In the Supreme Court of the United States

NO. 11-981 In the Supreme Court of the United States NICHOLAS TODD SUTTON, Petitioner, v. ROLAND COLSON, WARDEN, Respondent. On Petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit BRIEF IN OPPOSITION ROBERT E. COOPER, JR. ATTORNEY GENERAL & REPORTER STATE OF TENNESSEE WILLIAM E. YOUNG SOLICITOR GENERAL JOSEPH F. WHALEN COUNSEL OF RECORD ASSOCIATE SOLICITOR GENERAL 425 FIFTH AVENUE NORTH NASHVILLE, TN 37243 (615) 741-3499 joe.whalen@ag.tn.gov March 12, 2012 Attorneys for Respondent Becker Gallagher Cincinnati, OH Washington, D.C. 800.890.5001

i CAPITAL CASE QUESTION PRESENTED BY THE PETITION Whether the prejudice arising from multiple errors committed by defense counsel should be considered cumulatively for purposes of deciding whether counsel rendered ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984).

ii TABLE OF CONTENTS QUESTION PRESENTED BY THE PETITION... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii OPINIONS BELOW... 1 STATEMENT OF JURISDICTION... 1 STATEMENT OF THE CASE... 1 REASONS FOR DENYING REVIEW... 8 THE QUESTION PRESENTED BY THE PETITION IS NOT PROPERLY BEFORE THE COURT... 8 CONCLUSION... 12

iii CASES TABLE OF AUTHORITIES Becker v. Leubbers, 578 F.3d 907 (8th Cir. 2009)... 12 Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987)... 11 Campbell v. United States, 364 F.3d 727 (6th Cir. 2004)... 12 Cullen v. Pinholster, 131 S.Ct. 1388 (2011)... 11 Felkner v. Jackson, 131 S.Ct. 1305 (2011)... 11 Fisher v. Angelone, 163 F.3d 835 (4th Cir. 1998)... 11, 12 Gonzalez v. Thaler, 132 S.Ct. 641 (2012)... 9 Hardy v. Cross, 132 S.Ct. 490 (2011)... 10 Harrington v. Richter, 131 S.Ct. 770 (2011)... 11 Lundgren v. Mitchell, 440 F.3d 754 (6th Cir. 2006)... 11 Medellin v. Dretke, 544 U.S. 660 (2005)... 9

iv Middleton v. Roper, 455 F.3d 838 (8th Cir. 2006)... 11, 12 Moore v. Parker, 425 F.3d 250 (6th Cir. 2005)... 10 Pruitt v. Welsh, No. 1:08cv2550, 2010 WL 3260059 (N.D.Ohio Aug. 18, 2010)... 10 Sheppard v. Bagley, 657 F.3d 338 (6th Cir. 2011)... 10 State v. Sutton, 761 S.W.2d 763 (Tenn. 1988)... 2 Strickland v. Washington, 466 U.S. 668 (1984)... i, 5, 8, 10, 11 United States v. Robson, 307 Fed.Appx. 907 (6th Cir. Jan. 21, 2009).. 12 United States v. Russell, 34 Fed.Appx. 927 (4th Cir. May 20, 2002)... 12 United States v. Williams, 504 U.S. 36 (1992)... 9-10 STATUTES 28 U.S.C. 1254... 1 28 U.S.C. 2253(c)(3)... 9 28 U.S.C. 2254(d)(1)... 10

1 OPINIONS BELOW The June 8, 2011 opinion of the United States Court of Appeals for the Sixth Circuit is reported at 645 F.3d 752. (Pet. App. 1a) The December 4, 2002 memorandum opinion of the United States District Court for the Eastern District of Tennessee is unpublished. (Pet. App. 174a) The June 25, 1999 opinion of the Tennessee Court of Criminal Appeals is unpublished. (Pet. App. 42a) The October 22, 1996 order of the Morgan County, Tennessee, Criminal Court is unpublished. (Pet. App. 113a) STATEMENT OF JURISDICTION Petitioner invokes this Court s jurisdiction under 28 U.S.C. 1254. STATEMENT OF THE CASE Petitioner, Nicholas Sutton, was convicted of firstdegree murder for the January 15, 1985, stabbing death of Carl Estep at the Morgan County Regional Correctional Facility. Both petitioner and the victim, as well as petitioner s two co-defendants, were inmates at the facility. Witnesses saw petitioner (with at least one other inmate) enter Estep s cell, heard a scream come from the cell, and then saw petitioner leave the cell. 1 Shortly thereafter, Estep s body was found lying on the lower bunk of his cell; he had been stabbed 1 One witness saw petitioner enter the cell with one co-defendant; another witness saw petitioner enter with another inmate ; and a third witness saw petitioner enter with both co-defendants. (Pet.App. 152a, 153a)

2 thirty-eight times in the chest and neck. See Pet. App. 150a-154a. One witness, looking through Estep s cell window, saw petitioner stabbing Estep repeatedly. Id. at 154a. The jury sentenced petitioner to death, having found three aggravating circumstances: that petitioner had been previously convicted of one or more felonies involving violence to the person; 2 that the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind; and that the murder was committed while the petitioner was in lawful custody or a place of lawful confinement. (Pet. App. 149a) On direct appeal, the Tennessee Supreme Court affirmed petitioner s conviction and sentence. State v. Sutton, 761 S.W.2d 763 (Tenn. 1988) (Pet. App. 148a). Petitioner then sought state post-conviction review, alleging inter alia numerous instances of the ineffective assistance of his counsel both at trial, during the sentencing proceeding, and on direct appeal. (Pet.App. 123a) The trial court denied relief after an evidentiary hearing. After a careful review of the trial record, the opinion on direct appeal, the pleadings in this cause, and the proof offered at the evidentiary hearing, it is apparent that the petitioner is not entitled to relief as to any of the claims made. Trial counsel performed duties well within the range of that accepted of criminal defense attorneys. There has been no showing of prosecutorial misconduct or other constitutional violations that would warrant relief. 2 The prior conviction was for first-degree murder. (Pet.App. 157a)

3 (Pet.App. 146a) On appeal, petitioner again raise[d] several issues regarding the effectiveness of defense counsel pre-trial, at trial, post-trial, and on direct appeal, including whether the cumulative effect of counsel s repeated, deficient failures render his trial and sentencing fundamentally unfair. (Pet.App. 63a, 100a) On the claim that counsel failed to object to excessive courtroom security, the Tennessee Court of Criminal Appeals found that the evidence did not preponderate against the trial court s finding that the security was not excessive or prejudicial and thus that the petitioner had failed to establish prejudice. (Pet.App. 63a) See Pet.App. 126a, 144a ( A measure of security was necessary because of the number of inmates on trial and appearing as witnesses in the case ; Judge Eblen testified that this was really not a big event in Morgan County and that the officers were not overly conspicuous ). On petitioner s claims that counsel failed to object to aspects of the prosecutor s closing arguments, the court found that while some of the remarks of the prosecutor were improper, the petitioner had failed to show that he was prejudiced by counsel s failure to object. (Pet.App. 93a; 93a-99a) On the claims that counsel had failed to support a motion for a psychological evaluation or otherwise investigate and present mitigation evidence at sentencing, the court concluded that petitioner ha[d] failed to demonstrate prejudicial ineffectiveness of counsel (Pet.App. 84a); the court emphasized that if a psychiatrist or clinical psychologist had testified, there would have been a distinct probability that the expert would have been cross-examined about the details of the petitioner s prior episodes of violence,

4 consisting of at least three prior homicides, including the murder of his grandmother. (Pet.App. 85a) [T]he proof at the post-conviction hearing showed little positive or redeeming evidence.... Moreover, some of the proposed testimony would have been damaging to the defense.... [D]efense counsel would have necessarily had to consider the daunting prospect that such proposed evidence would have invited crossexamination or rebuttal to show the circumstances surrounding the two murders committed in North Carolina and the murder of his grandmother. The petitioner s grandmother, who was a school teacher, had adopted and raised the petitioner, provided for his material needs, and protected him from his father s psychotic outburst of violence. It was when the grandmother discovered the prior murders that the petitioner beat her to death. (Pet.App. 82a) There were a number of other ineffective-assistance claims as well, and based on its review of all of the issues raised by petitioner regarding ineffective assistance of counsel, the court also reject[ed] the petitioner s contention that the cumulative effect of any errors found would require reversal. (Pet.App. 100a) Finding no basis for reversal on these or any of petitioner s other claims, the Court of Criminal Appeals affirmed the denial of post-conviction relief (Pet.App. 112a), and the Tennessee Supreme Court later denied an application for permission to appeal.

5 (Pet.App. 42a) Petitioner then filed a petition for federal habeas relief, which again included numerous individual claims alleging ineffective assistance of counsel, as well as a claim alleging that the cumulative effect of the deficiencies of the Petitioner s trial counsel... constituted a denial of the Petitioner s constitutional rights. (C.A.J.A. 90, 26). Examining petitioner s non-defaulted claims of ineffective assistance with the recognition that relief could only be granted for state court decisions that contradict or unreasonably apply Strickland [v. Washington, 466 U.S. 668 (1984)] (Pet.App. 215a), the district court denied relief on all of these claims, concluding that the state court had not unreasonably rejected them. (Pet.App. 214a-258a) The court also denied relief on petitioner s other habeas claims and dismissed the petition. (Pet.App. 168a) The district court granted a certificate of appealability (COA) with respect to two of petitioner s ineffective-assistance claims. (Pet.App. 169a-170a) Petitioner then applied to the Sixth Circuit for an expansion of the COA for 24 additional claims, including his claim alleging the cumulative effect of attorney deficiencies (Claim 26). Sutton v. Bell, No. 03-5058 (6th Cir.) (Application for Expansion of Certificate of Appealability, at 31). 3 The Sixth Circuit granted this application in part, granting a COA for 6 additional ineffective-assistance claims: Claims 23, 24, and 25(q)(5), (8), (13), and (14); the court agree[d] with the district court that [petitioner s] remaining claims do not warrant further review. Sutton v. Bell, 3 Petitioner subsequently filed a motion to supplement his application to add 3 more claims.

6 No. 03-5058 (6th Cir.) (Feb. 28, 2006 order granting and denying expansion of certificate of appealability, at 2). Thus, there was no grant of a COA for Claim 26, petitioner s cumulative-effect claim. In the subsequent appeal, a divided panel of the Sixth Circuit affirmed the district court s denial of habeas relief; reviewing the eight individual claims of ineffective assistance under the AEDPA standard of review, the majority concluded that the state court decisions rejecting these claims were not unreasonable. (Pet.App. 6a, 11a, 12a, 14a, 21a). 4 5 In a concurring opinion, Judge Daughtrey focused on the claim that counsel was ineffective for failing to present mitigation evidence, stressing that [petitioner s] prior history would almost certainly have been admissible to rebut much of the proposed mitigation evidence. (Pet.App. 28a) 4 To be precise, as to one claim alleging counsel s failure to object to the heinous, atrocious, or cruel aggravating circumstance the majority concluded that [t]his claim fails for lack of prejudice, without referring to the state court decision. (Pet.App. 15a) See Pet.App. 90a-91a. 5 Petitioner says that neither the Sixth Circuit nor the state appellate court reached the question of deficient performance (Pet. 27 n.6), but as the Sixth Circuit recognized, at least with respect to the mitigation-evidence claims, the state post-conviction court did. See Pet.App. 21a n.6 (noting state trial court s finding that counsel was not deficient); Pet.App. 128a ( There has been no showing of either deficiency in performance or prejudice. ); Pet.App. 131a ( The question... is whether the petitioner s trial counsel met the usual standards of the profession. He clearly did. ). See also, e.g., Pet.App. 126a ( This court cannot fault trial counsel for inaction in this [courtroom security] issue. ).

7 [I]f counsel had sought to introduce testimony about [petitioner s] troubled childhood, the state undoubtedly would have been successful in drawing attention to the fact that this [prior violent felony] aggravating circumstance involved [petitioner s] murder of his grandmother.... The state might also have been successful in presenting testimony establishing the motive for that murder, which was [petitioner s] response to his grandmother s negative reaction to learning that he had admitted killing two other people in North Carolina. [W]eighed against information that [petitioner s] conviction for the Estep murder was, in fact, the fourth murder for which he had been found guilty, it seems almost preposterous to think that even one member of the jury would have held out against the death penalty. (Pet.App. 32a) In dissent, Judge Martin focused on this same claim, sharing his belief that it was reasonably possible that the jury would not have unanimously agreed to impose the death penalty if they had heard all of the evidence; he therefore stated that he would find that the violation of [petitioner s] right to effective assistance of counsel at the penalty phase of his trial was prejudicial, and that the state court s conclusion to the contrary is an unreasonable application of clearly established Supreme Court precedent. (Pet.Appp. 36a) Petitioner now seeks this Court s review of the Sixth Circuit decision.

8 REASONS FOR DENYING REVIEW THE QUESTION PRESENTED BY THE PETITION IS NOT PROPERLY BEFORE THE COURT. Petitioner presents the question whether prejudice under Strickland v. Washington, 466 U.S. 668 (1984), from multiple attorney errors should be assessed by considering the errors cumulatively. He asserts that in affirming the denial of habeas relief, the Sixth Circuit failed to assess and utterly disregarded the cumulative effect of his attorney s errors. But any issue of cumulative prejudice arising from multiple deficiencies of counsel was not before the Sixth Circuit on appeal. The petition correctly recounts that the Tennessee Court of Criminal Appeals, on state post-conviction review, rejected petitioner s claim that the cumulative effect of his counsel s alleged deficiencies required reversal (Pet. 19); the petition also correctly recounts that petitioner then filed for federal habeas relief and raised several claims of ineffective assistance of counsel, that the district court dismissed his petition but granted a certificate of appealability (COA) on two such claims, and that the Sixth Circuit partially granted his application to expand the COA to add additional ineffective-assistance claims. (Pet. 19-20) But what the petition does not reflect is that his federal habeas petition included a freestanding claim (Claim 26) alleging that the cumulative effect of his counsel s alleged deficiencies constituted ineffective assistance of counsel (C.A.J.App. 90), see Pet. App. 258a; nor does the petition reflect that the Sixth Circuit denied his application for a COA on this

9 cumulative-effect claim. Sutton v. Bell, No. 03-5058 (6th Cir.) (Feb. 28, 2006 order on application for expansion of COA, at 2) ( We agree with the district court that Sutton s remaining claims do not warrant further review. ). 6 Because the Sixth Circuit denied a COA on petitioner s cumulative-effect claim, this issue was not before that court on petitioner s appeal. See Gonzalez v. Thaler, 132 S.Ct. 641, 656 (2012) (28 U.S.C. 2253(c)(3) s requirement that a COA indicate the specific issue or issues for which it is granted is a mandatory but nonjurisdictional rule ; those issues so specified will receive full briefing and consideration ); see also Medellin v. Dretke, 544 U.S. 660, 666 (2005) ( [habeas petitioner] requires a certificate of appealability in order to pursue the merits of his claim on appeal ). In other words, the Sixth Circuit had no occasion to take[] together (Pet. 29) the several individual claims of ineffective assistance that were before it on appeal the Sixth Circuit s task was merely to review, under the AEDPA standard, the state court decisions adjudicating those claims. It is therefore entirely inaccurate, if not unfair, for petitioner now to say that the Sixth Circuit failed to address or disregarded the question of cumulative prejudice. And because the question of cumulative prejudice was not before and thus not decided by the Sixth Circuit, the question is not properly before this Court. See, e.g., United States v. Williams, 504 U.S. 36, 6 Worse yet, the petition implies that the Sixth Circuit granted the request for a COA on this claim. (Pet. 20). The six additional claims on which the Sixth Circuit granted a COA did not include Claim 26. Id.

10 41, 58 (1992) (citing Court s traditional rule that precludes a grant of certiorari on questions not pressed or passed on below). Furthermore, even if the Sixth Circuit had granted a COA on petitioner s cumulative-effect claim, the question before it would not have been whether to cumulate the prejudicial effect of multiple attorney deficiencies; as petitioner acknowledges (Pet. 30-31), the question under AEDPA, 28 U.S.C. 2254(d)(1), would merely have been whether the state court adjudication of petitioner s cumulative-effect claim was contrary to or involved an unreasonable application of this Court s decision in Strickland. 7 This Court has repeatedly observed that AEDPA imposes a highly deferential standard for evaluating state-court rulings, Hardy v. Cross, 132 S.Ct. 490, 491 (2011) 7 A distinction should be recognized here between the cumulativeeffect claim petitioner brought in this case, i.e., a claim alleging that the cumulative effect of multiple attorney deficiencies amounted to the ineffective assistance of counsel, and an omnibus cumulative-error claim, i.e., a claim alleging that the cumulative effect of multiple trial errors amounted to a violation of due process. Because this Court has not held that multiple trial errors can be cumulated to grant habeas relief, Sixth Circuit precedent establishes that under AEDPA such cumulative-trial-error claims are not cognizable on federal habeas review. See, e.g,, Sheppard v. Bagley, 657 F.3d 338, 348 (6th Cir. 2011) (citing Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005) ( Post-AEDPA, that claim [alleging cumulative effect of juror misconduct, exclusion of evidence, prosecutorial misconduct, and exclusion of a juror] is not cognizable. ) (emphasis in original); see also Pruitt v. Welsh, No. 1:08cv2550, 2010 WL 3260059, at *15-16 (N.D.Ohio Aug. 18, 2010) (concluding that the Magistrate Judge confused the consideration of cumulative trial errors with the inquiry into whether the cumulative effect of alleged instances of ineffectiveness resulted in reversible error ).

11 (quoting Felkner v. Jackson, 131 S.Ct. 1305, 1307 (2011)), and it has said time and again that an unreasonable application of federal law is different from an incorrect application of federal law. Cullen v. Pinholster, 131 S.Ct. 1388, 1411 (2011) (quoting Harrington v. Richter, 131 S.Ct. 770, 785 (2011)) (emphasis omitted). Moreover, precisely because the state court did consider the cumulative effect of counsel s deficiencies (Pet. 19), the question whether such errors should be considered cumulatively under Strickland the question petitioner now seeks to present to this Court would not even have been implicated. So, contrary to petitioner s assertion, AEDPA would be a barrier to this Court s review (Pet. 4) even if the Sixth Circuit had certified and decided petitioner s cumulative-effect claim. Whatever the merit, therefore, of petitioner s contention that [t]here is a deep circuit split over whether prejudice should be cumulated to determine ineffective assistance of counsel (Pet. 2), 8 this case simply does not present the 8 The contention seems, actually, to lack merit. Petitioner says that [i]n failing to cumulate prejudice, the Sixth Circuit joined two other courts of appeals [the Fourth and the Eighth]. (Pet. 25) As discussed above, though, the Sixth Circuit in this case took no approach to the question, and while petitioner asserts that the Sixth Circuit generally takes the view that prejudice should not be cumulated (Pet. 24), there is precedent to the contrary. See Lundgren v. Mitchell, 440 F.3d 754, 770 (6th Cir. 2006) (citing Blackburn v. Foltz, 828 F.2d 1177, 1186 (6th Cir. 1987)) ( In making this determination as to [whether prejudice has resulted from counsel s errors], this Court examines the combined effect of all acts of counsel found to be constitutionally deficient, in light of the totality of the evidence in the case. ). In the Fourth and the Eighth Circuits, although the language petitioner quotes from Fisher v. Angelone, 163 F.3d 835 (4th Cir. 1998), and Middleton v. Roper, 455 F.3d 838 (8th Cir. 2006), appears to back his position, there is some support for the idea

12 question. CONCLUSION The petition for a writ of certiorari should be denied. that these cases stand for the proposition that individual claims of ineffective assistance cannot be considered cumulatively only when they are individually determined not to amount to error. See United States v. Russell, 34 Fed.Appx. 927, 928 (4th Cir. May 20, 2002) (concluding that Fisher did not support district court s rejection of cumulative-effect claim where district court had assumed, but did not decide, that attorney s performance was deficient; if attorney s performance was deficient, cumulatively, Russell could show prejudice ); Becker v. Leubbers, 578 F.3d 907, 914 n.5 (8th Cir. 2009) (citing Middleton, 455 F.3d at 851) ( any prejudice analysis would have to be limited to consideration only of the consequences of the constitutionally defective aspects of representation, not an accumulated prejudice based on asserted but unproven errors ). Compare United States v. Robson, 307 Fed.Appx. 907, 912 (6th Cir. Jan. 21, 2009) (citing Campbell v. United States, 364 F.3d 727, 736 (6th Cir. 2004)) ( [B]ecause Robson has failed to show that his counsel was actually deficient in any meaningful way, he cannot show that the cumulative effect of these alleged deficiencies amounted to ineffective assistance of counsel. ).

13 Respectfully submitted, ROBERT E. COOPER, JR. Attorney General & Reporter WILLIAM E. YOUNG Solicitor General JOSEPH F. WHALEN Counsel of Record Associate Solicitor General 425 Fifth Avenue North Nashville, Tennessee 37243 joe.whalen@ag.tn.gov (615) 741-3499 Counsel for Respondent