279 S.W.3d 282 (Tenn. 2009), E2005-01485-SC-R11, Dellinger v. State

Docket Nº:E2005-01485-SC-R11-PD.
Citation:279 S.W.3d 282
Opinion Judge:JANICE M. HOLDER, C.J.,
Party Name:James A. DELLINGER v. STATE of Tennessee.
Attorney:Catherine Y. Brockenborough, Donald E. Dawson, and Sara Willingham, Nashville, Tennessee, for the appellant, James A. Dellinger., Robert E. Cooper, Attorney General & Reporter; Michael E. Moore, Solicitor General; Mark E. Davidson, Assistant Attorney General; Jennifer L. Smith, Associate Deputy A...
Case Date:January 22, 2009
Court:Supreme Court of Tennessee

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279 S.W.3d 282 (Tenn. 2009)



STATE of Tennessee.

No. E2005-01485-SC-R11-PD.

Supreme Court of Tennessee, Knoxville.

January 22, 2009

Rehearing Denied Feb. 23, 2009.

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Catherine Y. Brockenborough, Donald E. Dawson, and Sara Willingham, Nashville, Tennessee, for the appellant, James A. Dellinger.

Robert E. Cooper, Attorney General & Reporter; Michael E. Moore, Solicitor General; Mark E. Davidson, Assistant Attorney General; Jennifer L. Smith, Associate Deputy Attorney General; Michael L. Flynn, District Attorney General; and Rocky H. Young, Assistant District Attorney General, for the appellee, State of Tennessee.

Wade V. Davies, Knoxville, Tennessee, for the amicus curiae, Tennessee Association of Criminal Defense Lawyers.

Patricia Head Moskal, Nashville, Tennessee, and Meir Feder, New York City, New York, for the amicus curiae, The Innocence Project.

JANICE M. HOLDER, C.J., delivered the opinion of the court, in which WILLIAM M. BARKER, CORNELIA A. CLARK, GARY R. WADE, and WILLIAM C. KOCH, JR., JJ., joined.



We granted this appeal to decide an issue of first impression: whether a freestanding claim of actual innocence is cognizable in an initial petition for post-conviction relief under the Tennessee Post-Conviction Procedure Act, Tennessee Code Annotated sections 40-30-101 through-122. We have also chosen to discuss the petitioner's ineffective assistance of counsel claims and the burden of proof for prevailing on such claims. In 2003, the petitioner filed a petition for post-conviction relief. The post-conviction trial court denied his petition, and the Court of Criminal Appeals affirmed. The Court of Criminal Appeals held that: (1) a freestanding claim of actual innocence is not cognizable in an initial petition for post-conviction relief; (2) the post-conviction trial court applied the correct burden of proof to the petitioner's ineffective assistance of counsel claims; and (3) the petitioner was not denied the effective assistance of counsel. We hold that a claim of actual innocence based on new scientific evidence is cognizable in an initial petition for post-conviction relief. We affirm the Court of Criminal Appeals' denial of relief, however, because the petitioner has not met his burden of proof to support such claim. We also hold that the post-conviction trial court applied the correct burden of proof to the petitioner's ineffective assistance of counsel claims. To provide clarity in the law, however, we concurrently amend Tennessee Supreme Court Rule 28 section 8(D)(1). Finally, we hold that

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the petitioner was not denied the effective assistance of counsel. We affirm the judgment of the Court of Criminal Appeals in all other respects.

Actual Innocence

Proof at Trial

In 1996, the petitioner, James A. Dellinger, and his co-defendant, Gary Sutton, were convicted of the first degree premeditated murder of Tommy Griffin and sentenced to death. In the direct appeal of State v. Dellinger, we described the evidence at trial:

On the afternoon of [Friday,] February 21, 1992, Dellinger, Sutton, and Griffin spent several hours at Howie's Hideaway Lounge (Howie's) on Highway 321 in Maryville, Tennessee. The three men drank beer and played pool until approximately 7:00 p.m., when they left the bar in a dark-blue Camaro. Witnesses testified that there was no evidence of hostility among the men while they were in the bar.

Around 7:00 p.m. Cynthia and Kenneth Walker were traveling north on Alcoa Highway near the Hunt Road exit. They observed three men who appeared to be fighting in a dark-colored Camaro on the side of the road. Two of the men were standing outside of the car attempting to forcibly remove the third man from the back seat. Kenneth Walker used his portable radio to report the incident to the dispatcher for Rural Metro Blount County Ambulance.

Sharon Davis, who was also driving north on Alcoa Highway around the same time, observed a shirtless and shoeless man stumbling down the side of the road near the Hunt Road exit. When Davis passed the same area about thirty or forty minutes later, she saw two men standing outside of a dark-colored Camaro on the side of the road. They appeared to be looking for something.

.... Officer [Drew] Roberts found two men, not Dellinger and Sutton, standing next to a pickup truck [on the side of Hunt Road]. A shirtless man sitting on the bed of the truck identified himself as Griffin. Griffin told the officer that his friends had put him out of a car. Griffin would not identify his friends or tell the officer what had happened. Officer Roberts arrested Griffin for public intoxication. Griffin was booked at the Blount County jail at 7:40 p.m. Dellinger arrived about forty-five minutes to an hour later to ask about Griffin's release. Sergeant Ray Herron explained to Dellinger that department policy required a minimum four-hour detention for public intoxication and advised him to come back at 10:30 or 11:00 p.m.

Alvin Henry was a resident of Bluff Heights Road, where Dellinger and Griffin both lived. At approximately 9:00 p.m., Henry looked out of his trailer window and saw Dellinger's white Dodge pickup truck. Henry saw someone enter the passenger side of the truck. The truck drove up the road and pulled into Dellinger's driveway. Henry then noticed fire shooting from Griffin's trailer down the road.... Arson investigator Gary Clabo concluded that the fire was set intentionally....

Jennifer Branam, Griffin's niece, ran to Dellinger's trailer when she learned that Griffin's trailer was on fire. Just as Dellinger's wife was telling Jennifer that Dellinger was not home, Dellinger and Sutton walked down the hall from the living room. The two men were still wearing their jackets, and their pants were wet up to the knees. Jennifer asked them if Griffin was in his burning trailer, and Sutton told her that Griffin

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was in Blount County with a girl. When Jennifer asked the men to accompany her to the trailer, Dellinger responded that they were already in enough trouble.

After returning home, Jennifer looked out the window and saw Dellinger remove an object wrapped in a sheet from his truck and place it into the back of his wife's Oldsmobile. Jennifer testified that the object resembled a shotgun. Herman Lewis, a relative of Jennifer, also observed Dellinger moving an object from his truck to his wife's car shortly after 10:00 p.m. Dellinger and Sutton then left in the Oldsmobile.

At around 11:25 p.m. Dellinger and Sutton returned to the Blount County jail. Dellinger paid a cash bond for Griffin. Officers in the jail lobby overheard one of the defendants tell Griffin that they needed to get him back to Sevier County.

79 S.W.3d 458, 462-64 (Tenn.2002).

No witnesses testified to seeing Griffin alive or speaking to him after he left the Blount County jail. Jason McDonald and his mother, Brenda McKeehan, testified that they heard two loud gunshots at 11:55 p.m. and that it was very unusual to hear gunshots at that time of night. Both witnesses also testified that the gunshots were fired from an area on the Little River in Blount County called the Blue Hole, which is approximately 500 yards down the hill from their residence. At the time he heard the shots, Mr. McDonald was writing in his journal. His entry, which documented that he had heard the shots from " down the hill," was entered into evidence.

The next morning, [Saturday,] February 22, Jennifer Branam saw Dellinger leave his trailer, remove the object he had placed in his wife's car the night before, and place the object under his trailer.

.... At about 2:00 p.m., Connie Branam [Jennifer's mother and Griffin's sister] went to Jerry Sullivan's grocery store in Townsend asking if anyone had seen her brother. Sullivan then saw Branam speaking with two men in a white Dodge pickup truck in the grocery store parking lot.

Later that afternoon, Connie Branam accompanied Dellinger and Sutton to Howie's....

.... When [Terry Lilly Newman] approached Branam, Dellinger, and Sutton to ask if they needed anything ... Branam explained that she was looking for her brother and asked with whom he had left the bar. Newman became confused because she knew that Griffin had left with Dellinger and Sutton. Dellinger asked Newman if she remembered them returning to Howie's after they bailed Griffin out of jail, but Newman knew that the three had not returned to Howie's because she had worked until closing. After unsuccessfully attempting to convince Newman to join them in their search for Griffin, Sutton asked Newman if she was married. When Newman responded that she was married, Sutton stated, " [W]ell, your husband is going to be surprised whenever you're missing one morning, when he wakes up and you're missing." Dellinger, Sutton, and Branam left Howie's around 6:30 p.m.

About 8:00 p.m. that night, James and Barbara Gordon observed a fire in the woods near the Clear Fork area of Sevier County. The following morning, Barbara Gordon watched a white truck occupied by two men leave the woods and head toward the main road. She testified that the truck was traveling rapidly and that it came from the general area where they had observed the fire the night before.

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On Monday, February 24, around 3:30 p.m. Griffin's body was discovered lying face-down on a bank at the Blue Hole. He had been shot in the back of the neck at the base of the skull with a shotgun. Two 12-gauge shotgun shell casings and beer cans were found near the body. The shotgun shells were fired from the same gun that fired shells later found in Dellinger's yard.... Dr. Eric Ellington with the Blount County Medical Examiner's Office conducted the autopsy on Griffin's body. He concluded that the cause of death was the...

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