408 F.3d 823 (6th Cir. 2005), 02-5392, Harbison v. Bell

Docket Nº:02-5392.
Citation:408 F.3d 823
Party Name:Edward Jerome HARBISON, Petitioner-Appellant, v. Ricky BELL, Warden, Respondent-Appellee.
Case Date:April 29, 2005
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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408 F.3d 823 (6th Cir. 2005)

Edward Jerome HARBISON, Petitioner-Appellant,


Ricky BELL, Warden, Respondent-Appellee.

No. 02-5392.

United States Court of Appeals, Sixth Circuit.

April 29, 2005

Argued: Dec. 2, 2004.

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[Copyrighted Material Omitted]

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Dana C. Hansen Chavis, Federal Defender Services, Knoxville, Tennessee, for Appellant.

Gordon W. Smith, Office of the Attorney General, Nashville, Tennessee, for Appellee.


Dana C. Hansen Chavis, Federal Defender Services, Knoxville, Tennessee, Rosemarie L. Bryan, Shumacker, Witt, Gaither & Whitaker, Chattanooga, Tennessee, for Appellant.

Gordon W. Smith, Office of the Attorney General, Nashville, Tennessee, for Appellee.

Before: SILER, CLAY, and COOK, Circuit Judges.

COOK, J., joined.

CLAY, J. (pp. ---- - ----), delivered a separate dissenting opinion.


SILER, Circuit Judge.

Petitioner Edward Jerome Harbison was convicted of first-degree murder, second-degree burglary, and grand larceny and was sentenced to death. After unsuccessful direct appeal and state post-conviction proceedings, Harbison filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Tennessee. Harbison argues that the district court erred in failing to issue the writ. Certificates of appealability were granted to allow consideration of Harbison's claims relating to an alleged Brady violation, ineffective assistance of appellate counsel, and conflict of interest of appellate counsel. For reasons discussed hereafter, the denial of Harbison's petition is AFFIRMED.


On January 15, 1983, Frank Russell returned home from work to discover that his wife, Edith, had been murdered. The Russells rented an apartment at the back of their Chattanooga, Tennessee, house to a tenant who, at that time, was away on vacation, and Mrs. Russell's body was found inside this apartment. Medical examiners determined that the cause of her death was "massive multiple skull fractures with marked lacerations of the scalp and head, expelling brain tissue and literally crushing the victim's face and disfiguring her beyond recognition." State v. Harbison, 704 S.W.2d 314, 316 (Tenn.1986). Mrs. Russell was last seen that afternoon at a neighborhood market, where witnesses spoke with her between approximately 2:30 and 2:45 p.m. Bags of groceries and ignition keys were found in Mrs. Russell's car, which was parked in the driveway, when her body was discovered near midnight. Nothing in the record indicates a precise time of death. The logical inference is that Mrs. Russell was killed a short time after purchasing the groceries in the middle of the afternoon, or else she would have taken them and her keys out of her car. Moreover, the porch lights were off. Her husband said she always left the outside lights on for protection.

The Russells' house and the rented apartment were burglarized. Missing items included "an RCA XL-100 television, two cable television converters, a quartz heater, a Polaroid 210 camera, a silver Cross pen and pencil set, a jeweler's loop, a jewelry box, antique jewelry, a marble vase, and Mrs. Russell's purse." Id. The police later found the quartz heater, the Polaroid camera, the pen and pencil set,

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and the jeweler's loop in the residence of Janice Duckett, who was Harbison's girlfriend and co-defendant David Schreane's sister. The jeweler's loop was found in Harbison's shaving kit. In an adjacent unoccupied apartment, the police found Mrs. Russell's purse, a jewelry box, and two large paper bags containing antique glassware and brassware. The stolen television was found in the residence of Schreane's girlfriend.

Schreane was taken into custody and questioned on February 21, 1983, when he led police to the missing marble vase. Chemical testing later revealed the presence of blood on the vase. Furthermore, debris that was vacuumed from the carpet in Harbison's car revealed crystalline calcite fragments that were consistent with the marble vase.

Harbison also was arrested on February 21, 1983. In a taped statement, he confessed to killing Mrs. Russell. Harbison stated that after he drove his girlfriend home from work, he and Schreane went to the Russell home, determined that it was empty, and used a screwdriver to break into the residence. While he and Schreane were carrying the stolen items from the house and the apartment to their car, Mrs. Russell returned home. Harbison contended that he thought Mrs. Russell was reaching for a gun, so he grabbed her. He stated that he hit her with the marble vase, "at the most" two times.

At his trial, Harbison testified that he had not killed Mrs. Russell and that he was not at the Russell house on the day of the murder. He said that he was at his girlfriend's home that afternoon and evening. He asserted that his confession was coerced, and that the police had threatened to arrest his girlfriend and take away her children if he did not confess. He further testified that the police had told him what to say and that his taped confession, which was played to the jury, had been altered. Finally, he testified that he had purchased the jeweler's loop at a pawn shop.

William Carter and Vaughn Miller represented Harbison at trial. Before the trial, they made the following discovery requests for exculpatory evidence: a motion for discovery (4/13/1983), a motion for exculpatory evidence (4/13/1983), and a motion to compel disclosure (10/21/1983). As discussed below, they did not receive certain Chattanooga Police Department records, however.

Harbison was convicted and sentenced to death. At sentencing, his trial attorneys presented little mitigation evidence. The only witness offered was Harbison's mother, who briefly testified that he was a good son, was regularly employed, and completed the eleventh grade of school.

After Harbison's trial attorneys filed a motion for new trial, Harbison requested new counsel, and the court appointed Rodney Strong. Strong filed an amendment to the motion for new trial, adding allegations of ineffective assistance of counsel. He asserted that Harbison's trial attorneys were ineffective because they failed to adequately investigate and present witnesses in support of the defense. Strong argued on appeal that the trial attorneys had made no effort to locate witnesses to pursue Harbison's alibi defense. The conviction and sentence were affirmed by the Supreme Court of Tennessee. Harbison, 704 S.W.2d at 319-20.

Thereafter, Harbison filed a post-conviction petition in the trial court. Harbison argued, inter alia, that Strong, his appellate counsel, was ineffective because he did not argue that Harbison's trial attorneys were ineffective for failing to investigate his family background for purposes of mitigation.

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At the post-conviction hearing, Harbison presented evidence of a previously undisclosed family tragedy. When he was a child, his fourteen-year-old sister shot and killed her two young children. She was committed to a state hospital, where she committed suicide. Harbison, his mother, and another sister testified that the family was affected by these events. Harbison stated that he "couldn't rightly say ... what kind of impact it had on [him]." In addition, they testified that Harbison's trial attorneys had never asked about the family background.

Carter, one of Harbison's trial attorneys, also testified that he and Miller did not complete a significant investigation into Harbison's family background and only discussed in passing a possible psychological examination for Harbison. Carter further acknowledged that they had only briefly prepared Harbison's mother for her sentencing testimony during a break at trial.

The trial court dismissed Harbison's post-conviction petition as being without merit. The Tennessee Court of Criminal Appeals affirmed this decision, Harbison v. State, No. 03C01-9204-CR-00125, 1996 WL 266114 (Tenn.Crim.App. May 20, 1996), and the Supreme Court of Tennessee denied further review.

In February 1997, Harbison moved in federal district court for appointment of counsel and stay of execution. These motions were granted. The appointed counsel made a public-records request for the Chattanooga Police Department's records relating to the Russell murder. These documents were received in October 1997, and it was determined that documents in the police file were not in the district attorney's file.

The police files contained evidence regarding Ray Harrison, who initially was a suspect in this case. Harrison previously was represented by Rodney Strong, who later was appointed to be Harbison's appellate counsel. Harrison, upon Strong's advice, refused to take a polygraph examination concerning Russell's murder. Strong did not disclose to Harbison his prior representation of Harrison, however.

The police files indicate that Harrison's wife told David Boss that Harrison had admitted to her that he was at the Russell house at the time of the murder. According to Boss, she said, "He was in the house, he didn't kill her but ... when the door opened they ran." Boss told the police that Harrison was shaky and "scared to death" the day after the murder. Another witness stated that Harrison's wife was concerned because she could not find the jacket Harrison was wearing the day of the murder. These files also indicate that Harrison had a disagreement with Mrs. Russell the week before her murder concerning a ring that he attempted to sell to her. Mrs. Russell took the ring to an appraiser, who determined that the ring was fake. Harrison suspected Mrs. Russell switched the real ring for a fake one. The file indicated that Harrison...

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