Black v. Bell, s. 02–5032

• Decision Date: 04 January 2012
• Docket Number: 08–5644.,Nos. 02–5032,s. 02–5032
• Citation: 664 F.3d 81
• Parties: Byron Lewis BLACK, Petitioner–Appellant, v. Ricky BELL, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

664 F.3d 81

Byron Lewis BLACK, Petitioner–Appellant,
v.
Ricky BELL, Warden, Respondent–Appellee.

Nos. 02–5032

08–5644.

United States Court of Appeals, Sixth Circuit.

Argued: Dec. 8, 2010.Decided and Filed: Dec. 15, 2011.Rehearing Denied Jan. 4, 2012.*

[664 F.3d 84]

ARGUED: Kelley J. Henry, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Joseph F. Whalen, III, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellee. ON BRIEF: Kelley J. Henry, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Joseph F. Whalen, III, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellee.

Before: MARTIN, BOGGS, and GILMAN, Circuit Judges.

GILMAN, J., delivered the opinion of the court, in which MARTIN, J., joined. BOGGS, J. (pp. 107–08), delivered a separate dissenting opinion.

OPINION RONALD LEE GILMAN, Circuit Judge.

Byron Black, who was tried in state court and sentenced to death in 1989 for committing three murders, appeals the district court's denial of his petition for a writ of habeas corpus. He raises various issues related to the court's 2001 denial of his original habeas petition as well as the court's 2008 denial of his amended petition based on Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). For the reasons set forth below, we AFFIRM the district court's denial of Black's habeas petition regarding his non- Atkins claims, VACATE the court's judgment regarding his Atkins claim, and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

Black was convicted on three counts of first-degree murder for the killing of his girlfriend Angela Clay and her two minor daughters, Latoya, age nine, and Lakeisha, age six. He was also convicted on one count of burglary arising out of the same incident. Black received a death sentence for the murder of Lakeisha, consecutive life sentences for the other two murders, and fifteen years of imprisonment for the burglary.

A. Factual background

Black was born on March 23, 1956. He was 33 years old when the murders were committed in 1988. The Tennessee Supreme Court, in deciding Black's claims on direct appeal, summarized the facts of this case, in part, as follows:

It appears that these bizarre and tragic murders occurred in the early morning hours of Monday, March 28, 1988. The bodies of the three victims were found Monday evening around 9:30 p.m. At the time of the murders, the Defendant was on [a] weekend furlough from the Metropolitan Workhouse in Davidson County....

The Defendant was the boyfriend of Angela Clay, who had separated from her husband, Bennie Clay, about a year before her death. Bennie Clay was the father of Latoya and Lakeisha. Bennie Clay testified that at the time of Angela Clay's death, he and Angela were attempting to reconcile, but the Defendant was an obstacle to the reconciliation. He further testified that Angela began a relationship with the Defendant after their separation and that at times she was seeing both the Defendant and himself. In December, 1986, the Defendant and Bennie Clay had an altercation during a dispute over Angela.... The Defendant pled guilty to the shooting [of Bennie Clay] and received the workhouse sentence, which included weekend furloughs.

State v. Black, 815 S.W.2d 166, 170–71 (Tenn.1991).

[664 F.3d 85]

On the night of the murders, Black drove the victims to the home of Angela's mother. Angela and her two daughters were last seen that evening by her mother at around 11 p.m. Angela's mother testified that Angela telephoned her at approximately 11:20 p.m. that evening after Angela returned home. That phone call was the last time that any of the witnesses spoke to Angela before her death. The police arrived at Angela's apartment at approximately 9:30 p.m. the following night. They did not find any signs of forced entry into the apartment, but they found a pool of blood on the bed and the body of a small child on the floor. Id. The Tennessee Supreme Court continued its summary of the relevant facts, citing the testimony of Dr. Charles Harlan, Chief Medical Examiner for Davidson County:

Investigation revealed the bodies of Angela and her nine year old daughter, Latoya, in the master bedroom. Angela, who was lying in the bed, had apparently been shot once in the top of the head as she slept and was rendered unconscious immediately and died within minutes....

Latoya's body was found partially on the bed and partially off the bed, wedged between the bed and a chest of drawers. She had been shot once through the neck and chest....

The body of Lakeisha, age six, was found in the second bedroom lying facedown on the floor next to her bed. She had been shot twice, once in the chest, once in the pelvic area....

The receiver from the kitchen telephone was found in the master bedroom. The telephone from the master bedroom was lying in the hallway between the two bedrooms. The Defendant's fingerprints were the only prints recovered from the telephones. Two of his fingerprints were found on the phone in the hallway, and one was on the kitchen telephone receiver found in the master bedroom.

Id. at 171–72. A substantial amount of additional circumstantial evidence connected Black to the killings. Id. at 172–73.

B. Procedural history

In 1991, the Tennessee Supreme Court denied Black's numerous claims on his direct appeal. Black then filed a petition for post-conviction relief in the Davidson County Criminal Court. The trial court denied the petition after an evidentiary hearing, and the Tennessee Court of Criminal Appeals (TCCA) affirmed. Black's petition to appeal the denial of his post-conviction claims to the Tennessee Supreme Court was denied. The United States Supreme Court subsequently denied his petition for a writ of certiorari.

Black then filed a petition for a writ of habeas corpus in the district court, based on 28 U.S.C. § 2254, seeking relief on a number of evidentiary, procedural, and substantive grounds relating to both the guilt and penalty phases of his trial, as well as to issues that arose in his various state-court appeals. The district court denied all 34 of Black's habeas claims, including several subclaims, in December 2001. Black v. Bell, 181 F.Supp.2d 832 (M.D.Tenn.2001). It then issued Black a Certificate of Appealability (COA) for all of the claims that it decided on the merits and denied a COA regarding the claims that it dismissed as procedurally defaulted. Black timely appealed the court's decision.

After the Supreme Court decided Atkins in 2002, this court granted Black's motion to hold his case in abeyance so that Black could exhaust his Atkins claim in the state courts. Black then filed a motion in 2002 to reopen his post-conviction proceedings in the state trial court. That court determined that Black had made a sufficient

[664 F.3d 86]

showing for his case to be reopened based on his Atkins claim. It held an evidentiary hearing, but ultimately determined that Black is not mentally retarded under the Atkins standard. The TCCA affirmed this decision in 2006, and the Tennessee Supreme Court denied Black's application for permission to appeal. The United States Supreme Court again denied Black's petition for a writ of certiorari. This court then remanded Black's pending appeal of the district court's denial of his § 2254 petition back to the district court so that it could reconsider Black's mental-retardation claim (which was one of Black's original 34 claims that the district court denied) in light of Atkins.

The district court did so in 2008, ultimately dismissing Black's Atkins claim on the basis that “the state court was not unreasonable in stating that the proof in the record did not support the conclusion, under a preponderance of the evidence standard, that [Black's] I.Q. was below seventy before age 18.” It also dismissed Black's additional claim that the issue of his mental retardation should have been submitted to the jury, ruling that the claim was beyond the scope of this court's remand order, and also because the claim failed on the merits. But the district court granted Black a COA on his Atkins claim, and Black timely filed an appeal. We then granted Black's motion to expand his COA to include the issue of whether he had cause to excuse the procedural default of his claim that the jury improperly weighed an unconstitutional felony-murder aggravating circumstance. But we denied Black's motion to have two additional issues included in his COA.

Black's appeal of the district court's original dismissal of his habeas claims in 2001 and his appeal of that court's denial of his Atkins claim in 2008 have been consolidated in the present appeal. We thus have before us the issues that are within his COAs from both decisions. Although Black's COAs cover many issues, he has limited his appeal to a total of five.

In addition to Black's Atkins claim, the other four district-court determinations that Black now challenges are (1) whether he was competent to stand trial and whether he was entitled to an evidentiary hearing on that issue, (2) whether his trial counsel was constitutionally ineffective in failing to fully investigate, present, and argue mitigating factors against the death penalty, (3) whether his trial counsel was constitutionally ineffective in failing to object to the prosecution's comment during closing argument at the penalty phase of the trial that giving Black a life sentence for all three of the murders would “reward” him, and (4) whether the trial court erred by declining to clarify for the jury, upon its request, the effect of a life sentence.

C. Atkins background

Under Tennessee law, capital defendants are considered mentally retarded if (1) they have “[s]ignificantly subaverage general intellectual functioning as evidenced by a functional intelligence quotient (I.Q.) of seventy (70) or below; (2) [they have d]eficits in adaptive behavior; and (3) [t]he intellectual...