                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0809n.06
                            Filed: October 4, 2005

                                         No. 03-5902

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


JAMES PHILLIP HUNTER,                           )
                                                )
         Petitioner-Appellant,                  )
                                                )
v.                                              )   ON APPEAL FROM THE UNITED
                                                )   STATES DISTRICT COURT FOR THE
VIRGINIA LEWIS, Warden,                         )   MIDDLE DISTRICT OF TENNESSEE
                                                )
         Respondent-Appellee.                   )




         Before: DAUGHTREY and CLAY, Circuit Judges, and SCHWARZER,* District
Judge.


         PER CURIAM. The petitioner, James Phillip Hunter, is an inmate in the Tennessee

state prison system, where he is serving a life sentence on a first-degree murder

conviction. That conviction was affirmed on direct appeal, and Hunter was denied post-

conviction relief in the state courts. He then filed a habeas action in the district court, under

28 U.S.C. § 2254, claiming that he had received ineffective assistance of counsel at trial

and that he was deprived of a fair trial when the judge refused to give an instruction on the

lesser included offense of negligent homicide. The district court denied relief, concluding

that Hunter had failed to demonstrate constitutional error in connection with the state court


         *
         The Hon. William W Schwarzer, United States District Judge for the Northern
District of California, sitting by designation.
No. 03-5902


decisions in his case. We agree with this conclusion. We also conclude that at least two

of the petitioner’s claims have been procedurally defaulted.


       The deficiencies Hunter identified in his petition included his trial attorney’s failure

to: investigate the crime scene and the victim’s criminal record; interview witnesses

proposed by Hunter; question Hunter about his knowledge of specific acts of violence

committed by the victim and, on appeal, contest the trial court’s ruling that other defense

witnesses could not testify to the victim’s propensity for violence; and object to the state’s

introduction of expert testimony. The petitioner also complains of his attorney’s deficient

questioning on direct examination concerning his prior convictions. These allegations were

raised and fully considered in the state courts. Those courts, like the district court,

determined that the petitioner had failed in each instance to show that he had suffered

prejudice of the kind that would require a finding of ineffective assistance of counsel, under

the standard set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668

(1984). The identity of proposed witnesses, for example, nowhere appears in the record,

nor do we know what evidence could have been learned from them or from a more

thorough investigation of the crime scene. The victim’s prior convictions and his reputation

for violence were conveyed to the jury through the testimony of various witnesses. The so-

called “expert witness,” a police officer who was not qualified as an expert, described tests

that he had run on the weapon used to shoot the victim and their results, but he did not

express an opinion about any phase of those tests. Although the attorney may have

fumbled when asking the petitioner whether he had ever been in any “trouble” other than

                                             -2-
No. 03-5902


the one conviction about which he had just testified, it was, as the state court pointed out,

Hunter’s false denial that “opened the door” to damaging cross-examination by the

prosecution, not simply counsel’s ineptitude.


       In his federal petition, Hunter also raised – for the first time – a claim that his

attorney had forced him to make strategic decisions during trial, thereby abdicating his role

as counsel. The state argues in response that this claim was added to the petition more

than two years after it was filed and was therefore brought outside the statute of limitations.

The “relation back” of an additional claim of ineffective assistance of counsel under these

circumstances requires an interpretation of Federal Rule of Civil Procedure 15(c)(2) that

we have yet to address in a published opinion. We need not address it here, however, both

because the claim has been procedurally defaulted and because it is not borne out by the

record.


       Finally, Hunter claims that he had a constitutional right to a jury instruction on the

charge of criminally negligent homicide, a lesser-included offense of first-degree murder

under the Tennessee homicide statutes. The court refused his request for the instruction

and charged the jury only with the options of first- and second-degree murder and voluntary

manslaughter. Hunter argues that a defendant is constitutionally entitled to an instruction

on any lesser-included charge that is rationally supported by the evidence as part of his

right to a fair jury trial under the Due Process Clause of the Fourteenth Amendment.

Though Hunter raised this federal argument in state court, that court decided the issue


                                             -3-
No. 03-5902


solely under TENN. CODE ANN. § 40-18-110(a), noting that although a defendant is entitled

under the statute to an instruction on all lesser-included offenses, Tennessee case law

interprets the provision to require instruction on a lesser-included charge only when there

is evidence to support a theory of guilt on that charge. The court determined, moreover,

that the evidence presented at trial could not have established guilt on any charge less than

voluntary manslaughter. Given the utter implausibility of the petitioner’s defense, i.e., that

the gun discharged accidentally and on its own, we agree with this conclusion. Certainly,

it is obvious that the state court’s disposition was not contrary to clearly established federal

constitutional law, because the failure of the trial court to give an instruction on criminally

negligent homicide did not seriously impugn the fairness of Hunter’s trial, as measured by

the standard set out in Beck v. Alabama, 447 U.S. 625, 638 (1980).


        Having had the benefit of oral argument, and having studied the record on appeal

and the briefs of the parties, we are not persuaded that the district court erred in dismissing

the petition. Because the reasons why relief should be denied have been fully articulated

by the district court, the issuance of a detailed opinion by this court would be duplicative

and would serve no useful purpose. Accordingly, we AFFIRM the judgment of the district

court upon the reasoning set out by that court in its memorandum opinion dated July 1,

2003.




                                             -4-
