Davidson v. Genovese

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JERRY RAY DAVIDSON, 	)
)
Petitioner, 	) 	Case No. 3:16-cv-01334
)
v. 	)
) 	Judge Eli J. Richardson
KEVIN GENOVESE, 	) 	Magistrate Judge Alistair E. Newbern
)
Respondent. 	)
MEMORANDUM OPINION AND ORDER
Pending before this Court1 is a report and recommendation of the Magistrate Judge (Doc.
No. 90, “R&R”), wherein the Magistrate Judge recommends that this Court GRANT IN PART and
DENY IN PART Petitioner Jerry Davidson’s (“Davidson”) amended petition for habeas corpus
relief (Doc. No. 25, “Amended Petition”). Respondent has filed objections to the R&R (Doc. No.
94, “Objections”),2 arguing that the Magistrate Judge did not properly defer to the state court’s
determination of Davidson’s trial counsel’s performance as required by 28 U.S.C. § 2254(d)(1)
and erred in her prejudice analysis by failing to consider the totality of the circumstances (both
aggerating and mitigating evidence). (Doc. No. 94, generally). Davidson did not file any objections
to the R&R.
For the reasons stated herein, the Court will adopt the R&R in part, decline to adopt the
R&R in part, and deny the Amended Petition.
1 Herein, “the Court” refers to the undersigned District Judge, as opposed to the Magistrate Judge who
authored the R&R.
2 Herein, a given use of the term “Objections” may refer to the document (Doc. No. 94) itself, to the
purported objections contained therein (i.e., the “objections” to the R&R contained within the
“Objections”), or both.
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LEGAL STANDARD FOR REVIEW OF A REPORT AND RECOMMENDATION
When a magistrate judge issues a report and recommendation regarding a dispositive
pretrial matter, the district court judge shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which a proper objection is made.
Fed. R. Civ. P. 72(b)(3); 28 U.S.C.A. § 636(b)(1).3 The district judge may accept, reject, or modify
3 Significantly, and perhaps surprisingly, the statute does not actually direct the district judge to
expressly rule on the objections themselves (i.e., expressly sustain or reject the objector’s specific
criticism(s) of what the magistrate judge did). Instead of requiring the district judge to determine
the validity of the objections to what the magistrate judge did, the statute requires the district judge
to make a determination—de novo, which inherently means ultimately without reference to
whether what the magistrate judge did was objectionable—of the portion(s) of the report and
recommendation to which objection was made. Moreover, since the review of the objected-to
portions of the report and recommendation is de novo, any critiquing of what the magistrate judge
did ultimately would be dicta (albeit relevant and probative dicta to the extent that such critiquing
explains the analysis underlying the district judge’s determination of the objected-to portions of
the R&R). Additionally, district judges in this Circuit not infrequently either decline to rule (or, to
the same effect, deny as moot) a particular objections on the specific ground that so doing is
unnecessary to rule on the objected-to portion of the report and recommendation. E.g., Collins v.
Bright, No. 213CV02987JPMCGC, 2021 WL 5205622, at *3 (W.D. Tenn. Nov. 9, 2021) (“[T]his
objection does not affect or alter the conclusions of the Magistrate Judge and is overruled as
moot.”); Lashuay v. Fornwalt, No. 1:15-CV-1109, 2017 WL 4160947, at *1 (W.D. Mich. Sept. 20,
2017) (“This Court need not resolve all of the objections,” because only some of them needed to
be addressed in order to resolve the motion that was the subject of the report and recommendation);
Weatherspoon v. Williams, No. 2:14-CV-108, 2016 WL 6070994, at *1 (W.D. Mich. Oct. 17, 2016)
(“Plaintiff's objections are irrelevant and will be denied.”); Bowers v. Burnett, No. 1:08-CV-469,
2011 WL 1047343, at *2 n.1 (W.D. Mich. Mar. 18, 2011) (noting that the Court need not resolve
an objection to the extent that the objector’s position on the R&R has other fatal deficiencies);
Powell v. Alcoa High Sch., No. 3:10-CV-212, 2010 WL 2598260, at *2 (E.D. Tenn. June 24, 2010)
(Because this objection is irrelevant to [the magistrate judge’s] recommendations, it is hereby
overruled.”) Cline v. Kelly, No. 09CV859, 2010 WL 1006529, at *9 (N.D. Ohio Mar. 16, 2010)
(“The Court acknowledges [the petitioner’s] objection, but need not resolve it because that specific
fact is not relevant to the resolution of any of the grounds for relief set forth in the petitioner that
the magistrate judge had recommended be denied”).
Thus, although it seems clear that the district judge can expressly rule on the objections, the
Court concludes that a district judge is not required to do so. And herein, the Court declines to do
so, focusing instead on the required de novo review and determination of the objected-to parts of
the R&R—albeit in part by taking account of any ways in which the objections (and response
thereto) shed light on what the Court’s ultimate determination should be.
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the recommended disposition, review further evidence, or return the matter to the magistrate judge
with instructions. Id.
Only “specific written objections” to the magistrate judge’s proposed factual findings and
legal conclusions are “proper” under Federal Rule of Civil Procedure 72(b). Frias v. Frias, No.
2:18-cv-00076, 2019 WL 549506, at *2 (M.D. Tenn. Feb. 12, 2019). Furthermore, Local Rule
72.02(a) provides that such objections must be written and must state with particularity the specific
portions of the Magistrate Judge’s report or proposed findings or recommendations to which an
objection is made. See Fed. R. Civ. P. 72(b)(2); L.R. 72.02(a).
As the R&R noted, “Davidson’s principal arguments in favor of a writ of habeas corpus
address the effectiveness of his representation by trial counsel.” (Doc. No. 90 at 20). The R&R
also set forth the following discussion of such claims:
The Sixth Amendment provides that, “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.”
U.S. Const. amend. VI. The Supreme Court held in Strickland v. Washington[, 466
U.S. 668 (1984),] that “the right to counsel is the right to the effective assistance of
counsel.” 466 U.S. at 686 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14
(1970)); see also id. at 685 (“An accused is entitled to be assisted by an attorney,
whether retained or appointed, who plays the role necessary to ensure that the trial
is fair.”). “An ineffective assistance claim has two components: A petitioner must
show that counsel’s performance was deficient, and that the deficiency prejudiced
the defense.” Wiggins v. Smith, 539 U.S. 510, 521 (2003).
Deficient performance under Strickland is “measured against an ‘objective
standard of reasonableness’ ‘under prevailing professional norms.’” Rompilla v.
Beard, 545 U.S. 374, 380 (2005) (quoting Strickland, 466 U.S. at 687, 688); see
also Wiggins, 539 U.S. at 521 (“The proper measure of attorney performance
remains simply reasonableness under prevailing professional norms.” (alteration
omitted) (quoting Strickland, 466 U.S. at 688)). “[I]n applying Strickland [ ] ,
hindsight is discounted by pegging adequacy to ‘counsel’s perspective at the time’
[ ] decisions are made and by giving a ‘heavy measure of deference to counsel’s
judgments[.]’” Rompilla, 545 U.S. at 381 (quoting Strickland, 466 U.S. at 689,
691).
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(Doc. No. 90 at 20). The Court adopts the Magistrate Judge’s cogent statements here regarding
Strickland and its standards relevant to claims of ineffective assistance of counsel. Notably,
Strickland happened to be a capital case, although it is apparent that its teachings apply likewise
to non-capital cases.
Strickland made clear, among other things, that counsel has a duty to investigate matters
relevant to a case as appropriate. See 466 U.S. at 690. Strickland then noted that counsel’s
performance should almost never be deemed deficient when it is the result of “strategic choices
made after made after thorough investigation of law and facts relevant to plausible options”; such
choices are “virtually unchallengeable.” Id. at 690-91. Strickland then addressed the extent to
which strategic choices could be deemed reasonable—and thus not grounds for a finding of
deficient performance—when “made after less than complete investigation.” Id. at 691. Strickland
explained that such strategic choices “are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.” Id. “In other words, counsel has
a duty to make reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary.” Id. And, the Supreme Court noted, “[i]n any ineffectiveness case, a
particular decision not to investigate must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel's judgments.”4 Id.
4 In Strickland, the Supreme Court seemed to use interchangeably the terms “complete” and “thorough” to
refer to an investigation that is sufficient to render virtually unchallengeable strategic decisions made after
the investigation. That is, a “complete” (or “thorough”) investigation in this context is one that is adequate
under the circumstances to make subsequent strategic decisions reasonable. Below, the Court will use the
term “complete” to describe such an investigation. As to where the line is between an investigation that is
“complete” and one that is not, Strickland did not say, and presumably the placement of the line is a very
case-specific matter, and subjective matter that is in the eye of the beholder. It appears to be the job of the
habeas court to call it like it sees it, deciding whether a particular investigation by counsel should be deemed
adequate to make subsequent strategic choices virtually unchallengeable.
One additional note about terminology: it appears that in a couple of places, to refer to a “reasonable”
strategic decision (i.e., the kind of strategic choice that would be “virtually unchallengeable” due to its
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LEGAL STANDARD FOR HABEAS RELIEF UNDER THE AEDPA
Petitioner’s right to relief under the Amended Petition as governed by 28 U.S.C. § 2254(d),
as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L.
No. 104-132, 110 Stat. 1214 (1996). That subsection provides:
[a]n application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d)(1)-(2). The R&R correctly and cogently sets forth the United States Supreme
Court’s elucidation of these provisions:
The Supreme Court has repeatedly held “that AEDPA, by setting forth [these]
necessary predicates before state-court judgments may be set aside, ‘erects a
formidable barrier to federal habeas relief for prisoners whose claims have been
adjudicated in state court.’” White v. Wheeler, 577 U.S. 73, 77 (2015) (quoting Burt
v. Titlow, 571 U.S. 12, 19 (2013)).
Under § 2254(d)(1), a state court’s decision is “contrary to” clearly
established federal law only “if the state court applies a rule different from the
governing law set forth in” the Supreme Court’s holdings “or if it decides a case
differently than” the Supreme Court has “on a set of materially indistinguishable
facts.” Bell v. Cone, 535 U.S. 685, 694 (2002) (citing Williams v. Taylor, 529 U.S.
362, 405–06 (2000)). A state court’s “decision is an unreasonable application of
[the Supreme Court’s] clearly established precedent if it correctly identifies the
governing legal rule but applies that rule unreasonably to the facts of a particular
prisoner’s case[.]” White v. Woodall, 572 U.S. 415, 426 (2014). To be actionable
under § 2254(d)(1), a state court’s unreasonable application of Supreme Court
precedent “‘must be objectively unreasonable, not merely wrong; even clear error
being entitled to the deference given that it followed a complete investigation), the R&R used the term
“strategic decision” without qualifying the term in any way. (Doc. No. 90 at n.5; 41). But despite this
terminology, the Magistrate Judge appeared to be fully aware that what is at issue was whether trail counsel
made a reasonable strategic decision, and not just a decision that could be called strategic irrespective of
whether it was reasonable.
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will not suffice.’” Woods v. Donald, 575 U.S. 312, 316 (2015) (quoting Woodall,
572 U.S. at 419); see also Williams, 529 U.S. at 411 (“[A] federal habeas court may
not issue the writ simply because it concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law erroneously or
incorrectly.”). Instead, the petitioner “must show that the state court’s ruling on the
claim being presented in federal court was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
Under § 2254(d)(2), habeas relief is available if the state court’s decision
“was based on an unreasonable determination of the facts in light of the evidence
presented in the State court. proceeding.” 28 U.S.C. § 2254(d)(2). The statute
provides that a state court’s factual determinations “shall be presumed to be
correct” and the petitioner bears “the burden of rebutting the presumption of
correctness by clear and convincing evidence.” Id. § 2254(e)(1); see also Davis v.
Ayala, 576 U.S. 257, 271 (2015) (“State-court factual findings . . . are presumed
correct; the petitioner has the burden of rebutting the presumption by ‘clear and
convincing evidence.’” (quoting Rice v. Collins, 546 U.S. 333, 338–39 (2006))).
AEDPA thus “imposes a highly deferential standard for evaluating state-
court rulings and demands that state-court decisions be given the benefit of the
doubt.” Hardy v. Cross, 565 U.S. 65, 66 (2011) (quoting Felkner v. Jackson, 562
U.S. 594, 598 (2011)). The AEDPA “standard is difficult to meet . . . because it
was meant to be.” Harrington, 562 U.S. at 102; see also Burt, 571 U.S. at 20;
Metrish v. Lancaster, 569 U.S. 351, 357–58 (2013); Cullen v. Pinholster, 563 U.S.
170, 181 (2011). The statute enforces the principle “that habeas corpus is a ‘guard
against extreme malfunctions in the state criminal justice systems,’ not a substitute
for ordinary error correction through appeal.” Harrington, 562 U.S. at 102–03
(quoting 	Jackson 	v. 	Virginia, 	443 	U.S. 	307, 	332 	n.5 	(1979) 	(Stevens, 	J.,
concurring)); see also Woods, 575 U.S. at 316.
AEDPA also imposes a “total exhaustion requirement,” providing that
“‘[a]n application for a writ of habeas corpus . . . shall not be granted unless it
appears that . . . the applicant has exhausted the remedies available in the courts of
the State’” with respect to each claim, or such remedies are no longer available.
Rhines v. Weber, 544 U.S. 269, 274 (2005) (second and third alterations in original)
(quoting 28 U.S.C. § 2254(b)(1)(A)); see also 28 U.S.C. § 2254(c) (“An applicant
shall not be deemed to have exhausted the remedies available in the courts of the
State . . . if he has the right under the law of the State to raise, by any available
procedure, the question presented.”). This “exhaustion doctrine is designed to give
the state courts a full and fair opportunity to resolve federal constitutional claims
before those claims are presented to the federal courts[.]” O’Sullivan v. Boerckel,
526 U.S. 838, 845 (1999). AEDPA therefore requires a petitioner to “properly
present[] his or her claims through one ‘complete round of the State’s established
appellate review process.’” Woodford v. Ngo, 548 U.S. 81, 92 (2006) (quoting id.
at 845). A petitioner incarcerated in Tennessee exhausts all available state remedies
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under AEDPA once the TCCA denies a claim of error. Adams v. Holland, 330 F.3d
398, 402 (6th Cir. 2003) (quoting Tenn. Sup. Ct. R. 39 (exhaustion of remedies)).
“Just as in those cases in which a state prisoner fails to exhaust state
remedies, a habeas petitioner who has failed to meet the State’s procedural
requirements for presenting his federal claims has deprived the state courts of an
opportunity to address those claims in the first instance.” Coleman v. Thompson,
501 U.S. 722, 731–32 (1991). Under the doctrine of procedural default, a petitioner
who may no longer present claims in state court because he or she failed to meet
state procedural requirements must “demonstrate cause for his [or her] state-court
default of any federal claim, and prejudice therefrom, before the federal habeas
court will consider the merits of that claim.” Edwards v. Carpenter, 529 U.S. 446,
451 (2000). The one exception to this doctrine “is the circumstance in which the
habeas petitioner can demonstrate a sufficient probability that [the federal habeas
court’s] failure to review his [or her] federal claim will result in a fundamental
miscarriage of justice.” Id.
(Doc. No. 90 at 17-19). Notably, “AEDPA requires the petitioner to prove that the state court’s
error is ‘an unreasonable application of [ ] clearly established Federal law, as determined by the
Supreme Court of the United States.’” Davenport v. MacLaren, 975 F.3d 537, 544–45 (6th Cir.
2020) (quoting § 2254(d)(1)). The Court discerns that in practical application, a petition meets this
“burden” of “prov[ing]” the unreasonableness of the state court’s application of clearly established
federal law whenever the court is able to clearly perceive such unreasonableness, based either on
the petitioner’s argument or otherwise.
PROCEDURAL BACKGROUND
Neither Davidson nor Respondent disputes the factual determinations of the state courts or
the cogently statement of the procedural background of this matter set forth in the R&R (in large
part by quoting the Tennessee Supreme Court). Therefore, the Court adopts that background in its
entirety and includes it here for reference:
On direct appeal, the Tennessee Supreme Court provided the following summary
of the evidence introduced during [Davidson]’s trial, which the Tennessee Court of
Criminal Appeals (TCCA) adopted on post-conviction review:
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Between 8 and 9 p.m. on September 26, 1995, the victim, Virginia
Jackson, and her dog arrived in a taxi cab at Bronco’s Bar in
Dickson, Tennessee. Jackson was carrying a large purse and a white
bed pillow and wearing multicolored hair clips. When Jackson
arrived at Bronco’s Bar, the defendant, Jerry Ray Davidson, was
sitting quietly by himself drinking beer. Jackson spent the next [few]
hours at the bar drinking two beers and talking with the bartender,
Carol 	Owens, 	and 	other 	bar 	patrons. 	Although 	Jackson 	and
Davidson sat next to one another at one point, the two did not
converse, 	and 	the evidence does not suggest that they were
acquainted. By closing time, only Jackson, Davidson, and Owens
remained in the bar. Owens tried to call a cab for Jackson, but the
cab company was closed for the night. Jackson accepted a ride home
from Davidson and was last seen alive around 11:30 p.m., carrying
her purse and pillow as she got into Davidson’s red pickup truck
with her dog.
Members of Jackson’s family became worried when they did not
hear from her for several days. On October 1, 1995, her family filed
a missing person report with law enforcement officials, who began
an investigation of her disappearance.[5]
On September 30, 1995, only a few days after Jackson was last seen,
Jackson’s brother-in-law observed a pile of clothing lying along a
farm road leading to her house. At that time, he did not connect the
clothing with her disappearance. On October 18, however, he
reported the clothing to law enforcement authorities. On October 18
and 	19, 	law 	enforcement 	officers 	found 	the 	following 	items
belonging to Jackson along the farm road: hair clips, a cell phone,
panties, a pillow, a sweatshirt, and a sock. On October 19, 1995, two
deer hunters found Jackson’s decomposing, nude body. The body
was partially buried in a shallow grave several miles from her house
in a wooded area off an old logging road along the Houston/Dickson
County line.
At trial, the condition of Jackson’s body was described by Dr.
Murray Marks, the forensic anthropologist who disinterred the body,
and by Dr. Charles Harlan, the forensic pathologist who performed
the autopsy on the body. Dr. Marks stated that the body was found
lying chest down. The head was missing, although it appeared that
a space had originally been dug for it in the grave. Part of the torso
and left arm of the body were exposed, and the left hand was
missing. There was evidence that animals had gnawed on the left
arm, the neck, and the shoulder area. However, other trauma to the
5 “Jackson’s dog was found at her home.” State v. Davidson, 121 S.W.3d 600, 605 n.2 (Tenn. 2003).
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body was inconsistent with animal activity. Dr. Harlan observed that
the skin at the front and back of the neck had been cut; the trachea
exhibited a clean, sharp cut; the hyoid bone, which is located in the
upper throat, had also been cut; and there was clear disarticulation
of the cervical vertebral column. In addition, the torso, including the
breast bone, had been cleanly cut open with some type of sharp
instrument. This incision ran almost the entire length of the torso
from the sternum to the navel and exposed the internal organs.
Several superficial cuts had been made in the soft tissue next to the
large incision. Dr. Harlan opined that both the major incision and
the lesser cuts were inflicted after death. Toxicology tests revealed
the presence of alcohol and Prozac in the body, although the quantity
of these substances was not determined. According to Dr. Marks, it
was possible that Jackson’s neck had been cut and her head removed
after death by either animal or human activity. Dr. Harlan opined
that a human being, not an animal, had removed the head after death.
Relying on changes in the body’s color and texture, Dr. Marks
concluded that Jackson had been dead for four to six weeks. Based
on the degree of the body’s decomposition, Dr. Harlan testified that
death had probably occurred within twenty-four hours of Jackson’s
departure from Bronco’s Bar on September 26, 1995. A cause of
death could not be determined from Jackson’s remains. Dr. Harlan,
however, expressed his belief that her death was a result of homicide
and that she could have died from wounds to her neck or head.
All of the evidence regarding Davidson’s role in the killing is
circumstantial. For example, Davidson was a janitor in a hospital
department where surgical instruments were cleaned. Although he
had been a good and reliable employee, he did not return to work as
scheduled after September 26, 1995. He did not contact anyone at
work about his absence, and he was eventually fired. In addition, he
did not return to his residence at his mother’s home for almost three
weeks 	after 	Jackson’s 	disappearance. 	On 	October 	2, 	1995,
Davidson’s mother informed the Dickson police that he was
missing. Mrs. Davidson withdrew the missing person report on
October 8, 1995, after Davidson telephoned her. Davidson later
returned to his mother’s house, once spending the night, and a
second time retrieving a camper top for his pickup truck.
There was also evidence that Davidson was in the area where the
body was found in the days following Jackson’s disappearance.
Between October 4 and 6, 1995, approximately a week after Jackson
disappeared, Melinda Jones saw Davidson driving a red truck very
slowly down Old Yellow Creek Road in Dickson County. Jones saw
an object in the passenger seat that was tightly wrapped in a white
sheet and was about as high as Davidson’s shoulder. As the truck
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went by, Jones saw the white object fall over onto Davidson, who
pushed it away. Later that evening, Jones observed the same truck
traveling in the opposite direction at a high rate of speed. Jones also
testified that she remembered seeing the same truck go down the
road a few days to a week earlier, shortly after Jackson disappeared.
At that time, the truck was going very slowly, and Jones, who was
able to see inside the vehicle as it passed, noticed that “there was
something that wasn’t right about the passenger’s seat.” Jackson’s
body was discovered about one and a half miles from Jones’s home.
Additionally, between October 2 and 6, 1995, around 8 to 9 a.m.,
Davidson came into Kim’s One Stop Market not far from Jones’s
home. He was wearing work pants and was covered with dirt to his
waist. According to one witness, Davidson looked “like he’d been
digging in like a garden or something.” Davidson sat in the store
drinking a cup of coffee for about an hour before driving away in a
red pickup truck with a camper top. A week later he returned to the
market to purchase a soft drink.
The State’s proof also showed that on September 29 and 30, 1995,
Davidson made purchases at a grocery store and at a Wal–Mart in
Waverly, Tennessee, in the county just southwest of the area where
Jackson’s body was found. On October 4, 1995, around the time
Melinda Jones saw Davidson driving his truck down Old Yellow
Creek Road, Davidson also made a withdrawal from an automatic
teller at a bank in Erin, Tennessee, in Houston County. All of these
transactions place Davidson in the vicinity where Jackson’s body
was found at a time shortly after her disappearance.
Other sightings of Davidson after Jackson’s disappearance also
connect him with the killing. For example, on October 9, 1995,
Davidson reappeared at Bronco’s Bar in Dickson. When Owens, the
bartender, asked him where he had taken Jackson on September 26,
1995, Davidson told her that he had dropped Jackson off at a Kroger
grocery store. Later that same day, when Timothy Eads of the
Dickson County Sheriff’s Department went to Bronco’s Bar to
speak with Owens, Davidson was still there. After Owens identified
Davidson as the man who had taken Jackson home, Eads questioned
Davidson about Jackson for several minutes. Davidson informed
Eads that he had left Jackson at the Kroger parking lot around
midnight. Davidson appeared nervous and uncomfortable during his
conversation with Eads and left the bar soon after Eads. When Eads
tried to contact Davidson again, Davidson could not be located. On
October 18, 1995, Eads executed a search warrant at Davidson’s
residence. He seized an expended 20–gauge shotgun shell that was
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later determined to have been fired from a shotgun found in
Davidson’s truck.
On October 12, 1995, Davidson came into the Lakeview Tavern in
Cumberland City and ordered a beer. The bartender, Darla Harvey,
testified that his pants and shoes were covered with dirt. For over an
hour, Davidson sat in the bar and stared at Harvey while sipping his
beer. Disturbed by Davidson’s appearance and behavior, Harvey
went outside and examined Davidson’s truck. At that time, the bed
of the truck was covered with a camper top that had been spray
painted red everywhere but the back window. Harvey looked inside
the camper and saw a dirty sleeping bag, a dirty shovel, a chain, and
two Rubbermaid containers. According to Harvey, the truck was
“very messy,” as if Davidson had been living in it. Harvey informed
some of the bar patrons that she was afraid of Davidson, who then
left the bar at the patrons’ request.
On October 19, 1995, Davidson was arrested at Robert’s Creek Bar
near Cuba Landing in Humphreys County. At the time of the arrest,
Investigator Ted Tarpley spoke with Davidson. Davidson denied
giving Jackson a ride on September 26. After Officer Eads joined
the interrogation, Davidson changed his story and stated that he had
left Jackson at the Kroger parking lot before driving to Nashville.
He claimed that he stayed in Nashville until 3 or 4 a.m., returned
home, and then left the next morning for East Tennessee. Eads and
Tarpley did not inform Davidson that Jackson’s body had been
found. When asked to hypothesize about what might have happened
to Jackson, Davidson responded, “Maybe somebody got her and
chained her to a tree.” Davidson also told Eads and Tarpley that they
might find Jackson with her head and hands missing to keep anyone
from identifying the body. After Davidson was informed that the
body had been found, he was asked what he had done with the head,
and he replied, “I haven’t told you that I killed her yet.” Davidson
later said that he might have something to say but could not say it
yet. He also told the officers that he had quit his job because “things
were just getting tense” and he decided to leave.
Searches of Davidson, his truck, and the area where the body was
discovered yielded several items linking him to the killing. On his
person, the arresting officers found a .25 caliber automatic pistol, a
chrome knuckle knife with the blade open, a pair of handcuffs, a box
of .25 caliber bullets, and a live 20–gauge shell. The pistol was
loaded and ready to fire. At the time of his arrest, Davidson’s truck
did not have a camper top on it. His truck appeared to have been
driven through mud and vegetation. Moreover, the truck contained
the following items: an Ozark Trails tent, two shotguns, a knife,
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handcuff keys, clothing, flashlights, cans of red spray paint, and
Marlboro cigarettes. Officers also found numerous items at the
campsite or grave site[6] that belonged to either the defendant or to
Jackson. The items included a box for an Ozark Trails tent, shells
that had been fired from the shotgun found in Davidson’s truck, a
knife, handcuffs that matched the keys discovered in the Davidson’s
truck, packages and fragments of Marlboro cigarettes, a tool box
resembling one previously seen on Davidson’s truck, cans of red
spray paint, clothing and flashlights similar to those in Davidson’s
truck, and two receipts reflecting a withdrawal from Davidson’s
bank account on October 4, 1995, at an automatic teller in Erin,
Tennessee. Personal items belonging to Jackson, such as her
sandals, billfold, a hair clip, a brush, a prescription bottle, and
cigarette case, were found at the campsite as well.
In addition, the bottom of the passenger seat in Davidson’s truck had
been cut out. A chain and padlock found around the passenger seat
were arranged in such a manner that they could be used to restrain a
passenger. Blood on the passenger seat and head rest tested positive
for human blood. DNA testing indicated that the blood samples from
the truck did not match Davidson’s DNA. Instead, the samples were
consistent 	with 	Jackson’s 	DNA. 	According 	to 	a report 	from
LabCorp, Inc., only one in 265,000 people would be expected to
have DNA matching that of Jackson.
The 	defense 	presented 	evidence 	attempting 	to 	counter 	the
prosecution’s circumstantial evidence. There was testimony that two
tires on Jackson’s truck had been punctured by a knife about two
days before she disappeared. In addition, a forensic pathologist who
testified for the defense criticized the manner in which the State’s
forensic pathologist had performed the autopsy and preserved the
body. The defense pathologist also complained that the quantity of
alcohol and Prozac in Jackson’s body should have been determined.
The defense introduced Jackson’s medical records reflecting her
hospitalizations between 1978 and 1995 for depression and drug and
alcohol abuse in an attempt to show that Jackson might have died
from an overdose of alcohol and/or Prozac. Her medical records
include a report that she had once overdosed on the drug Soma and
had been pronounced dead. In addition, a bottle labeled for a
prescription for thirty pills of Prozac dispensed on September 25,
1995, contained only five tablets when found at Jackson’s home
after her disappearance. To counter the inference that Davidson
could have used a surgical instrument from his workplace to cut
6 “For purposes of investigation, the general location where the body and other evidence was found was
broken down into two areas: the grave site area where the body was actually found and the campsite area
across the logging road from the grave.” State v. Davidson, 121 S.W.3d at 608 n.3.
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Jackson’s body, the defense presented testimony that no surgical
instruments had been reported missing from Davidson’s place of
employment. Finally, the defense presented the testimony of a DNA
expert who was unable to corroborate the findings of the State’s
experts. The expert challenged the opinion that the DNA test ruled
out Davidson as the source of the blood found on the passenger seat
of his truck. The defense expert admitted, however, that she had
made 	no 	independent 	examination 	or 	analysis 	and 	was 	only
reviewing LabCorp, Inc.’s findings.
State v. Davidson, 121 S.W.3d 600, 605–09 (Tenn. 2003); see also State v.
Davidson, No. M2010-02663-CCA-R3-PD, 2013 WL 485222, at *1–5 (Tenn.
Crim. App. Feb. 7, 2013) (same), aff’d in part and rev’d in part, 453 S.W.3d 386.
…
The Tennessee Supreme Court [, mostly adopting language from the
TCCA,] 	summarized 	Davidson’s 	conviction 	and 	sentencing 	proceedings 	as
follows:
At the conclusion of the evidence, the jury convicted Davidson of
first degree premeditated murder and aggravated kidnapping. The
trial 	then 	moved 	to 	the 	sentencing 	phase 	to 	determine 	the
punishment.
During 	the 	sentencing 	phase, 	the 	State 	presented 	proof 	that
Davidson had been convicted in 1971 for assault and battery with
the intent to commit rape, in 1976 for assault and battery with the
intent to ravish and to have unlawful carnal knowledge of a female
over 12 years of age, and in 1983 for felonious crime against nature
and 	for 	felonious 	sexual 	battery. 	A 	Tennessee 	Bureau 	of
Investigation agent testified that Jackson’s body had been mutilated
by cutting the neck area and torso. Photographs showing the
mutilation were re-introduced.
In mitigation, the defense presented the testimony of Davidson’s
mother, several of his co-workers, and his minister. Davidson’s
mother related that, as a child, he had lived with his grandparents
and had not completed school because he was always in trouble with
the law. She described her son as a quiet boy who had few friends.
He had no contact with his father throughout his life. At some
indefinite time in the past, he had spent one to two years at Central
State Hospital for mental problems. Davidson’s mother testified
about how badly Davidson had taken his younger brother’s death in
Vietnam and how he had helped her at home. Next, several of
Davidson’s co-workers testified that he was a good worker, a good
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friend, and a nice, considerate man who would help anyone. They
found Davidson’s involvement in Jackson’s murder inconsistent
with his behavior when he was around them. The last witness for the
defense was Joe Ingle, a minister, who described Davidson as quiet
and passive, with an interest in the Bible’s prophetic books and an
openness to learning new things. Ingle opined that Davidson would
not be a threat in prison and would participate in work or educational
programs.
Based on this proof the jury found that the State had proven beyond
a 	reasonable 	doubt 	the 	following 	statutory 	aggravating
circumstances: (1) the defendant was previously convicted of one
(1) or more felonies, other than the present charge, whose statutory
elements involve the use of violence to the person; (2) the murder
was 	knowingly 	committed 	by 	the 	defendant 	while 	in 	the
commission of a kidnapping; and (3) the defendant knowingly
mutilated the body of the victim after death. Tenn. Code Ann. § 39–
13–204(i)(2), (7), (13) (1991 & Supp. 1995). In addition, the jury
found that the State had proven that the aggravating circumstances
outweighed any mitigating circumstances beyond a reasonable
doubt. As a result, the jury sentenced Davidson to death for the
murder of Virginia Jackson.
State v. Davidson, 121 S.W.3d at 609–10 (footnote omitted); see Davidson v. State,
2013 WL 485222, at *5.
…
Davidson appealed his conviction and sentence with the assistance of
counsel. The TCCA summarized the issues Davidson raised on appeal as follows:
(1) Whether the trial [court] erred when it denied the appellant’s
motions to change venue, strike the venire and grant additional
peremptory challenges;
(2) Whether the evidence is sufficient to sustain the convictions;
(3) Whether a witness for the prosecution should have been allowed
to offer opinion testimony;
(4) Whether the trial court correctly instructed the jury about the
unanimity of its verdict;
(5) Whether the jury’s verdict is proper;
(6) Whether the prosecutor has unlimited discretion in seeking the
death penalty;
(7) Whether the death penalty is imposed in a discriminatory
manner; and
(8) Whether Tennessee courts employ an adequate proportionality
review.
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State v. Davidson, 2002 WL 15381, at *1.
The TCCA affirmed Davidson’s convictions and sentence. Id. at *21.
Because Davidson received a death sentence, his appeal was automatically
docketed before the Tennessee Supreme Court. State v. Davidson, 121 S.W.3d at
604. A divided Tennessee Supreme Court affirmed the TCCA’s decision, id. at 623,
with two justices dissenting on grounds that, among other things, the State had not
introduced sufficient evidence to show that Davidson engaged in the kind of
premeditation necessary to sustain a conviction for first-degree murder under
Tennessee law, id. at 625–29 (Anderson, J., dissenting); id. at 629–31 (Birch, Jr.,
J., dissenting).
Davidson filed a pro se petition for post-conviction relief in Dickson County
Circuit Court on August 12, 2004. (Doc. No. 37-1.) The post-conviction court
summarized Davidson’s pro se claims for relief as follows:
(1) That Davidson’s conviction was based upon the use of a coerced
confession;
(2) That Davidson’s conviction was based upon the use of evidence
gained
pursuant to an unconstitutional search and seizure;
(3) That Davidson’s conviction was based upon the use of evidence
obtained pursuant to an unlawful arrest;
(4) That Davidson’s conviction was based upon a violation of the
privilege against self-incrimination;
(5) That Davidson’s conviction was based upon the unconstitutional
failure of the prosecution to disclose to Davidson evidence favorable
to Davidson;
(6) That Davidson was denied the effective assistance of counsel;
(7) That Davidson’s conviction was based upon the use of illegal
evidence;
(8) That introduction of victim impact evidence at the trial of
innocence or guilt violates due process and fair trial protections
found in the Sixth and Fourteenth Amendments and the analogous
Tennessee Constitution provisions;
(9) 	There 	was 	prosecutorial 	misconduct 	committed 	by 	the
prosecutor arguing that the jury should rely on victim impact
evidence and conjecture at the closing argument in the innocence or
guilt trial which violated Davidson’s right to due process and a fair
trial under the Sixth and Fourteenth Amendments and analogous
Tennessee Constitution provisions.
(10) That the prosecutor committed misconduct in violation of
Davidson’s right to due process and a fair trial by denigrating
Davidson’s 	DNA 	expert 	in 	the 	innocence/guilt 	trial 	closing
argument and making arguments not based upon her testimony.
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(Doc. No. 37-4, [5-6].)
The post-conviction court appointed counsel to represent Davidson (Doc.
No. 37-1), and counsel filed an amended petition on Davidson’s behalf adding the
following claims for relief:
(11) Denial of a fair trial venue;
(12) Jury tampering/jury misconduct;
(13) Prosecutorial misconduct;
(14) Unconstitutionally conducted Voir Dire;
(15) Victim Impact evidence;
(16) Execution of Davidson would violate the Constitution as he is severely
mentally ill;
(17) Additional grounds for ineffectiveness of counsel;
(18) The evidence introduced at trial was insufficient to sustain Davidson’s
convictions;
(19) Davidson’s Due Process rights were violated;
(20) The record of the proceedings against Davidson were incomplete;
(21) The Tennessee death penalty is unconstitutional;
(22) Substantive Proportionality Claim;
(23) Procedural Proportionality Claim;
(24) Davidson’s jury was not required to reach a unanimous verdict
regarding 	all 	factual 	findings 	concerning 	aggravating 	and 	mitigating
circumstances under Apprendi [v. New Jersey, 530 U.S. 466 (2000),] and
Ring [v. Arizona, 536 U.S. 584 (2002)];
(25) Failure to sequester prospective jurors during the voir dire process and
prior to the commencement of the trial;
(26) Execution by lethal injection violates the United States and Tennessee
Constitutions;
(27) The death sentence violates Davidson’s fundamental right to life;
(28) The death penalty system is so broken, so fraught with errors and
inequities, that imposition [of] death in this case violates the State and
Federal Constitutions;
(29) The absolute discretion vested in the prosecutor to seek the death
penalty violates due process, equal protection, effective assistance of
counsel, and freedom from cruel and unusual punishment;
(30) The death penalty is in violation of International Law; [and]
(31) The cumulative effect of all errors at trial violated Davidson’s
constitutional rights.
(Doc. No. 37-4, [6-7].)
After holding an evidentiary hearing over five days between 2006 and 2009,
the postconviction court denied Davidson’s amended petition in a 188-page opinion
issued on November 10, 2010. (Doc. No. 37-4.) The TCCA affirmed the post-
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conviction court’s denial of Davidson’s amended petition. Davidson v. State, 2013
WL 485222, at *48; (Doc. No. 37-25).
The Tennessee Supreme Court affirmed Davidson’s convictions, but
vacated his death sentence on ineffective-assistance-of-counsel grounds. Davidson
v. State, 453 S.W.3d at 406. The four-justice majority held that Davidson’s trial
“counsel 	made 	a 	reasonable 	tactical 	decision 	to 	abstain 	from 	presenting
psychological evidence during the guilt phase of trial” but that “counsel’s
investigation and presentation of mitigation evidence” related to [Davidson]’s
“brain damage and cognitive disorders” during sentencing “fell short of [the]
competence demanded of attorneys in criminal cases” and “prejudiced [ ] Davidson
at his capital sentencing hearing.” Id. at 403–05. One justice concurred in part and
dissented in part, finding that “the majority [ ] properly ruled that the failure of trial
counsel to present mental health evidence as mitigation during the penalty phase
resulted in prejudice to [Davidson]” and “that the same rationale should extend to
the guilt phase of trial. Because of their inadequate preparation as to [Davidson’s]
medical history, his trial attorneys were unable to make an informed choice to forgo
the presentation of this important evidence at trial.” Id. at 409 (Wade, J., concurring
in part and dissenting in part).
On remand, Davidson waived his right to a second sentencing hearing and
accepted a sentence of life imprisonment without the possibility of parole for the
first-degree murder conviction. (Doc. Nos. 37-32, 37-33.) He is currently serving
that sentence, with the sentence for aggravated kidnapping to run consecutively.
(Doc. No. 37-33.)
…
Davidson initiated this action by filing a pro se petition for a writ of habeas
corpus under 28 U.S.C. § 2254. (Doc. No. 1.) The [Magistrate Judge] appointed
counsel, “finding that Davidson has significant cognitive impairments that would
significantly hinder his ability to effectively litigate his case, that Davidson’s case
presents unusual complexities, and that his case is not without merit.” (Doc. No.
60, PageID# 11084 (citing Doc. Nos. 3, 19).) Davidson filed an amended petition
with the assistance of counsel. (Doc. No. 25.) The amended petition includes
nineteen enumerated claims for relief, many with multiple sub-claims that raise the
total number of asserted claims to more than sixty. (Id.) Among other issues,
Davidson’s amended petition addresses ineffective assistance of trial counsel
(IATC), sufficiency of the premeditation evidence underlying his first-degree
murder conviction, ineffective assistance of post-trial and appellate counsel,
discrimination in jury selection under Batson v. Kentucky, 476 U.S. 79 (1986), and
the prosecution’s failure to disclose evidence to his counsel under Brady v.
Maryland, 373 U.S. 83 (1963). (Id.)
The State of Tennessee filed the state-court record and answered the
amended petition. (Doc. Nos. 34–38.) The State argues that Davidson has not
exhausted state review procedures for all of the claims he asserts as AEDPA
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requires, that Davidson has not shown that he is entitled to relief on any of the
claims he has properly exhausted, and that Davidson has not shown the required
cause and prejudice for the [Magistrate Judge] to excuse his failure to exhaust the
remaining claims in his amended petition. (Doc. No. 38.)
Davidson filed a reply, arguing, among other things, that ineffective
assistance of postconviction counsel excuses his procedurally defaulted claims
under Martinez v. Ryan, 566 U.S. 1 (2012). [7] (Doc. No. 47.)
Davidson moved for discovery to develop the evidence related to some of
his IATC claims. (Doc. No. 51.) The Court denied the motion, finding that
Davidson had failed to establish good cause for the requested discovery. (Doc. No.
60.) Davidson then moved for an evidentiary hearing under Martinez regarding his
procedurally defaulted claims. (Doc. No. 70.) The [Magistrate Judge] denied the
motion, finding that Davidson had failed to “explain why an evidentiary hearing is
necessary to establish cause and prejudice for his procedurally defaulted claims”
and failed to “identify or describe any new evidence regarding his post-conviction
counsel’s ineffectiveness or the substantial nature of [his] underlying IATC claims
that he would offer at a hearing.” (Doc. No. 75, PageID# 11174.) The [Magistrate
Judge] further found that it is prohibited from considering new evidence regarding
claims in [Davidson]’s amended petition that the state post-conviction court
considered on the merits. (Doc. No. 75.)
After resolving these motions, the [Magistrate Judge] found that, “[i]n his
filings made to date, Davidson ha[d] offered legal argument to support only a subset
of the more-than-sixty claims presented in his amended petition” and that the forty
claims for which he “ha[d] made no legal argument [were] waived.” (Doc. No. 76,
PageID# 11183.) The [Magistrate Judge] found “that Davidson ha[d] provided
sufficient argument to allow the following claims to proceed” for further briefing:
• 	Exhausted Claims:
o 	1a: that there was insufficient evidence to support Davidson’s first-
degree murder conviction;
o 	2d, 2e, 2f, 2aa: IATC claims regarding failure to fully investigate
and argue Davidson’s mental health and competency;
o 	2g1: IATC claim regarding failure to object to the trial court’s
“intentional” jury instruction;
o 	2h & 2y: IATC claims regarding failure to object to the victim’s
daughter sitting at the prosecution table during jury selection and
failure to object to testimony from the victim’s daughter during the
guilt phase of trial;
o 	2ab: IATC claim regarding failure to object to the prosecution’s
attacks on defense witness Dr. Foreman;
7 In Martinez, the Supreme Court held that ineffective assistance of post-conviction counsel may, in some
circumstances, establish cause to overcome the procedural default of a substantial IATC claim. 566 U.S. at
17.
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o 	19: that the cumulative effect of all errors in the trial and appeal
deprived [Davidson] of a fair and reliable trial and direct appeal.
• 	Procedurally Defaulted Claims:
o 	2a: 	IATC 	claim 	regarding 	failure 	to 	investigate 	gender
discrimination in the selection of the grand jury foreperson;
o 	2b: IATC claim regarding failure to move to quash the indictment or
to move to dismiss the charges because the grand jury did not
comprise thirteen members;
o 	2c: IATC claim regarding failure to make a complete and supported
Batson objection to the prosecution’s striking of Juror Springer;
o 	2g2: IATC claim regarding failure to object to guilt-phase jury
instructions on the prosecution’s burden of proving all essential
elements of the offense beyond a reasonable doubt;
o 	2g3: IATC claim regarding failure to object to the trial court’s failure
to instruct the jury on the lesser included offense of reckless
homicide;
o 	2ad: IATC claim regarding failure to raise any or all of the
constitutional challenges in Davidson’s amended petition;
o 	4: that women were discriminated against, systematically excluded,
and underrepresented in the selection of and service as grand jury
foreperson in violation of due process, equal protection, and the
right to a grand jury selected from a fair cross section of the
community;
o 	5: that the grand jury only had twelve members instead of the
thirteen members required by Tennessee law;
o 	6: that Juror Springer was unconstitutionally excluded from the jury
based on her race;
o 	7: that the guilt-phase jury instructions relieved the prosecution of
its burden of proving all elements beyond a reasonable doubt;
o 	8: that Davidson was incompetent to stand trial;
o 	9: that Davidson’s conviction was based on the use of a coerced
confession;
o 	10: that Davidson’s conviction was based on a violation of his
constitutional right against self-incrimination;
o 	11: that the prosecution withheld notes from District Attorney
Investigator Tarpley’s interview with Witness Jones in violation of
Brady v. Maryland;
o 	12: that the prosecution improperly relied on victim impact evidence
to induce the jury to convict Davidson;
o 	13: that Davidson was deprived of a fair trial because of extensive
pre-trial publicity in the areas from which the jury was selected;
o 	14: that Davidson was deprived of a fair trial and a fair and impartial
jury because of comments that a bailiff and a correctional officer
made to jurors about Davidson;
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o 	15: that the prosecution engaged in various kinds of misconduct
during opening and closing statements and while questioning
witnesses;
o 	16: that the trial court failed to adequately determine the extent of
pretrial publicity and its impact on jurors; improperly allowed the
victim’s daughter to sit at the prosecution table; and failed to excuse
Juror Jackson for cause;
o 	17: that the guilt phase of Davidson’s trial was improperly tainted
with victim impact evidence, including emotional reactions by the
victim’s daughter while testifying.
(Id. at PageID# 11184–86 (footnotes omitted).)
(Doc. No. 90, 1-16). The Magistrate Judge ordered the parties to file supplemental briefs to address
the claims listed above, adding that “[t]he parties also may address the [Magistrate Judge]’s finding
that [Davidson] has waived the unargued claims in his amended petition.” (Id. at 7). Davidson filed
a supplemental brief making specific arguments regarding the identified exhausted claims and
general arguments regarding the procedurally defaulted claims, but did not address or challenge
the Magistrate Judge’s finding that he waived the remaining claims in his amended petition. (Doc.
No. 80). The State also filed a supplemental brief, reiterating its arguments that Davidson failed to
show that any of his exhausted claims have merit, and furthermore, that cause and prejudice existed
to allow the Magistrate Judge to consider any of Davidson’s procedurally defaulted claims. (Doc.
No. 83). Davidson filed a reply stating that he “rests on his previous briefing[.]” (Doc. No. 86 at
1).
THE R&R’s RECOMMENDATIONS
The R&R recommends that the Court grant in part and deny in part Davidson’s request for
habeas corpus relief; finding that the Amended Petition should be granted with respect to four
ineffective assistance of trial counsel (“IATC”) claims (2d, 2e, 2f, and 2aa), and denied with
respect to the remaining exhausted claims (1a, 2g1, 2h, 2y, 2ab, 19) and procedurally defaulted
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claims. (Doc. No. 90 at 58). As for what the relief should be, the R&R made no recommendation,
although it plainly contemplated relief as to the guilt phase only.8
Specifically on the procedurally defaulted claims, the R&R found there was no excuse for
the default as is required to allow those claims to survive. Davidson’s reliance on Martinez v. Ryan,
566 U.S. 1 (2012), to excuse the procedural default of Claims 4 through 17 fails because none of
those claims are IATC claims. See Zagorski v. Mays, No. 3:99-cv-01193, 2018 WL 4352705 at *4
(M.D. Tenn. Sept. 12, 2018) (Precedent in this circuit is clear “that Martinez does not apply to any
claims other than claims of ineffective assistance [of counsel] at trial.”). Then on Claims 2a, 2b,
2c, 2g2, 2g3, 2ad, which are IATC claims, the R&R determined that Davidson failed to assert any
specific argument or evidence to overcome procedural default. (Doc. No. 90 at 54-58).
As to the four IATC claims, 2d, 2e, 2f, 2aa, the Magistrate Judge first summarized their
overarching nature, describing them as claims (1) “that his trial counsel was ineffective under
Strickland because they failed to timely and adequately investigate, obtain, and present evidence
of Davidson’s intellectual limitations and mental health history during the guilt phase of his trial
and that such investigation would have led to evidence showing that Davidson was incapable of
premeditation, an essential element of first-degree murder under Tennessee law”9; and (2) that in
concluding otherwise, “the state courts unreasonably applied Strickland.” (Id. at 21).
8 Typically, when habeas relief is granted as to the guilt phase of a case, it is typically in the form of a
conditional grant of the writ, meaning that the court orders that the petitioner either be retried in a reasonable
period of time or released. See, e.g., Eddleman v. McKee, 586 F.3d 409, 413 (6th Cir. 2009); Patterson v.
Haskins, 470 F.3d 645, 649 (6th Cir. 2006).
9 It is telling, and consistent with a footnote above, that the Magistrate Judge described these claims as an
attack only on the first-degree murder conviction, and not also as an attack on the aggravated kidnapping
conviction.
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After conducting her analysis, the Magistrate Judge recommends granting habeas corpus
relief, finding that the Tennessee Supreme Court unreasonably applied Strickland in making a
determination (which the Court at times below refers to as the “Guilt-Phase Decision”) that the
Magistrate Judge described in two different ways: (i) “that [trial] counsel’s investigation of
Davidson’s mental health and intellectual capacity was adequate for purposes of [the guilt phase
of] trial, (id. at 25), (ii) that trial counsel “made a reasonable tactical decision to abstain from
presenting psychological evidence during the guilt phase of trial,”10 (id. at 37) (quoting Davidson,
453 S.W.3d at 403-404)); and (iii) “that a strategic decision could be supported by a plainly
inadequate investigation is an unreasonable application of Strickland,” (id. at 41).
As for what was unreasonable about the Guilt-Phase Decision, the Magistrate Judge
initially explained it in terms of a sort of internal inconsistency in the Tennessee Supreme Court’s
opinion. That is, she first stated that the Guilt-Phase Decision “cannot be squared with its holding
that the same investigation was inadequate for purposes of sentencing.” (Id. at 25). (Notably, the
Court below at times refers to the Tennessee Supreme Court’s determination at sentencing the
“Sentencing-Phase Decision”). But it seems to the Court that the Magistrate Judge instead, or at
least alternatively, found the Guilty-Phase Decision unreasonable because she believed it was
flawed in its own right. This is apparent from the Magistrate Judge’s remarks in the R&R, right at
the place where she found trial counsel’s performance deficient as alleged in the four IATC claims;
there she addressed whether the Guilty-Phase Decision was unreasonable on its own terms, without
10 It is clear that the Magistrate Judge was faulting the Tennessee Supreme Court in connection with what
she viewed as a single decision. And it is also clear that the Magistrate Judge was describing that decision
in two different ways. The Court accepts that what the Tennessee Supreme Court did—unreasonably, in
the view of the Magistrate Judge—so as to warrant relief (in the Magistrate Judge’s view) was a single
thing. As for the most appropriate way to describe the Guilty-Phase Decision—something that is important
to identify for purposes of analyzing whether what the Tennessee Supreme Court did was unreasonable—
the Court will make its own determination as part of its de novo review and will conduct its de novo analysis
accordingly.
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necessarily tying the other to that question to whether the Guilty-Phase Decision was consistent
with the Sentencing-Phase Decision:11
Counsel’s failure to investigate Davidson’s intellectual limitations and
mental 	health 	history 	before 	trial 	fell 	below 	the 	objective 	standard 	of
reasonableness for effective assistance of counsel at trial and at sentencing. The
Tennessee Supreme Court’s determination that a strategic decision could be
supported by a plainly inadequate investigation [one of the Magistrate Judge’s three
ways of describing the Guilty-Phase Decision] is an unreasonable application of
Strickland.
(Id. at 41) (citations omitted). This language also revealed (albeit not with the express granularity
the Court feels compelled to, and will, set forth immediately below) the Magistrate Judge’s view
as to why the Guilty-Phase Decision was unreasonable. The reason, which was two-fold, was
prefaced on a proposition on which the Magistrate Judge and Tennessee Supreme Court actually
agreed: “[c]ounsel[ ] fail[ed] to investigate Davidson’s intellectual limitations and mental health
history before trial.”12 (Doc. No. 90 at 41). Given this failure, the Magistrate Judge in effect was
saying, the Guilty-Phase Decision was unreasonable because it embodies the views (both of which
the Magistrate Judge believed to be unreasonable) that (i) trial counsel could have and did make a
strategic decision not to introduce Davidson’s intellectual limitations and mental health history at
the guilt phase, and (ii) trial counsel’s performance therefore was not deficient at the guilt stage.
11 True, the Magistrate Judge did indicate that she viewed counsel’s performance at the guilty phase as
being deficient for the same reason that (as found by the Tennessee Supreme Court) it was deficient at the
sentencing phase: “Counsel[ ]fail[ed] to investigate Davidson’s intellectual limitations and mental health
history before trial . . . .” (Doc. No. 90 at 41). But this is not the same thing as saying that if a court found
the performance deficient at sentencing based on failure to investigate, the court would necessarily have to
find that the performance was deficient also at the guilt phase because otherwise the decision as to the guilt
phase would automatically be unreasonable. At this point of the R&R, the Magistrate Judge did not say
such a thing and thus did not rely on such a thing. What the Magistrate Judge appeared to be saying instead
was that the performance was deficient at the guilty phase just as it was deficient at the sentencing phase,
and for the same reason—an insufficient investigation of Davidson’s intellectual limitations and mental
health history before trial.
12 In context, it seems clear that the Magistrate Judge’s reference here to a failure to investigate was a
reference not to a failure to do any investigation whatsoever, but rather to a failure to do a complete
investigation.
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It is worth noting here four things. First, in the Court’s view, what the Court has just
recounted is the Guilty-Phase Decision. That is, to state it in reverse order, the Guilt-Phase
Decision is the two-fold determination that (a) trial counsel’s performance was not deficient at the
guilt phase (b) because trial counsel made the strategic determination not to introduce at the guilt
phase evidence of Davidson’s intellectual limitations and mental health history. Second, only one
of the two parts of the Guilt-Phase Decision is independently denounced by the R&R. That is, the
R&R does not dispute that if part (b) of the Guilt-Phase Decision survives scrutiny under the
AEDPA, then part (a) also survives such scrutiny. Third, and conversely, if part (b) of the Guilty-
Phase Decision does not survive such scrutiny, then part (a) does not survive such scrutiny, either.
And fourth, the upshot of all of this is that whether the Guilt-Phase Decision survives scrutiny
turns entirely on whether part (b) survives such scrutiny.
The Magistrate Judge concluded that part (b) does not survive such scrutiny. As indicated
above, the Magistrate Judge concluded that Davidson’s trial counsel simply could not have known
enough, based on a mere “cursory investigation,” to make a strategic decision in either the guilt
phase or the sentencing phase. (Doc. No. 90 at 38, 40-41). This reasoning is reminiscent of the
opinion (concurring in part and dissenting in part) of Justice Wade:
While the majority has properly ruled that the failure of trial counsel to present
mental health evidence as mitigation during the penalty phase resulted in prejudice
to [ ] [Davidson], I believe that the same rationale should extend to the guilt phase
of the trial. Because of their inadequate preparation as to [ ] [Davidson]’s medical
history, his trial attorneys were unable to make an informed choice to forgo the
presentation of this important evidence at trial. As stated, premeditation is an
essential element of first degree murder. Severe mental defects might be considered
by a jury as having an adverse effect upon the ability to exercise “reflection and
judgment” as required by statute.
Davidson, 453 S.W.3d at 406-10. Sharing Justice Wade’s perspective, the Magistrate Judge
concluded that the Tennessee Supreme Court unreasonably applied Strickland in determining that
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a strategic decision could be and was made in the guilt phase when it was based on an investigation
into Davidson’s intellectual limitations and mental health history that was—as the Tennessee
Supreme 	Court 	found 	in 	granting 	relief 	with 	respect 	to 	the 	sentencing 	phase—“plainly
inadequate.” (Doc. No. 90 at 41). The Magistrate Judge also said something somewhat different
(and more specific) about what was wrong with the Tennessee Supreme Court’s view:
The Tennessee Supreme Court’s holding that counsel’s investigation of Davidson’s
mental health and intellectual capacity was adequate for purposes of trial cannot be
squared with its holding that the same investigation was inadequate for purposes of
sentencing and constitutes an unreasonable application of Strickland.
(Doc. No. 90 at 25). This block quotation reflects the Magistrate Judge’s view that the Guilt-Phase
Decision was unreasonable for the specific reason that (in the Magistrate Judge’s view) it was
irreconcilable with the Sentencing-Phase Decision.13
In finding that Davidson made a showing of deficient performance at trial as well as
sentencing, the Magistrate took the sequential step to the prejudice prong under Strickland.
However, Davidson did not challenge the Tennessee Supreme Court’s finding in relation to the
sentencing phase. That analysis was conducted by the Magistrate Judge de novo, which was proper
because the Tennessee Supreme Court (having found no deficient performance at the guilt phase)
never reached the issue of prejudice at the guilt phase.
Relying in large part on “the Tennessee Supreme Court majority’s finding that the
sufficiency of the evidence supporting premeditation was a ‘close’ question and the dissenting
justices’ finding that such evidence was ‘woefully lacking,’” (id. at 43), the Magistrate Judge
concluded that there is a reasonable probability that but for trial counsel’s failure to thoroughly
13 But whatever the rationale for the Magistrate Judge’s finding that the Guilt-Phase Decision was
unreasonable, the Court’s task here is to assess the Guilty-Phase Decision de novo, without necessarily
undertaking to critique the Magistrate Judge’s particular rationale for her finding.
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investigate Davidson’s intellectual capacity and mental health history before trial, Davidson would
not have been convicted of first-degree, premeditated murder. (Id. at 44) (citations and quotation
marks omitted). Therefore, the Magistrate Judge determined de novo14 that Davidson was
prejudiced by trial counsel’s deficient performance at the guilt phase. (Id. at 41, 44).
OBJECTIONS
In his objections, Respondent addresses only the four IATC claims on which the Magistrate
Judge recommends granting relief to Plaintiff. As to the R&R’s treatment of those claims,
Respondent raises two objections: (1) the Magistrate Judge failed to properly defer to the
Tennessee Supreme Court’s application of the performance prong under Strickland; and (2) the
Magistrate Judge erroneously assessed the prejudice prong under Strickland. (Doc. No. 94 at 3, 7).
First, Respondent objects to the Magistrate Judge’s findings regarding trial counsel’s
deficient performance, claiming that the Magistrate Judge improperly evaluated the reasonableness
of the Tennessee Supreme Court’s application of Strickland by “essentially conduct[ing] an
independent analysis” of trial counsel’s performance to arrive at the conclusion she believes to be
correct, rather than properly deferring to the Tennessee Supreme Court’s application of the
performance prong under Strickland. (Doc. No. 94 at 2-3).
Second, Respondent objects to the Magistrate Judge’s analysis of the prejudice prong under
Strickland. (Id. at 7). Respondent asserts that the R&R “failed to account for any of the possible
rebuttal evidence, instead focusing ‘solely on mere outcome determination, without attention to
whether the result of the proceeding was fundamentally unfair or unreliable.’” (Id. at 9) (quoting
14 As to why her examination of prejudice at the guilt phase was de novo, the Magistrate Judge explained
that de novo review of prejudice is required whenever—as in the present case with respect to the guilt
phase—the state courts, contrary to the federal judge, found the representation adequate and thus never
reached the issue of prejudice. (Doc. No. 90 at 41). As discussed below, the Magistrate Judge was correct
to review the issue of prejudice de novo.
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Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)). Respondent argues that this approach is improper,
as “a reviewing court must ‘consider all the evidence—the good and the bad—when evaluating
prejudice.’” (Id.) (quoting Wong v. Belmontes, 558 U.S. 15, 26 (2009) (citing Strickland, 466 U.S.
at 695-96) (remaining citations omitted)).
DISCUSSION
The Court above has described not just the Magistrate Judge’s findings as to which
objection has been made, but also the rationale for those findings. Describing such rationale is
helpful for placing into context the issues raised for the Court via Respondent’s objections. It is
also helpful for indicating potential resolutions of those issues; that is, to the extent that the Court
ends up agreeing with the Magistrate Judge’s rationale, the discussion of her rationale has indicated
the Court’s view of how the issues raised by the objections should be resolved. But the Court notes
that under 28 U.S.C. § 636(b), its task is not actually to critique, or to approve or disapprove, the
rationale of the Magistrate Judge; and its task certainly is not to decide whether the Magistrate
Judge’s rationale was reasonable. Rather, its task is to “make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1)(C). And so that is what the Court will do below, providing a de
novo review of the two issues as to which the Magistrate Judge made a recommendation to which
Respondent objected, without dwelling much on what the Magistrate Judge had to say about those
issues and without deferring to the Magistrate Judge’s decision in any way.
The Court has reviewed the objections, the Magistrate Judge’s findings, and other relevant
parts of the record, to assess de novo the parts of the R&R implicated by the Objections, namely
(i) the finding that the Guilt-Phase Decision was unreasonable; (ii) the finding that such deficient
performance was prejudicial to Davidson; and (iii) the corresponding finding that Davidson should
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be granted habeas relief (in a form that, as noted in a footnote above, the R&R did not specify).
On de novo review, the Court does not fully agree with Respondent’s objections to the R&R. But
when assessing de novo the parts of the R&R implicated by those objections, the Court finds it
cannot adopt the Magistrate Judge’s recommendation to grant Davidson relief as to the guilt phase.
As an initial matter, the text of the Amended Petition makes clear to the Court that
Davidson contests only his convictions (primarily the one for first-degree murder and secondarily
the one for aggravated kidnapping), seeking a new trial as to guilt,15 and does not independently
contest his sentence. (Doc. No. 25 at 1). That is, except to the extent that the vacatur of his
conviction naturally would result in the vacatur of any sentence from that conviction, Davidson
does not challenge his sentence (and certainly, and unsurprisingly, does not challenge the
15 In the Amended Petition, Davidson asserts that “this Court should grant the petition for writ of habeas
corpus, declare unconstitutional Petitioner’s convictions for first-degree murder and aggravated kidnaping,”
(Doc. No. 25 at 1). This raises the question of the extent to which the Court’s analysis herein should focus
on the conviction for aggravated kidnapping separately from the conviction for first-degree murder. In
addressing this question, the Court keeps in mind that the Court herein is addressing objections that relate
solely to the four IATC claims.
Davidson refers to his aggravated kidnapping conviction in one (and only one) of the four IATC claims
(2e) in the Amended Petition (id. at 12), but the reference does not appear in relation to the four IATC
claims in any filings that post-date his Amended Petition, including Davidson’s reply to Respondent’s
response to the Amended Petition (Doc. No. 47) and Davidson’s supplemental briefing (Doc. No. 80). The
recent absence of such reference suggests to the Court that Davidson has abandoned a challenge to the
aggravated kidnapping conviction on any grounds other than grounds related to his first-degree murder
conviction. Moreover, a mere reference to this conviction—unaccompanied by any substantive argument
or evidence—does not suffice to make a habeas claim. It is not the responsibility of this Court to flesh out
skeletal claims. McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997) (“It is not sufficient for a party
to mention a possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones.”),
quoted in Warman v. Mount St. Joseph Univ., 144 F.4th 880, 896 (6th Cir. 2025).
Thus, for purposes of reviewing Davidson’s remaining IATC claims for which he seeks habeas corpus
relief and as to which Respondent has lodged objections, the Court will consider trial counsel’s performance
only as it relates to Davidson’s first-degree murder conviction. To be clear, however, were the Court to find
relief warranted as to Davidson’s first-degree murder conviction based on arguments that Court believes
apply also to the aggravated kidnapping conviction, the Court would grant relief also on the aggravated
kidnapping charge.
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Tennessee Supreme Court’s decision to vacate his death sentence). Accordingly, the Court’s
review is limited to the guilt phase (at which Davidson was convicted).
As indicated above, Davidson’s entitlement to federal habeas relief requires that the state
court’s resolution of his claim of ineffective assistance of trial counsel under Strickland “resulted
in a decision that was contrary to, or involved an unreasonable application of, clearly established
federal law, as determined by the Supreme Court of the United States.” See 28 U.S.C. § 2254(d).
As further indicated above, to be actionable under § 2254(d)(1), a state court’s unreasonable
application of Supreme Court precedent “‘must be objectively unreasonable, not merely wrong;
even clear error will not suffice.’”16 Woods v. Donald, 575 U.S. 312, 316 (2015) (quoting White
v. Woodall, 572 U.S. 415, 419 (2014)); see also Williams, 529 U.S. at 411 (“[A] federal habeas
court may not issue the writ simply because it concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law erroneously or incorrectly.”).
Instead, the petitioner “must show that the state court’s ruling on the claim being presented in
federal court was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fair[-]minded disagreement.” Harrington
v. Richter, 562 U.S. 86, 103 (2011). “This standard, we recently reminded the Sixth Circuit, is
difficult to meet.” White, 572 U.S. at 419 (internal quotation marks omitted). Due to this highly
deferential standard for evaluating state-court rulings, state-court decisions must be given the
benefit of the doubt. Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).
(1) Trial counsel’s performance at the guilt phase
16 Herein, the Court at times uses (as did the Magistrate Judge) the shorthand term “unreasonable” to
describe a decision that “involved an unreasonable application of[ ] clearly established federal law, as
determined by the Supreme Court of the United States.”
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Respondent’s first objection to the R&R asserts that the Magistrate Judge eschewed
properly deferring to the Tennessee Supreme Court’s application of Strickland, by “essentially
conduct[ing] an independent analysis” of trial counsel’s performance to arrive at the conclusion
she believes to be correct. (Doc. No. 94 at 6). This objection calls for a de novo review of
Davidson’s IATC claim as to the guilt phase—i.e., the claim (contrary to the Tenneessee Supreme
Court’s Guilt-Phase Decision) that at the guilt phase Davidson’s trial counsel provided ineffective
assistance of trial counsel that was prejudicial.
Under the AEDPA, to establish the deficient-performance requirement, Davidson must
demonstrate that it was objectively unreasonable for the Tennessee Supreme Court to conclude
that Davidson had not overcome the strong presumption of competence of his trial counsel during
the guilt phase of his trial in relation to his first-murder conviction. Harrington, 562 U.S. at 104
(citing Strickland, 466 U.S. at 688-89). Put in more case-specific terms, the pivotal question for
the Court is whether the Tennessee Supreme Court’s application of that requirement was
unreasonable, which is far different from the Court asking (itself) whether (in its own view) trial
counsel’s performance fell below Strickland’s standard. See Harrington, 562 U.S. at 101. “Were
[the latter question] the inquiry, the analysis would be no different than if, for example, this Court
were adjudicating a Strickland claim on direct review of a criminal conviction in a United States
district court.” Id. Moreover, “[a]n unreasonable application of federal law is different from an
incorrect application of federal law.” Id. (internal quotation marks omitted). That is to say, it is
something rarer and harder for a petitioner to demonstrate the former (as required) than the latter
(which is insufficient).
To assess de novo whether the Guilt-Phase Decision was unreasonable, the Court begins
by setting forth, in full, the Tennessee Supreme Court’s justification for it:
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[C]ounsel 	made 	a 	reasonable 	tactical 	decision 	to 	abstain 	from 	presenting
psychological evidence during the guilt phase of trial. Counsel was legitimately
concerned that presenting any psychological evidence could open the door for the
State to show the jury the alarming statements from Mr. Davidson’s mental health
records that revealed his malignant misogyny and his propensity to commit sexual
violence. Ensuring that this evidence remained inadmissible was a reasonable
strategy.
453 S.W.3d at 403–04 (citations omitted). Consistent with the Magistrate Judge’s view, the Court
believes that this rationale is highly questionable because it is based on the conclusion that trial
counsel made a “reasonable tactical choice,” which in this context is to say a reasonable strategic
choice.17 That conclusion is itself highly questionable. As the Tennessee Supreme Court itself
found, trial counsel did not make a complete investigation (which in this context is synonymous
with “reasonable” investigation) into Davidson’s psychological condition. And as noted above,
strategic choices “are reasonable precisely to the extent that reasonable professional judgments
support the limitations on investigation.” Strickland, 466 U.S. at 691. “In other words, counsel has
a duty to make reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary.” Id. In the Court’s view, there is no question that trial counsel did not
make a reasonable investigation into Davidson’s psychological condition,18 and so trial counsel
could not have made a reasonable strategic choice not to present evidence of Davidson’s
psychological condition unless they did at least one of two different (albeit similar-sounding)
17 The term “tactical” generally means something different from “strategic,” with the former generally
referring to more narrow or limited considerations, and the latter to broader or more sweeping
considerations. But here, there is no indication that the Tennessee Supreme Court meant for the term to
mean anything other than “strategic,” the term usually used in this sort of context.
18 It appears undisputed that, as the Tennessee Supreme Court found, counsel “perform[ed] a cursory
investigation of Mr. Davidson’s mental and social history, and briefly enlisted the help of others.”
Davidson, 453 S.W.3d at 398. And since the investigation was only “cursory” (or “truncated,” to use the
Tennessee Supreme Court’s other descriptor for it), it indisputably was not “reasonable.”
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things: (1) made a reasonable professional judgment to limit the investigation; and (2) made “a
reasonable decision that ma[de] [a reasonable] investigation[ ] unnecessary.” Id.
Here, based on the findings of the Tennessee Supreme Court itself, there is no basis to
conclude that trial counsel did either of these things. As the Tennessee Supreme Court found,
“[w]hen he appeared at a November 2006 post-conviction hearing, Mr. Goodlett was unable to
give a satisfactory explanation for his truncated investigation other than that he was harried and
overworked.” 453 S.W.3d at 399.
The record thus fails to support (and runs directly counter to) the conclusion that trial
counsel made a reasonable professional judgment (or indeed any professional judgment) to limit
the investigation. The investigation was truncated due to trial counsel being harried and
overworked, not based on any judgment by trial counsel about anything whatsoever.
The record likewise fails to support (and runs directly counter to) the conclusion that trial
counsel made a reasonable decision (about something relevant) that somehow made a reasonable
investigation unnecessary. Most pertinently, the record fails to support (and runs directly counter
to) the conclusion that trial counsel made a reasonable decision not to present mental-health
evidence and that this somehow made a reasonable mental-health investigation unnecessary; that
is because in the Court’s view, a decision not to present mental-health evidence could not be
reasonable unless it was based on a reasonable mental-health investigation. True, the record
reflects that trial counsel’s decision not to present mental-health evidence was based on trial
counsel’s reasonable concerns that such a presentation could result ultimately in a presentation to
the jury of evidence damaging to Davidson. And since trial counsel’s decision was based on a
reasonable concern, one might be tempted to conclude that the decision was reasonable. But to say
that a decision is based on a reasonable concern is not to say that the decision was reasonable.
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By way of illustration,19 imagine someone—based solely on concerns regarding reported
risks of sunscreen use—declining to wear any sunscreen while regularly sitting out on a beach for
many hours at a time, with most skin exposed to a blazing sun, for many years. The concern
underlying the decision not to wear sunscreen may well be a reasonable one. But that does not
necessarily mean that the decision was reasonable under the circumstances, i.e., the regular and
prolonged exposure to the sun; it strikes the undersigned as reasonable only to the extent that the
decision takes into account the countervailing benefits of wearing sunscreen (which in this
example clearly could be) after a reasonable inquiry into those benefits. In other words, a decision
that is based on a reasonable concern about the costs of a particular course of action (here, wearing
sunscreen) is not necessarily (and in many cases surely is not) reasonable, if it fails to balance the
costs against the benefits of that course of action as perceived by the decision-maker after a
reasonable investigation of the extent of those benefits.
So too in the case of Davidson’s trial counsel deciding not to present mental-health
evidence. Though based on a reasonable concern about the risks of such presentation, trial
counsel’s decision was not necessarily (and in the Court’s view was not) reasonable, because it
failed to account for the potential benefits of such presentation—and indeed could not have
accounted for those potential benefits, because there was no reasonable investigation into those
19 The following is among many sources that provide background for this example:
“The recent findings that sunscreen ingredients can be found in the bloodstream after use
and that some sunscreens contain benzene give consumers reason for concern,” notes Dr.
[Alok] Vij. “While it’s hard to prove or disprove a link between sunscreen and cancer, we
know that for most people, the benefits of using a mineral-based sunscreen — like
lowering the risk of skin cancer and slowing down the aging process — far outweigh the
risks.”
Is Sunscreen Bad for You?, https://health.clevelandclinic.org/is-sunscreen-bad-for-you (last accessed
October 1, 2025).
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potential benefits. This conclusion strikes the Court as entirely unexceptional because it is no
mystery that strategic decisions at trial must account for both the (potential) costs and the
(potential) benefits of the options between which trial counsel is choosing, based on a reasonable
understanding of those potential benefits (as informed by a reasonable investigation as necessary).
This conclusion also strikes the Court as entirely consistent with the Tennessee Supreme Court’s
decision regarding trial counsel’s non-presentation of mental-health evidence at the sentencing
phase. For whatever reason, the Tennessee Supreme Court took a different approach as to the guilt
phase, but the Court perceives it to apply to the guilt phase just as it did to the sentencing phase.
In summary, the Court agrees with the Magistrate Judge that the Tennessee Supreme
Court’s Guilt-Phase Decision was erroneous. But under the AEDPA, it is not enough that the
decision is erroneous; mere erroneousness is insufficient. The Court will re-state here verbatim
what it stated above because it bears repeating:
A state court’s unreasonable application of Supreme Court precedent “‘must be objectively
unreasonable, not merely wrong; even clear error will not suffice.’”20 Woods v. Donald, 575 U.S.
312, 316 (2015) (quoting White v. Woodall, 572 U.S. 415, 419 (2014)); see also Williams, 529
U.S. at 411 (“[A] federal habeas court may not issue the writ simply because it concludes in its
independent judgment that the relevant state-court decision applied clearly established federal law
erroneously or incorrectly.”). Instead, the petitioner “must show that the state court’s ruling on the
claim being presented in federal court was so lacking in justification that there was an error well
understood 	and 	comprehended 	in 	existing 	law 	beyond 	any 	possibility 	for 	fair[-]minded
disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). “This standard, we recently
20 Herein, the Court at times uses (as did the Magistrate Judge) the shorthand term “unreasonable” to
describe a decision that “involved an unreasonable application of[ ] clearly established federal law, as
determined by the Supreme Court of the United States.”
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reminded the Sixth Circuit, is difficult to meet.” White, 572 U.S. at 419 (internal quotation marks
omitted). Due to this highly deferential standard for evaluating state-court rulings, state-court
decisions must be given the benefit of the doubt. Woodford, 537 U.S. 24. Indeed, since not even
clear error will suffice to meet this standard, it is fair to say that the standard is very difficult to
meet, and that state-court decisions must be given the benefit of even major doubts. Again focusing
on the reality that something beyond even clear error is necessary, and believing that a decision
that is beyond clearly erroneous (and for that matter beyond any possibility for fair-minded
disagreement) is a decision that borders on the absurd, the Court is constrained to conclude that
that a state-court decision meets this standard only if it approaches absurdity. Respectfully
disagreeing with the learned Magistrate Judge, the Court cannot conclude that the Tennessee
Supreme Court’s Guilt-Phase Decision—erroneous though it was—was flawed to this enormous
extent. For one thing, the Court’s conclusion (which matches the Magistrate Judge’s conclusion)
that the Guilt-Phase Decision was erroneous is not one that is glaringly erroneous; the Court can
aver that reaching that conclusion took the Tennessee Supreme Court a great deal of thought,
analysis, and reflection. Second, in the Court’s view, the nature of its analysis above reveals that
it is relatively easy to commit an analytical mistake that would lead to the Guilt-Phase Decision;
although erroneous, a jurist’s embracing of the Guilt-Phase Decision did not require—and was not
the result of—something well-nigh absurd like, for example, (a) ignoring an obviously applicable
analytical approach or controlling case, (b) overlooking or misperceiving an obvious crucial fact,
or (c) making the most elementary of mistakes in logical reasoning.21
21 One such mistake, for example, would be along the lines of erroneously concluding that because all
squares are rectangles, all rectangles are squares; another would be erroneously concluding that if A=B and
B=C, it is not necessarily true that A=C.
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Accordingly, the Court cannot adopt the Magistrate Judge’s recommendation to find,
contrary to the Guilt-Phase Decision, that trial counsel’s performance was deficient for purposes
of Strickland. The Court notes that things might be different if its review was deferential rather
than de novo; if the question for the Court was whether the Magistrate Judge had a substantial
basis for her conclusion that the Guilt-Phase Decision met this very demanding standard, perhaps
the Court would adopt the Magistrate Judge’s recommendation. But unfortunately for Davidson,
that is not the nature of the Court’s review, and that is not the question. The law (for better or for
worse) is very clear: in the federal habeas context, a state-court decision is entitled to deference—
enormous deference—and a magistrate judge’s recommendation is entitled to none.
Given the strictures of the AEDPA, the Court cannot find that trial counsel’s performance
was deficient for purposes of Strickland. Therefore, the Court must deny Davidson relief. Next,
the Court considers whether, Davidson must be denied relief alternatively for failure to show
prejudice within the meaning of Strickland.
(2) Prejudice at the guilt phase
Respondent raised one other objection, this one to the Magistrate Judge’s prejudice analysis
under Strickland. (Doc. No. 94 at 7). As background, the Court notes that the Magistrate Judge,
having found deficient performance at the guilt phase, went on to find that such deficient
performance was prejudicial to Davidson within the meaning of Strickland. Respondent asserts
that this finding is flawed and should not be adopted by the Court.
The Tennessee Supreme Court reached the prejudice prong as it relates to the sentencing
phase, finding that Davidson had been prejudiced by the deficient performance of trial counsel at
the sentencing phase and vacated Davidson’s death sentence:
We also find that counsel’s deficient performance prejudiced Mr. Davidson at his
capital sentencing hearing. Much like Sears v. Upton, although the evidence of Mr.
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Davidson’s profound personality disorder might not have made him “any more
likable to the jury,” the evidence could very well have helped the jury understand
how Mr. Davidson could have committed “such horrendous acts.” Sears v. Upton,
130 S. Ct. at 3264. An effective defense could have contextualized Mr. Davidson’s
prior hair-curling statements about women. See Sears v. Upton, 130 S. Ct. at 3264
(explaining that competent counsel can turn “adverse evidence” into something
positive, such as “a cognitive deficiency mitigation theory”). Instead, the jury heard
little that would “humanize” Mr. Davidson or help the jury “accurately gauge his
moral culpability.” Had his counsel been effective, the jury would have learned of
the “kind of troubled history” that is “relevant to assessing a defendant’s moral
culpability.’” Porter v. McCollum, 558 U.S. at 41, 130 S. Ct. 447 (quoting Wiggins
v. Smith, 539 U.S. at 535 [ ]).
We cannot escape the fact that “the available mitigating evidence, taken as a whole,
‘might well have influenced the jury’s appraisal’ of [Mr. Davidson’s] moral
culpability” and led to a sentence less than death. Wiggins v. Smith, 539 U.S. at 538
[ ] (quoting Williams v. Taylor, 529 U.S. at 398 [ ]). At least one member of the
jury could have decided that Mr. Davidson was less morally blameworthy (and thus
undeserving of death) in light of his lifelong history of psychosis, his frontal lobe
dysfunction, and the fact that his mental functioning was in some respects
equivalent to that of a nine- or ten-year old child. These post-conviction revelations
sufficiently undermine our confidence in the verdict to merit post-conviction relief.
We find a reasonable probability that, but for counsel’s failure to present
psychological mitigation evidence, the result of the sentencing trial would have
been different.
Davidson v. State, 453 S.W.3d at 405–06 (emphasis added). In short, at the sentencing phase, the
Tennessee Supreme Court found not only deficient performance, but also prejudice. But as noted
herein, Davidson’s challenge is not to the results of his sentencing phase, but rather to the results
of his guilt phase. And it was prejudice only at the guilt phase that the Magistrate Judge addressed
in the R&R. Notably, because it found no deficient performance at the guilt phase, the Tennessee
Supreme Court did not address prejudice at the guilt phase. So when the Magistrate Judge—having
found deficient performance at the guilt phase—examined prejudice at the guilt phase, she
examined the issue of prejudice de novo, without any deference to the state courts under the
AEDPA or otherwise. (Doc. No. 90 at 41) (quoting Rompilla, 545 U.S. at 390 (“Because the state
courts found the representation adequate, they never reached the issue of prejudice, and so we
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examine this element of the Strickland claim de novo . . . .) and Wiggins, 539 U.S. at 534 (stating
that federal-court “review is not circumscribed by a state court conclusion with respect to
prejudice, as neither of the state courts below reached this prong of the Strickland analysis”)). In
employing a de novo analysis of prejudice, the Magistrate acted entirely in line with Supreme
Court precedent.
Upon such examination, the Magistrate Judge concluded that “there is a reasonable
probability that, but for trial counsel’s failure to thoroughly investigate Davidson’s intellectual
capacity and mental health history before trial, Davidson would not have been convicted of first-
degree, premeditated murder.” (Doc. No. 90 at 44). It falls to the Court to review this conclusion
de novo, assuming arguendo (contrary to the Court’s determination above) that Davidson has
shown deficient performance by his trial counsel in the guilt phase. Just as indicated by the
Magistrate Judge in the R&R, to establish prejudice, a “defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” See Wiggins, 539 U.S. at 534 (quoting Strickland, 466 U.S. at 692).
“A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Harrington, 562 U.S. at 104 (quoting Strickland 466 U.S. at 694). It is not enough “to
show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693.
Counsel’s errors must be “so serious as to deprive the defendant of a fair trial, a trial whose result
is reliable.” Id. at 687.
It bears mentioning the uncertainty of the outcomes of the test for “reasonable probability.”
The uncertainty is fostered by several things. First, there seem to be three different verbal
formulations of the test for reasonable probability, not all of which necessarily would come out
the same way in the eyes on any particular jurist. Asking whether there is reasonable probability
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that, but for trial counsel’s errors, the result of the proceeding would have been different is different
from asking whether trial counsel’s errors were “so serious as to deprive the defendant of a fair
trial,” which in turn is different from asking whether trial counsel’s errors were so serious as to
deprive the defendant of a trial whose result is reliable. So when the rubber meets the road, what
is the assigned judge supposed to ask himself or herself when assessing whether the errors were
prejudicial? The Court perceives no clear answer to this question. Given that it is unclear what
question the Court is supposed to ask itself, the outcome of the inquiry into prejudice is naturally
subject to uncertainty.
The problem is compounded by the subjective nature of the key terms in each of the
respective tests. When/how/why does a result cross over the line between “reliable” and
“unreliable”? When/how/why does a trial cross over the line between “fair” and “unfair”?
When/how/why should a court’s confidence be “undermined”? Reasonable jurists often could
disagree as to how the quoted terms apply in a particular case and indeed could disagree (even
more fundamentally) about how to view these terms generally.
The Court opts not to embrace any of the three particular tests for “reasonable probability.”
Still less does the undersigned opt to attempt to apply multiples of these tests. Each of these
approaches strikes the Court as a fool’s errand, since it risks inconsistent outcomes that vary based
on the particular test used. Instead, the Court will ask itself the overarching question: was there (in
the Court’s view) a “reasonable probability” that the guilt-phase result would have been different
but for trial counsel’s errors, i.e., that Davidson would not have been convicted of first-degree
murder? This approach has its own drawbacks in terms of subjectivity. For one thing, what is a
“reasonable” probability? Also, how is a court to assess whether circumstances take a particular
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case over the line into “reasonable probability? What the undersigned jurist must do is apply the
“reasonable probability” standard as best he knows how, calling it like he sees it.
As Respondent alludes to via its objections, the probability of a different outcome at the
guilt phase is assessed, under Strickland, in light of the totality of the available exculpatory
evidence—both adduced at trial and in the habeas proceeding—and then weighed against the
inculpatory evidence. Sears v. Upton, 561 U.S. 945, 955–56 (2010) (citation and quotation marks
omitted). Respondent points to a strong example of this: had trial counsel introduced Davidson’s
mental health records, the jury (very likely) would have considered evidence of Davidson’s
fantasies of “chain[ing] a woman in his vehicle,” Davidson, 2013 WL 485222, at *10, and this
evidence would have dovetailed with the State’s circumstantial evidence that Davidson had “a
chain with a padlock around the passenger seat” of his truck and that he “told the police that [the
victim] may have been chained to a tree.” State v. Davidson, 121 S.W.3d 600, 615 (Tenn. 2003).
The Court agrees that this combination of evidence would “strongly suggest that [Davidson]
fulfilled his fantasy and would corroborate the physical evidence recovered from his truck and his
police statement.” (Doc. No. 94 at 9-10) (citing Davidson, 121 S.W.3d at 608, 615). That is, it
would strongly suggest the existence of premeditation—the very element of first-degree murder
that, according to Davidson, would have been missing (negated) but for trial counsel’s allegedly
deficient performance.
To explain why, the Court first notes that the mens rea required to convict Davidson of
first-degree 	murder 	was 	premeditation. 	Under 	Tennessee 	law, 	an 	act 	was 	done 	with
“premeditation” if it was “done after the exercise of reflection and judgment.” Tenn. Code Ann. §
39-13-202(d) (1995). The applicable statute provided, more specifically, that for the defendant to
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have acted with “premeditation,” “the intent to kill must have been formed prior to the act itself.”22
Id. The combination of evidence mentioned in the prior paragraph suggests that Davidson acted as
he did because he was motivated in advance to do so because of his fantasies. It therefore suggests
that he acted after the “exercise of reflection [on his fantasies] and judgment.”23
Respondent identifies additional evidence in Davidson’s mental health records that would
have reinforced the existence of premeditation by suggesting that Davidson acted after he
exercised such reflection and judgment: (1) Davidson is “inclined to commit rape and murder in
the future, and (2) Davidson identified his favorite activity was raping women and that he claimed
to have raped over one hundred women. (Doc. No. 94 at 10) (citing Davidson, 2013 WL 485222,
at *10)). “Although the records from Mr. Davidsons stay at MTMHI acknowledge his mental
illness and his troubled social history, his evaluators did not find that he was incompetent to stand
trial or incapable of committing a premeditated murder.” Davidson, 453 S.W.3d 390. In the Court’s
view, the record does not suggest a “reasonable probability”—as the Court construes that term—
of a different outcome from the jury regarding the first-degree murder. This is true even if the
aspects of Davidson’s mental-health record that tend to refute a theory of premeditation suggest a
possibility that a different outcome would have occurred had Davidson’s trial counsel presented
Davidson’s mental-health record. Therefore, the Court cannot find, assuming arguendo that trial
22 The statute also provided that conviction required the defendant to have been “sufficiently free from
excitement and passion as to be capable of premeditation.” Tenn. Code Ann. § 39-13-202(d) (1995). This
provision is unhelpful in that it gives no indication as to just how free from excitement a defendant must be
in order to be deemed to have acted with premeditation. And more to the point, it is not implicated by the
instant set of issues because no investigation of Davidson’s psychological condition would have shed any
light on the extent to which Defendant was “free from excitement” at the time the victim was murdered.
23 The “exercise of judgment” suggested by the evidence—though absolutely horrific and tragic—is indeed
“exercise of judgment” of a kind—namely, the exercise of the (dreadful) judgment that committing the acts
would be worth pursuing and consummating in order to fulfill Davidson’s fantasies.
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counsel’s deficiency was indeed deficient at the guilt phase in not presenting Davidson’s mental-
health history, and that such deficiency was prejudicial within the meaning of Strickland.24 So, for
this alternative reason, Davidson is not entitled to relief on the Amended Petition.
CONCLUSION
After the required de novo review of the portions of the R&R (Doc. No. 90) to which an
objection has been made, the Court adopts in part and declines to adopt in part the R&R.
As for declining to adopt the R&R in part, the Court concludes that despite agreeing with
many aspects of the R&R, it cannot adopt the recommendation of the R&R to grant Davidson’s
Amended Petition with respect to the IATC claims at the guilt phase (Claims 2d, 2e, 2f, and 2aa).
On the other hand, absent an objection to the portions of the R&R recommending denial of all of
Davidson’s other claims, those portions of the R&R are adopted.
As a result, the Amended Petition (Doc. No. 25) is DENIED in full, and the ruling of the
Tennessee Supreme Court is affirmed.
The Clerk is DIRECTED to enter judgment under Rule 58 and close the file.
ELI RICHARDSON
UNITED STATE DISTRICT JUDGE
24 Had its review of the Magistrate Judge’s (contrary) conclusion on this point been deferential, the Court
potentially could have adopted that conclusion because that conclusion is far from plainly wrong—
especially considering the malleable standards under which the Magistrate Judge was operating. But the
law dictates that the Court afford the Magistrate Judge no deference in this regard, and the Court happens
to see things differently. So (at least for now), the Court’s conclusion prevails even though the Court on the
instant de novo review does not need to and does not critique the Magistrate Judge’s reasoning—and does
not presume to say that the Magistrate Judge was “wrong.” The precise instant task for the Court is not to
determine whether (in its view) whether the Magistrate Judge was wrong on the issues of counsel’s
performance and prejudice, but rather to determine what (in the Court’s independent view) is the correct
resolution of those issues.
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