Teresa Deion Smith Harris v. CHERRY LINDAMOOD, Warden, Tennessee Prison for Women

FILED
DEC 11, 2009
LEONARD GREEN, Clerk
NOT RECOMMENDED FOR PUBLICATION
File Name: 09a0781n.06
No. 07-5804
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TERESA DEION SMITH HARRIS,
Petitioner-Appellant,
v.
CHERRY LINDAMOOD, Warden, Tennessee
Prison for Women,
Respondent-Appellee.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF
TENNESSEE
Before: BATCHELDER, Chief Judge; SILER and GILMAN, Circuit Judges.
PER CURIAM. Teresa Deion Smith Harris, who is serving a sentence of life without parole
in Tennessee on a conviction of first degree felony murder for her role in the robbery, kidnaping, and
murder of Dennis Brooks, Jr., appeals the district court’s denial of her petition for a writ of habeas
corpus. Upon consideration of Harris’s motion to waive oral argument, we unanimously agreed that
oral argument is not needed. Fed. R. App. P. 34(a). We review the district court’s legal conclusions
de novo. Miller v. Francis, 269 F.3d 609, 613 (6th Cir. 2001). Because Harris’s habeas petition is
based on the transcripts from her state court trial, we also review the district court’s factual findings
de novo. Id. Nevertheless, pursuant to the Anti-Terrorism and Effective Death Penalty Act
(AEDPA), we apply a presumption of correctness to the state court’s factual findings unless clear
and convincing evidence is offered to rebut this presumption. 28 U.S.C. § 2254(e)(1); McAdoo v.
Elo, 365 F.3d 487, 493-94 (6th Cir. 2004). We affirm the judgment of the district court.

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Harris procedurally defaulted her claim that trial counsel was ineffective, in violation of the
Sixth and Fourteenth Amendments, for failing to present evidence that she did not have the necessary
mental state for conviction. See Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). She did
not initially pursue an ineffective assistance of counsel claim in her appeal as a matter of right nor
did she raise this claim in her permissive appeal to the Supreme Court of Tennessee. She first raised
an ineffective assistance of counsel claim in her petition for post-conviction relief. Nevertheless,
in appealing the dismissal of her petition for post-conviction relief, she dropped her claim that trial
counsel was ineffective for failure to present a defense at trial regarding her state of mind. She
attempted to revive this claim in her second permissive appeal to the Supreme Court of Tennessee,
but because she failed to consistently pursue the claim through Tennessee’s ordinary appellate
review procedures, she procedurally defaulted it. See id.
Harris now seeks to revive the claim by attempting to demonstrate her actual innocence of
first degree felony murder. See Herrera v. Collins, 506 U.S. 390, 404 (1993) (stating that a
procedural claim of actual innocence constitutes “a gateway through which a habeas petitioner must
pass to have [her] otherwise barred constitutional claim considered on the merits”). To establish
actual innocence, the habeas petitioner must show that “in light of the new evidence, no juror, acting
reasonably, would have voted to find [her] guilty beyond a reasonable doubt.” Schlup v. Delo, 513
U.S. 298, 329 (1995). She asserts that she is factually innocent because she was suffering from a
mental condition on the night that she participated in the crime and could not have had the required
mens rea to commit first degree felony murder. Under Tennessee law, no culpable mental state is
required for conviction of felony murder, except the intent to commit the underlying offense. Tenn.

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Stat. Ann. § 39-13-202(b). Therefore, the key inquiry in this petition is whether Harris has
sufficiently demonstrated that she did not have the required intent to commit any of the predicate
offenses to first degree felony murder, i.e., robbery, kidnaping, or murder. See id.
The only new evidence that has been produced in support of Harris’s assertion of actual
innocence is a forensic psychiatric evaluation of Harris by William Bernet, M.D. Dr. Bernet’s report,
produced in 2002, which purports to be an evaluation of Harris’s mental state at the time of the 1993
murder. However, because the report was produced more than eight years after the offense, it lacks
the same credibility and relevance as the psychological evaluations that were submitted during trial.
See Harries v. Bell, 417 F.3d 631, 636 (6th Cir. 2005). Moreover, Dr. Bernet’s report is essentially
a reevaluation of facts that were presented during the sentencing phase of trial.
As such, Dr. Bernet’s report is insufficient to adequately demonstrate that Harris did not have
the required intent to commit first degree felony murder. The only new evidence that the report
provides is Dr. Bernet’s belated opinion that Harris suffered from acute stress disorder during the
course of the offense. Conversely, at the capital sentencing phase, Harris’s experts–Phillip Morson,
M.D., and Gillian Blair, a licensed clinical psychologist–testified that Harris suffered from
post-traumatic stress disorder caused by her witnessing and participating in the murder of Brooks.
Dr. Blair also testified that any post-traumatic stress that Harris suffered from would not have
impacted her actions on the night of the murder.
The evidence put forward by Harris does not adequately account for the deliberate, active role
Harris played in the events leading to the murder of Brooks, including stealing the victim’s truck and
kidnaping Brooks. Harris flagged down Brooks, causing him to stop and exit his truck. After her

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No. 07-5804
Harris v. Lindamood
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compatriots had emerged from their hiding place and forced Brooks to the ground, Harris ran up to
Brooks, punched him two or three times in the back, cursed him in a “mean,” “aggressive,” and
“very hateful voice,” and told him to lie down on the ground. Harris voluntarily got into the stolen
truck. Although it is unclear whether Harris shot Brooks in the hip, she admitted to holding him at
gunpoint. She yelled at Brooks to shut up after he was shot. She admitted to stabbing Brooks’ dead
body and touching her lips to his severed heart. Moreover, she actively and deliberately participated
in covering up the murder. Indeed, the evidence clearly demonstrates that Harris was an active
participant over an extended period of time in the events leading up to the brutal murder of Brooks.
Because Harris has failed to demonstrate her actual innocence for first degree felony murder, her
procedurally barred ineffective assistance of counsel claim cannot be considered on the merits. See
Pudelski v. Wilson, 576 F.3d 595, 605 (6th Cir. 2009).
Harris also argues that her petition should be remanded because the district court allegedly
erred by denying habeas corpus relief without having before it the state court trial transcripts. This
argument fails, however, for two reasons. First, Harris did not seek a certificate of appealability on
this issue, and therefore we are without jurisdiction to review it pursuant to 28 U.S.C. § 2253(c).
See United States v. Hardin, 481 F.3d 924, 926 (6th Cir. 2007) (citing Miller-El v. Cockrell, 537
U.S. 322, 336 (2003)). Second, even if we had jurisdiction, Harris has failed to offer evidence to
rebut the presumption that the district court reviewed the state court trial transcript, filed belatedly
in the record by Harris’s counsel, prior to denying Harris’s motion to alter or amend the denial of
habeas relief. See United States v. Gale, 468 F.3d 929, 941 (6th Cir. 2006) (explaining in the
sentencing context that “[t]here is a presumption in the law that a district court knows and applies

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the law correctly, and a similar presumption must extend to the court’s factual review of the record,”
and that “without some affirmative indication in the record to the contrary . . . , we presume that a
district court has reviewed the evidence provided to it” (citation omitted)); see also Howard v.
United States, 533 F.3d 472, 475 (6th Cir. 2008) (stating that a motion to alter or amend a judgment
operates to suspend the finality of the district court’s judgment and allows the district court to correct
its own errors, sparing the parties and appellate courts the burden of unnecessary appellate
proceedings). Accordingly, Harris’s argument on this point is without merit.
AFFIRMED.

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