Payne v. Bell

• Decision Date: 22 July 2005
• Docket Number: No. 02-5551.,02-5551.
• Citation: 418 F.3d 644
• Parties: Pervis T. PAYNE, Petitioner-Appellant, v. Ricky BELL, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

418 F.3d 644

Pervis T. PAYNE, Petitioner-Appellant, v. Ricky BELL, Warden, Respondent-Appellee.

No. 02-5551.

United States Court of Appeals, Sixth Circuit.

Submitted: March 4, 2005.

Decided and Filed: July 22, 2005.

ON BRIEF: Todd A. Rose, Burch, Porter & Johnson, Paris, Tennessee, J. Brooke Lathram, Burch, Porter & Johnson, Memphis, Tennessee, for Appellant. Joseph F. Whalen III, Office of the Attorney General, Nashville, Tennessee, Michael E. Moore, Tennessee Attorney General's Office, Nashville, Tennessee, for Appellee.

Before: ROGERS, SUTTON, and COOK, Circuit Judges.

ROGERS, Circuit Judge.

This case was the subject of a prior opinion by this panel, Payne v. Bell, 399 F.3d 768 (6th Cir. Jan.13, 2005), in which, inter alia, we reversed the district court's denial of Payne's petition and ordered the district court to issue a conditional writ of a habeas corpus on the ground that the use of the heinous, atrocious, or cruel ("HAC") aggravating circumstance instruction violated Payne's Eighth Amendment rights, and the Tennessee state court's rejection of Payne's challenge was contrary to clearly established United States Supreme Court precedent. On January 24, 2005, the Supreme Court granted the State of Tennessee's petition for certiorari in another HAC case decided by this court, Cone v. Bell, 359 F.3d 785 (6th Cir.2004), and reversed. Bell v. Cone, ___ U.S. ___, 125 S.Ct. 847, 160 L.Ed.2d 881 (2005). The Supreme Court held that our Cone holding had failed to show proper deference to a state court decision upholding that petitioner's sentence because we had presumed that the Tennessee court did not follow its own precedent with respect to a constitutional narrowing construction of the HAC aggravator. 125 S.Ct. at 853. The Respondent Warden subsequently filed with this panel a timely petition for rehearing on the basis of the Supreme Court's decision in Bell v. Cone. On February 8, 2005, this panel granted the petition for rehearing with respect to Section II.A. of the prior opinion, and ordered supplemental briefing. Upon consideration of the parties' supplemental briefs and the Supreme Court's opinion in Bell v. Cone, we withdraw our prior opinion, Payne v. Bell, 399 F.3d 768 (6th Cir. Jan.13, 2005), and replace it with this amended opinion.¹

Petitioner Pervis T. Payne was sentenced to death in a Tennessee state court for the murder of Charisse Christopher and her daughter Lacie Christopher. Payne appeals the district court's denial of his petition for the writ of habeas corpus. On appeal, Payne alleges three constitutional violations: that during the penalty phase, his Eighth Amendment rights were violated by the instruction on the heinous, atrocious, or cruel aggravating circumstance; that his rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), were violated; and that he was denied the effective assistance of counsel. The Tennessee state court decisions upholding Payne's conviction and sentence were not unreasonable applications of clearly established Supreme Court law, and accordingly, the decision of the district court denying the petition for habeas corpus is affirmed.

I.

The facts of this case, set forth below, are excerpted from the opinion of the Tennessee Supreme Court, State v. Payne, 791 S.W.2d 10 (Tenn.1990), aff'd, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).

Defendant was found guilty of first degree murder of Charisse Christopher and her daughter, Lacie, and guilty of assault with intent to commit murder in the first degree of her son, Nicholas. He was given the death penalty for each of the murders and thirty (30) years for the assault with intent to commit murder offense.

Charisse Christopher was 28 years old, divorced, and lived in Hiwassee Apartments, in Millington, Tennessee with her two children, three and one-half year old Nicholas and two and one-half year old Lacie. The building in which she lived contained four units, two downstairs and two upstairs.... Defendant's girlfriend, Bobbie Thomas, lived in the other upstairs unit....

Bobbie Thomas had spent the week visiting her mother in Arkansas but was expected to return on Saturday, 27 June 1987, and she and Defendant had planned to spend the weekend together. Prior to 3:00 p.m. on that date, Defendant had visited the Thomas apartment several times and found no one at home. On one visit he left his overnight bag, containing clothing, etc., for his weekend stay, in the hallway, near the entrance to the Thomas apartment. With the bag were three cans of Colt 45 malt liquor.

[At approximately 3:10 p.m., the resident manager, Nancy Wilson, heard a terrible disturbance and called the police.]

Officer C.E. Owen, of the Millington Police Department, was the first officer to arrive at the Hiwassee Apartments. He was alone in a squad car when the disturbance call was assigned to Officers Beck and Brawell. Owen was only two minutes away from the Hiwassee Apartments so he decided to back them up. He parked and walked toward the front entrance. As he did so he saw through a large picture window that a black man was standing on the second floor landing of the stairwell. Owen saw him bend over and pick up an object and come down the stairs and out the front door of the building. He was carrying the overnight bag and a pair of tennis shoes. Owen testified that he was wearing a white shirt and dark colored pants and had "blood all over him. It looked like he was sweating blood." Owen assumed that a domestic fight had taken place and that the blood was that of the person he was confronting. Owen asked, "[H]ow are you doing?" Defendant responded, "I'm the complainant." Owen then asked, "What's going on up there?" At that point Defendant struck Owen with the overnight bag, dropped his tennis shoes and started running west on Biloxi Street. Owen pursued him but Defendant outdistanced him and disappeared into another apartment complex.

Owen called for help on his walkie-talkie and Officer Boyd responded. By that time Owen had decided Defendant was not hurt and the blood was not his own—he was running too fast. Owen told Boyd that "there's something wrong at that apartment." They returned to 4516 Biloxi. Nancy Wilson had a master key and let them in the locked Christopher apartment. As soon as the door was opened they saw blood on the walls, floor—everywhere. The three bodies were on the floor of the kitchen. Boyd discovered that the boy was still breathing and called for an ambulance and reported their findings to the chief of police and the detective division. A Medic Ambulance arrived, quickly confirmed that Charisse and Lacie were dead, and departed with Nicholas. He was taken to Le Bonheur Children's Hospital in Memphis.... In addition to multiple lacerations, several stab wounds had gone completely through his body from front to back.... He was in intensive care for a period and had [several] operations before he left the hospital, but he survived.

Charisse sustained forty-two (42) knife wounds and forty-two (42) defensive wounds on her arms and hands.... [The medical examiner] said no wound penetrated a very large vessel and the cause of death was bleeding from all of the wounds; there were thirteen (13) wounds "that were very serious and may have by themselves caused death. I can't be sure, but certainly the combination of all the wounds caused death." He testified that death probably occurred within, "maybe 30 minutes, that sort of time period," but that she would have been unconscious within a few minutes after the stabbing had finished.

The medical examiner testified that the cause of death of Lacie Christopher was multiple stab wounds to the chest, abdomen, back and head, a total of nine. One of the wounds cut the aorta and would have been rapidly fatal.

Defendant was located and arrested at a townhouse where a former girlfriend, Sharon Nathaniel, lived with her sisters. Defendant had attempted to hide in the Nathaniel attic. When arrested he was wearing nothing but dark pants, no shirt, no shoes. As he descended the stairs from the attic he said to the officers, "Man, I ain't killed no woman." Officer Beck said that at the time of his arrest he had "a wild look about him. His pupils were contracted. He was foaming at the mouth, saliva. He appeared to be very nervous. He was breathing real rapid." A search of his pockets revealed a "pony pack" with white residue in it. A toxicologist testified that the white residue tested positive for cocaine. They also found on his person a B & D syringe wrapper and an orange cap from a hypodermic syringe. There was blood on his pants and on his body and he had three or four scratches across his chest. He was wearing a gold Helbrose wristwatch that had bloodstains on it. The weekend bag that he struck Officer Owen with was found in a dumpster in the area. It contained the bloody white shirt he was wearing when Owen saw him at the Hiwassee Apartments, a blue shirt and other shirts.

It was stipulated that Charisse and Lacie had Type O blood and that Nicholas and Defendant had Type A. A forensic serologist testified that Type O blood was found on Defendant's white shirt, blue shirt, tennis shoes and on the bag. Type A blood was found on the black pants Defendant was wearing when seen by Owen and when arrested. Defendant's baseball cap had a size adjustment strap in the back with a U-type opening to accommodate adjustments. That baseball cap was on Lacie's forearm—her hand and forearm sticking through the opening between the adjustment strap and the cap material. Three Colt 45 beer cans were found on a small table in the living room, two unopened, one opened but not empty, bearing Defendant's fingerprints, and a fourth empty beer can was on the landing outside the apartment door. Defendant was shown to have purchased Colt 45 beer earlier in the day. Defendant's fingerprints were also found on the telephone and counter in the kitchen.

Charisse's body...