel on March 3 to do what they had done

at least “100 times”—namely, to carry on their affair, as part of their “normal Sunday routine.”

Hines, 2004 WL 1567120, at *27. And White testified that Jones was in Room 21 that morning



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No. 15-5384, Hines v. Mays


for “less than a minute”—with her watching him the whole time—before he came running out,

scared and—unlike Hines—without any blood on his clothes.

       In sum, the Tennessee Court of Criminal Appeals had every reason to reject Hines’s

Strickland claim on the ground that it was “farfetched.” See id. And we have no reason whatever

to grant habeas relief on that same claim here. I respectfully dissent.




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