Steve Henley, Scheduled for Execution

February 4, 2009

SteveHenley.org

SERVICE AND VIGIL INFORMATION

In Nashville, a Service of Remembrance and Resistance will be held at 7:00 p.m. on Tuesday, February 3rd, at Brookmeade Congregational Church, 700 Bresslyn Road, Nashville, TN 37205. The Tennessee Coalition to Abolish State Killing (TCASK) and its members will later gather at Riverbend Maximum Security Institution at 12:00 a.m. to hold a candlelight vigil unless the execution has been stayed. Please dress warmly. Call TCASK if you have any questions before 5pm, (615) 256-3906, after 5pm, (615) 521-9985

Disparity of Sentences:

All of the evidence, including the motive for the crime, was provided by a co-defendant who served just over five years for his participation in the murder. The jury believed that Flatt would receive a 25 year sentence for his testimony, yet he was paroled after only 5 years in prison.

Inadequate Representation at Sentencing:

All of the evidence, including the motive for the crime, was provided by a co-defendant who served just over five years for his participation in the murder.

Appellate Court Judges Rule in Henley's Favor: A majority of appellate court judges have ruled that Mr. Henley's sentence should be commuted to life.

Summary of the Case

Steve Henley and Terry Flatt were convicted of the 1985 murders of Fred and Edna Stafford, an elderly couple living in Jackson County. All the evidence, including the motive for the crime, was provided by Terry Flatt, who made a deal with prosecutors and served just over five years. Steve Henley, who has maintained his innocence from the beginning, received the death sentence. Henley and Flatt had known each other about three months prior to the murders. What happened on July 24, 1985, is in dispute.

Terry Flatt's Account: Flatt and Henley bought and sold a transmission that day and were headed toward Pine Lick Road where Henley's grandmother and the Staffords lived around 6:30 p.m. Flatt said that Henley stated that there were some people there who owed him money and had wronged his grandmother. They passed the Stafford's house and noticed neighbors were visiting. Henley let Flatt out of the truck on the road near Henley’s grandmother's driveway.

Henley was gone about 5 to 10 minutes and came back with a .22 rifle. Henley drove about 50 or 75 yards down the road, put more shells in the rifle, filled a plastic jug with gasoline from a five gallon gas tank in his truck, and headed towards the Stafford’s home around 7:00 p.m. The Staffords were standing in the road by a newly opened bridge. Henley took a pistol from the truck and forced the Stafford's toward the house, ordering Flatt to get the rifle. About 30 feet from the house, Henley told Flatt to give him the rifle and to get the gas can. Henley then shot both the Staffords inside the house. When Flatt returned with the can, Henley threw him the rifle and shot Mrs. Stafford with a pistol in the hallway. The house was then set on fire.

Flatt and Henley left and hid the guns along Keeling Branch road as they headed to Gainesboro, about 15 minutes away, for Henley to see Harold Hix about a job. Upon leaving Hix's house, they met a patrol car who pulled them over and asked where the Stafford's lived. Henley then showed the officers Pine Lick Road.

Problems with Flatt's testimony:

Flatt initially lied to authorities about his involvement in the murders saying, "I don't know nothing about no shooting." However, after he implicated himself, he then provided information to the Sheriff. He also acknowledged in his testimony that when he talked to the Sheriff he may have brought up how he could get less time and in another statement said "nothing has really been promised, but we kindly had a little bit of an agreement, some kind of agreement."

The jury believed that Flatt would receive a 25 year sentence for his testimony, yet he was paroled after only 5 years in prison. Flatt also admitted to injecting Dilaudid, a powerful painkiller, twice the day of the murders, including a strong injection at 4:30 p.m. He had been using Dilaudid for seven or eight months prior to the crime. Flatt contradicted himself in his testimony stating on his way to Henley's grandmother's house, his mind was not very clear because of the Dilaudid injections and beer. Flatt later stated the events of the day were clear in his mind.

Steve Henley’s Account:

Henley spent the day preparing to work on a sprayer for a friend’s father and purchasing a transmission to sell. He picked up Terry Flatt in the morning because he thought he would need help loading the transmission. After picking up the transmission, he and Flatt bought a six pack of beer, and the two headed to Cookeville to sell the transmission. Later, Henley and Flatt headed to his grandmother’s house to pick up some parts for the sprayer. On the way, they stopped for more beer and when Henley came out of the market, Flatt was injecting Dilaudid.

They arrived at his grandmother's at around 6:30 p.m. Henley denies having any problem with the Staffords. Because Flatt was intoxicated, Henley did not want him near his grandmother so he dropped Flatt off below the bridge that goes to his grandmother's house past the Stafford's house. Henley kept a .22 rifle in his truck between the gear shift columns because he used it to shoot rabbits in his grandmother’s garden. Flatt wanted to keep the rifle in case he saw a rabbit to shoot. Henley and his grandmother both testified that he was with her for 30-45 minutes. His grandmother stated that he did not have the gun at her house that evening.

Henley went back down to the spot where he dropped Flatt off, and Flatt stepped out of the corn field across from where Henley left him. Flatt put the rifle behind the seat and got in. Flatt wanted to go to Gainesboro away from the Stafford house, but Henley wanted to go see Harold Hix about a job which took them by the Stafford's. Henley didn't notice anything unusual at the Stafford's since the corn was high and obscured his view. Henley came down Keeling Branch towards Hix's house, and the two stopped to go to the bathroom just off the road.

They arrived at Hix's house, and while Henley talked to Hix about the job, Flatt was in and out of the truck outside. Henley stated that he did not have a plastic container to transfer any gas. When they drove back from Hix’s house, a patrol car pulled them over, and officers asked where Fred Stafford lived. Henley drove them to the road, pointing toward Pine Lick Creek. He and Flatt headed toward Gainesboro, stopping for more beer. Henley only had $5 so he charged $2.50 to his friend's account, though Flatt testified that Henley had $131 in cash on him that he took from the Staffords.

Problems with the investigation:

On August 1, after Henley and Flatt were arrested, Flatt told Ishmul Wood of the Fire Marshall's office that he poured gasoline in a general area of the house though Wood took no samples nor did Wood take samples from the road where the gasoline had reportedly been poured from one can to another.

The shell casings were found on August 2, only after Flatt told authorities his story. Wood testified that he could not say whether the shells were placed at the scene before or after the fire and had no evidence that the fire was arson. The pistol was discovered a day or two after the rifle when the Sheriff instructed officials to go back and search the location of the rifle again. Henley testified that he did not recognize the pistol. Only one shell casing was found inside the house, the others outside.

Of the nine shells which were tested, only one was fired from the rifle, and it was not tested to see if it endured a fire. Further testimony revealed that the crime scene may not have been secured during the investigation. The state never produced the plastic gas can which Flatt claims Henley used. Furthermore, Henley interacted with a variety of people around the time of the murders, and no one noticed anything unusual about his behavior. Henley was picked up by the police a few days later on a contempt of court charge for owing money to Production Credit Association for a farming debt. Henley had filed for bankruptcy over his farming losses and was in a dispute over what he owed. His only prior conviction was for transporting stolen property across state lines in 1981, for which he got a two year sentence on probation.

In his sentencing hearing, Henley’s attorney made grave errors which led to Henley’s death sentence. His attorney never spoke to Henley’s family about testifying but in court, called Henley’s mother to the stand with no preparation. She asked the attorney to leave the courtroom to talk with her and was so terrified of saying something that would hurt her son that she would not take the stand. This decision left the jury with the impression that Henley’s mother did not want to testify on her son’s behalf, which could not have been further from the truth. His attorney then called Henley’s grandmother, who was also unprepared but did testify. This grossly inadequate representation by his attorney at sentencing led to a reversal of Henley’s death sentence by the Criminal Court of Appeals in 1996 only for it to be reinstated by the Tennessee Supreme Court.

How can two men who were together on the night of the murders receive two such different sentences? How can the word of a drug addict who implicated himself in the crime and with everything to lose secure another man’s death sentence? Steve Henley should not be executed with this much doubt in the case. In fact, a majority of appellate court judges (5-4) have ruled that Henley sentence should have received a life sentence. Now Henley faces execution on February 4, 2009. Now is the time to act. Please contact the Tennessee Parole Board 615-741-4543 and the Governor 615-741-2001 to ask that they commute Henley's sentence.

In Steve's Words

My name is Steve Henley. I am a 55 year old man who has spent the last 23 years on Tennessee’s death row for a crime I did not commit. I have said that I was innocent of this crime from day one, and my statement and story have never changed.

Because of my wrongful conviction and imprisonment, my two children grew up without a father and have suffered more than any person can imagine. I now have four grandchildren who face the same pain and fear. I pray that there is time to save my grandchildren from this pain; I have to put it in God’s hands because there is only so much a father and grandfather can do from a prison cell. Hopefully, with my faith and prayers, the good people in my life will help my family. Over the last 23 years, the cost that my family and I have paid for my false imprisonment is beyond my ability to express. However, I want to leave you with a small piece of my heart and mind as I tell you my side of the story.

On July 24, 1985, I believe that Terry Wayne Flatt robbed and murdered Fred and Edna Stafford. He then set fire to their home. I believe this to be true because Flatt implicated himself during questioning. The sheriff of Jackson County at the time, Wayne Mahaney urged Flatt to accept a plea bargain and turn state’s evidence against me. Flatt did this to save himself, but I believe that the Sheriff wanted to enable his friend to acquire my family’s three tracts of farmland and a home that my grandfather built with his own hands. There is a 12 minute audio tape detailing the deal made between Terry Flatt and Sheriff Wayne Mahaney. Sheriff Mahaney’s friend, Bobby Hunter, bought my family’s farm and home at an auction on the courthouse steps for $53,000. Bobby Hunter resides in the house to this day.

On August 1, 1985, both Flatt and I were driven to Nashville for polygraph tests, along with Sheriff Mahaney and Bobby Hunter's son, Tony Hunter. Tony Hunter had no association with the Sheriff’s Department or any other law enforcement office. Sheriff Mahaney knew the facts of my contempt of court charge involving the Production Credit Association for a farming debt, and when the interest charges grew large enough, and the land taxes had compounded, Mr. Hunter bought my family’s farm for a fraction of its worth.

An attorney was hired for Terry Flatt who was indigent. Flatt was a drug addict with a record. On the day of my trial, he walked into the courtroom wearing a three-piece pin-striped suit. The state relied on the expert testimony of the now discredited medical examiner, Dr. Charles Harlan, to support its theory.

So here I sit on death row. Meanwhile, Terry Flatt served only five years of a 25 year sentence.

I currently have a civil lawsuit pending against Jackson County and Sheriff Mahaney for the inhumane treatment I received in jail and the violation of my 8th amendment constitutional rights—that no man shall receive cruel and unusual treatment—along with the pain and mental torture that is still part of my life to this day.

In my heart and mind, I am pained by what the family of Fred and Edna Stafford has been through. They have endured great loss. If I am to give my life and be executed for a crime I did not commit, I respectfully ask for the help and prayers of the people who represent the victims of crime to scream out for Jackson County and Sheriff Mahaney to settle the lawsuit. At least, then, the family of Fred and Edna Stafford could have some measure of compensation for all the pain and stress that has been brought upon them.

This I wish for…this I pray for…for all the victims of this nightmare. I would ask you to remember that my family members are victims of this crime as well. I want to believe that, if District Attorneys Tommy Thompson and John Wooten had known that they were being lied to and given false information, they would not have prosecuted me.

In closing, I want to express my deepest and sincerest pain for Fred and Edna Staffords’ family. I have lost three members of my own family that I loved so very much, two of them during the first 3 years of my imprisonment. My grandfather died in 1976 and my grandmother in 1987. My only brother died in 1988. I know the pain that comes with losing family. It is a void and feeling of emptiness that never leaves you, and there is nothing you can do to change or ease that pain.

Only the passing time, and God’s love have helped me learn to go on. It is my last wish, my last desperate hope, and my most earnest prayer, that I ask my beloved Christian friends, who have loved and supported me for all these long and lonely years to please take care of my children and my grandchildren.

If I am to be executed on the words of bad men, I pray that good men and women will adopt my children who are suffering as a result.

Sincerely, Steve Henley

State v. Henley, 774 S.W.2d 908 (Tenn. 1989) (Direct Appeal).

Defendant was convicted, in the Criminal Court of Jackson County, Robert H. Bradshaw, J., of two counts of first-degree murder and one count of aggravated arson and sentenced to death. Defendant appealed. The Supreme Court, O'Brien, J., held that: (1) any errors resulting from remarks made by prosecutor during course of trial were harmless; (2) evidence, apart from accomplice's testimony, was sufficient to support convictions; (3) although jury verdict was possibly ambiguous with regard to degree of murder of which defendant was found guilty with respect to one victim, record made clear that verdict was guilty of first-degree murder of both victims; (4) death penalty was properly imposed and was not excessive punishment; and on petition to rehear, held that statutory aggravating circumstance regarding heinous and atrocious homicides was not unconstitutionally vague. Affirmed, and petition to rehear denied.

Henley v. State, 960 S.W.2d 572 (Tenn. 1997) (PCR).

Defendant sought post-conviction relief after the Supreme Court, 774 S.W.2d 908, affirmed his convictions and death sentences for aggravated arson and two counts of first degree premeditated murder. The Trial Court, Jackson County, J.O. Bond, J., denied application. Defendant appealed. The Court of Criminal Appeals reversed and ordered new sentencing hearing. State appealed. The Supreme Court, Drowota, J., held that: (1) facts that defendant's mother did not testify at penalty phase after she was called by defense counsel and that jury was not provided with any explanation did not require assumption of prejudice for purposes of ineffective assistance claim; (2) evidence supported finding that defendant suffered no prejudice from defense counsel's failure to present additional family members as witnesses during penalty phase; and (4) evidence supported finding that defense counsel's investigation of defendant's mental condition and failure to request mental evaluation for use in penalty phase did not constitute deficient performance. Judgment of the Court of Criminal Appeals reversed, and judgment of the trial court reinstated. Reid J., filed dissenting opinion in which Birch, J., joined.

DROWOTA, Justice.

In this post conviction proceeding, the trial court denied relief on all grounds alleged, and specifically found that the petitioner, Steve Henley, had been afforded his constitutional right to effective assistance of counsel at the sentencing phase of his capital trial. The Court of Criminal Appeals found that the evidence preponderated against the trial court's denial of relief with respect to the sentencing phase, and concluded that Henley had been denied his right to effective assistance of counsel because trial counsel had failed to adequately investigate and prepare witnesses to testify on Henley's behalf and had failed to adequately investigate Henley's mental condition and request that he undergo a mental evaluation. Accordingly, the Court of Criminal Appeals reversed Henley's sentence of death and ordered a new sentencing hearing.

Thereafter, we granted the State permission to appeal to determine whether the intermediate court erred in concluding that the evidence preponderates against the trial court's finding that Henley was afforded his right to effective assistance of counsel at sentencing. After carefully reviewing the record, we have determined that the evidence supports the trial court's finding. Accordingly the judgment of the Court of Criminal Appeals ordering a new sentencing hearing is reversed, and the trial court's decision denying the petition for post conviction relief on all grounds alleged is reinstated. FN1. Oral arguments were heard in this case on October 8, 1997 in Columbia, Maury County, as part of this Court's S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.

BACKGROUND

In 1986, the petitioner was convicted of aggravated arson and two counts of first degree premeditated murder for the killings of Fred and Edna Stafford, an elderly couple who were close neighbors to Henley's grandmother. According to the testimony of his co-defendant, Terry Flatt, the petitioner ordered both victims inside their home, shot them multiple times, and set their house on fire. The proof introduced at trial to establish the defendant's guilt was summarized by this Court on direct appeal as follows:

[T]he evidence showed that Fred and Edna Stafford lived on Pine Lick Creek Road in Jackson County, just a short distance from the farm, owned by Henley's family, where his grandmother lived. On the day of the Staffords' death Henley had visited his grandmother and obtained some mechanical parts for some work he was doing. Flatt was with him.

Earlier in the day they had been driving about, tending to business affairs of Henley's. During that time they had consumed some beer and also had taken some drugs, referred to in the record as Dilaudids. According to Flatt, as they passed the Staffords' residence Henley commented, ‘there was some people that lived on that road that owed his grandmother or grandfather some money, and they done him wrong, his grandparents wrong years before, and he was going to stop and see about collecting some money off them.’

Henley let Flatt out of the truck just before he reached his grandmother's house. When he returned five or ten minutes later he had a .22 rifle with him. They stopped fifty or seventy-five yards up the road where Henley loaded some more shells into the rifle. He also filled a plastic jug with gasoline from a five-gallon can he had in the back of the truck. They proceeded on toward the Stafford residence. When they reached there Mr. and Mrs. Stafford were standing on the left-hand side of the road looking at a small bridge where some construction work had recently been done, Henley stopped the truck, jumped out and told them, ‘I want your money, if you don't give it to me this man in the truck here, he's going to kill me.’ He then directed them to go to the house. Mr. Stafford said, ‘Steve, if you want money or something, I got $80, maybe $100, you can have it.’ He forced them on to the house at gunpoint and told Flatt to bring the .22 rifle as he followed behind them. When they got within 20 or 30 feet of the house he told Flatt to give him the rifle and go back to the truck and get the plastic jug of gasoline. Flatt did as directed.

As he reached the porch he saw Henley begin to shoot. He first shot Mr. Stafford then turned and shot Mrs. Stafford a time or two. While she was laying on the floor moaning and groaning he threw the rifle to Flatt, took out his pistol and shot her again with the pistol. He told Flatt to pour out some of the gas. Flatt endeavored to do as he was told and poured out a small amount. When he could not finish Henley took the container of gas from him and finished pouring it out. He then directed Flatt to light it. When Flatt said he could not he struck the match and as the flames went up they ran to the truck.

The house burned to the ground. The bodies of the Staffords were found in the ashes. All that remained of Mr. Stafford's body was part of the right leg and the trunk area. The body of Mrs. Stafford was similarly burned. It was determined that Mr. Stafford died from a gunshot wound to the chest with the bullet passing through his heart. Mrs. Stafford's death was caused by burns and inhalation of noxious gases from the fire. It was the opinion of the medical examiner that Mrs. Stafford lived a minute or longer after the fire began. State v. Henley, 774 S.W.2d 908, 912 (Tenn.1989).

At trial Henley maintained his innocence and attempted to discredit the prosecution's evidence, particularly the testimony of co-defendant Flatt which was crucial to the State's case. The defense showed that by testifying, Flatt had gained the benefit of a plea bargain agreement, pursuant to which, Flatt had been allowed to plead guilty to two counts of second degree murder, two counts of armed robbery and one count of aggravated arson. Flatt was sentenced as a Range I offender to twenty-five years for each of the murders, ten years for each of the robberies, and ten years for the arson, all to run concurrently, for an effective sentence of twenty-five years.

Testifying in his own defense, Henley adamantly denied all knowledge of and involvement in the murders and arson. Henley acknowledged that he had spent the day in the company of Flatt, and he admitted that he had drank some beer. However, Henley flatly denied that he was intoxicated or under the influence of drugs. Henley said he did not like to drink beer and had never abused drugs.

Henley testified that it was Flatt who was intoxicated and under the influence of the drug referred to in the record as Dilaudid. Henley said that he dropped Flatt off before arriving at his grandmother's house because of Flatt's intoxicated condition. Flatt left the truck with Henley's .22 gauge rifle planning to hunt rabbits. Henley said he proceeded to his grandmother's house and remained there for about forty-five minutes to an hour. Henley picked Flatt up when he left, but had no knowledge of Flatt's activities during the intervening time frame. Henley claimed that he did not see the fire at the Staffords' home and was not aware of their deaths until the next day. On cross-examination, Henley admitted that he previously had pleaded guilty to transporting stolen goods in interstate commerce. In addition, Henley admitted that he owed a substantial farming debt near the time of the killings and had filed for bankruptcy.

The defense called other witnesses during the guilt phase to corroborate Henley's testimony about his activities on the day of the murders and to provide background information about Henley's life. Henley's grandmother testified that around the time of the murders, Henley arrived at her home alone and stayed there for forty to forty-five minutes. On cross-examination, she admitted that she had seen Henley with the .22 rifle on Saturday before the Staffords were murdered on Wednesday.

After the jury convicted Henley of two counts of premeditated murder and arson, the case proceeded to sentencing. The State relied upon the proof it had presented at the guilt phase.

The defense offered further proof, first calling Henley's mother, who, in the presence of the jury said, “I want to talk to you Mr. Reneau.” Defense counsel, J.H. Reneau, III, requested and was granted a short recess. He exited the courtroom with Dorothy Henley. When the sentencing hearing resumed, she did not take the stand, and the jury was not given an explanation for her failure to testify.

Instead, the defense recalled Bertha Henley, the petitioner's seventy-five-year-old grandmother who testified that Henley, along with his parents, had lived in her household from the time he was born until he was two years old. In addition, Henley had spent every weekend and summer vacation thereafter in her home until he completed high school. She said that Henley had a very close relationship with his grandfather, and that, from a very young age, Henley had helped his grandfather with farm work.

She described Henley as a “good child” who “minded” her well and who “always loved” her. Henley married when he was eighteen-years-old, and had two children, Gregg and Leanne. Even after his marriage, however, Henley's close relationship with his grandparents continued. Though he and his family moved from Tennessee to Maryland, Henley returned to Tennessee when his grandfather was diagnosed with cancer in May of 1976 and lived with his family in a trailer across from his grandparents' home so that he could help his grandfather with the farm work.

After his grandfather died of cancer in July of 1976, Henley began working on the family farm full time and continued in that occupation from 1977 to 1983. During that time, Henley visited his grandmother almost everyday, and continued to check on her regularly thereafter. She could not drive because she had suffered a heart attack, so Henley would drive her to the doctor and into town once a week to pay bills and buy groceries. Henley's grandmother described him as a “tender hearted” person who would cry when his feelings were hurt. She said he had always been kind and good to her, ever willing to provide her with needed assistance. She told the jury that she loved Henley, the eldest of her four grandchildren, and did not want to see anything happen to him. The State did not cross examine Bertha Henley at the sentencing hearing.

Henley also testified about his relationship with his grandparents and how he had played and worked on the farm from a very young age. When asked why he stayed with his grandparents, rather than his parents, on the weekends and during his summer vacations, Henley replied, “I'd just love them more than anything in the world. There's no way to explain my granddaddy, I don't guess. He was just the best person in the world.” Henley recounted how he had given up his job in Maryland as a certified marine mechanic to return to Tennessee and assist his grandfather when he was diagnosed with cancer. Henley said he worked full time on the family farm from 1977 to 1983, and was successful for a time. His farming difficulties began with a drought in 1980 or 1981. To compensate for losses during the drought, he planted nearly seven hundred acres of wheat. Because of severe flooding, Henley was unable to harvest the wheat and lost his entire crop and ultimately was forced to file for bankruptcy protection. When trial counsel gave Henley the opportunity to make a final comment to the jury, Henley told the jurors, “I think each and everyone of you has made a mistake, and it's a mistake you all will have to live with. And one day and time when we're all, wherever we go, we'll all have to face that.” The State did not cross examine Henley at the sentencing hearing.

After hearing the proof, the jury sentenced Henley to death for both murders, finding that each murder was “especially heinous, atrocious, or cruel in that it involved torture or depravity of mind.” Tenn.Code Ann. § 39-2-203(I)(5) (1982). This Court affirmed the convictions and sentences on direct appeal. State v. Henley, 774 S.W.2d 908 (Tenn.1989).

Thereafter, Henley instituted this action seeking post conviction relief. Among other things, Henley alleged that he was denied his constitutional right to effective assistance of counsel at the sentencing phase of his capital trial. Henley alleged that trial counsel's failure to investigate and prepare family members to testify on his behalf deprived the jury of hearing proof of his good character and non-violent nature. In addition, Henley alleged that trial counsel's failure to completely investigate his mental condition and request a mental evaluation constituted ineffective assistance of counsel. At the time of the evidentiary hearing on the petition, both the original trial judge, Robert H. Bradshaw, and the sole trial defense attorney, J.H. Reneau, III, were deceased.

In support of his first claim, Henley offered the testimony of his mother, his two sisters, his two children, and his second wife. Dorothy Henley, the petitioner's mother, said that trial counsel had not contacted her prior to trial and that the only time he had spoken to her about testifying was during the recess she requested after he had called her to the witness stand at the sentencing hearing in the presence of the jury. Mrs. Henley admitted that she told trial counsel during the recess that she did not want to testify, but said she had refused to testify only because she had not understood the purpose of her testimony nor what she would have been expected to say on the witness stand. Had trial counsel explained to her the purpose of her testimony before the sentencing hearing, Mrs. Henley claimed she would have testified on behalf of her son.

Had she been properly prepared, Mrs. Henley said that she would have given testimony about her son's life, her love for him, and her belief that he would not have committed the crimes “if he was at his right mind.” She would have told the jury that Henley was a good son who had a close relationship with his grandparents and who had suffered financial losses because of the failure of his farming operation. On cross-examination, Mrs. Henley acknowledged that she had lived in Davidson county at the time of the murders and that she had little contact with her son during the year preceding the homicides. She conceded that she had no more information about Henley's background than what his grandmother had testified about at the sentencing hearing.

The petitioner's children, Greg and Leanne Henley, testified that they were not told about the petitioner's trial until it had concluded. These witnesses said that, had they been contacted by trial counsel, they would have given evidence that Henley was a good father. Greg was twelve or thirteen years old at the time of the trial and Leanne was ten or eleven years old. At the time of Henley's trial, both children lived with their mother, Henley's first wife. In an affidavit offered by the petitioner at the evidentiary hearing, their mother stated that she would have allowed the children to testify if she had been contacted by trial counsel.

Stefanie Robinson, the petitioner's younger sister testified that she had not been contacted by trial counsel, but said, had she been afforded the opportunity, she would have told the sentencing jury that Henley was a good brother and that he had been very upset when he could not pay the money he had borrowed against the family farm. According to Robinson, Henley was not a violent person. On cross-examination, Robinson admitted that she had seen the petitioner drink beer and smoke marijuana.

Patricia Woodard, the petitioner's older sister, said that she would have been willing to testify on Henley's behalf had she been contacted by trial counsel. Woodard would have told the jury that the petitioner had taught her to ride a bicycle when they were young, and that she had never seen the petitioner become violent. On cross-examination, Woodard admitted that she had lived in Carthage, Tennessee, for five years prior to the murders and had not spent a great deal of time with the petitioner in the years preceding his arrest and trial.

Cynthia Brown, the petitioner's second wife testified that, had she been contacted by trial counsel, she would have testified in Henley's behalf and told the jury that she had never seen Henley exhibit violent behavior and that he had been very kind to her son by a previous marriage and had intended to adopt the boy. On cross-examination, Brown admitted that Henley drank alcohol and used marijuana during their marriage.

With respect to the petitioner's second claim that trial counsel should have further investigated his mental condition, Henley offered the testimony of attorney Robert Massey who said that trial counsel should have engaged an independent psychologist to assist in the document gathering process and to do an examination of those documents to determine whether or not there would be any mitigation evidence that might be presented from those documents to the jury at the penalty phase. Mr. Massey had tried one death penalty case at the time of offering this testimony and had settled six others. He had never tried a case in Jackson county, nor had he been acquainted with the petitioner's original trial counsel.

The petitioner also offered the testimony of Dr. William D. Kenner, a psychiatrist who had interviewed Henley once for two hours in August of 1992, reviewed the results of tests administered by a licensed clinical psychologist, reviewed the interviews of family members conducted by post conviction counsel, and reviewed the trial testimony of Henley and co-defendant Flatt. Dr. Kenner had not spoken directly with Henley's family, nor reviewed the entire trial transcript, nor asked Henley to recount what trial counsel had talked about with him. Dr. Kenner did not question Henley's competency to stand trial, but said that Henley had been depressed at the time of the homicides because of his farming failures and may have been “self-medicating” by using alcohol and drugs. On IQ tests given, Dr. Kenner said that Henley had scored in the average range with a performance score of 109, a verbal score of 94, and a full scale score of 99.

According to Dr. Kenner, such a divergence between the performance score and the verbal score is often indicative of a learning disability. According to Dr. Kenner, a learning disability could have caused Henley to have difficulty managing his finances and could have been the actual cause of Henley's farming failures. Dr. Kenner also said that because of Henley's close relationship with his grandfather, losing the family farm was the equivalent to Henley of his grandfather dying a second time.

Finally, Henley testified at the post conviction hearing. On direct examination, Henley denied having any meaningful consultation with Reneau. Henley said that Reneau never asked him for a history of his life or for any personal records such as school or medical records. Henley also said that Reneau had not spoken with any of his family members about testifying at the sentencing hearing. The petitioner admitted that he had never asked his family members to testify in his behalf. Finally, Henley continued to maintain that he was innocent of the crimes for which he had been convicted and sentenced to death.

Upon hearing the proof, the trial judge denied the petition for post conviction relief on all grounds alleged. Though the trial court made no explicit finding with respect to the claim that trial counsel was ineffective because he failed to investigate Henley's mental condition and request an evaluation, with respect to Henley's claim that trial counsel should have prepared more witnesses for the sentencing phase, the trial court stated:

Heard a lot of witnesses about the sentencing phase. If there's any part of it that really-kind of bothers me a little bit, it's the sentencing phase, and I'll have to state that. I would have like to have had another witness maybe to have been put on. I would like for the mother to have testified when she refused. Now whether he had talked to her two days ahead of time or that day it really doesn't make much difference. If they went in the back room and he talked to her and she still didn't want to testify, maybe she had a reason. Maybe she had a reason then that she doesn't have now, I don't know. I do know this, the attorney asked her. So he come back and got the grandmother and she testified, and I thought did a beautiful job as far as words, the way they read. She answered the questions, she took him through his life, she told it. And the jury had basically everything that these witnesses the last two days have talked about in that record before them. They didn't have the numbers of people saying this, but they all knew about his family. They all knew about his grandmother, his granddaddy, they knew all about these things, it was all there. It wasn't repeated over and over by several people, but they did have that in the case when they looked at it. But again, I would have like to have seen another witness or two, but that's trial strategy. He may have thought that's enough. She may have done such a good job that he thought this is the best I'm going to get. That was the choice to make.

The petitioner appealed and the Court of Criminal Appeals held that the evidence preponderated against the trial court's finding that Henley had been afforded his right to effective assistance of counsel at the sentencing phase of the trial. Specifically, the Court of Criminal Appeals found that counsel's failure to adequately investigate and prepare witnesses to testify on Henley's behalf and to adequately investigate Henley's mental condition resulted in a denial of Henley's right to effective assistance of counsel at sentencing. Accordingly, the Court of Criminal Appeal's reversed Henley's death sentence and remanded for a new sentencing hearing.

Thereafter, we granted the State's application for permission to appeal to determine whether the Court of Criminal Appeals erred in concluding that the evidence preponderates against the trial court's finding that Henley was afforded his constitutional right to effective assistance of counsel at the sentencing hearing. For the reasons that follow, we reverse the judgment of the Court of Criminal Appeals and reinstate the judgment of the trial court denying post conviction relief.

*****

Though the trial court did not use the term, it is evident from its finding that the trial court concluded that the petitioner had failed to establish prejudice resulting from counsel's alleged failure to prepare and call witnesses. In denying post conviction relief, the trial judge observed that the sentencing jury “had basically everything that these witnesses the last two days have talked about in that record before them.”

In reversing the decision of the trial court, the Court of Criminal Appeals stated, “[w]e do not think it is assuming too much to conclude that a jury is going to be prejudiced against a defendant upon that person's own mother refusing to testify on his or her behalf.” As evidence of prejudice, the intermediate court quoted from the affidavit of a juror which was submitted as part of the petitioner's offer of proof at the post conviction hearing in which the juror said, “If a man's own mother won't testify on his behalf then we know what we've got to do.”

In addition, the intermediate court stated that, “[e]ven without this offer of proof, we hold that the dearth of favorable testimony offered at the sentencing hearing, when significant amounts of favorable testimony were available establishes a reasonable probability that, but for Mr. Reneau's deficient performance with respect to the sentencing hearing of Henley's trial, the result of the proceeding would have been different.”

Initially we note that the juror's affidavit statement regarding the effect on the sentencing jury of Dorothy Henley's failure to testify should not have been considered by the intermediate appellate court as proof of prejudice. Indeed, the affidavit should not have been considered for any purpose. Rule 606(b) of the Tennessee Rules of Evidence, expressly prohibits a juror from testifying or offering an affidavit “as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon any juror's mind or emotion as influencing that juror to assent to or dissent from the verdict ... ” (Emphasis added.)

In this case, the juror's affidavit related to the precise subject matter about which a juror is strictly forbidden from testifying by Rule 606(b)-the effect of the mother's failure to testify on the jury verdict. The affidavit violates the express terms of Rule 606(b) and should not have been considered by the intermediate court as evidence of prejudice. See State v. Stephenson, 878 S.W.2d 530, 554 (Tenn.1994)

Moreover, Henley's mother did not refuse to testify in the presence of the jury. Instead, she asked to first speak with trial counsel. Although the record reflects that she thereafter did not testify, at no time did she openly refuse to testify on Henley's behalf in the presence of the jury as the Court of Criminal Appeals decision indicates. In addition, the fact that the jury was not provided with an explanation as to why Dorothy Henley did not testify does not justify a finding of prejudice. The jury was instructed to base its sentencing decision on the evidence presented at trial, not upon speculation about why a particular witness did not testify. Jurors are presumed to follow the instructions given them in arriving at a verdict. State v. Laney, 654 S.W.2d 383, 389 (Tenn.1983); State v. Blackmon, 701 S.W.2d 228, 233 (Tenn.Crim.App.1985). Therefore, it is not appropriate to “assume” the defense was prejudiced because Henley's mother was not called as a witness in his behalf at the sentencing hearing. The fact that Dorothy Henley asked to speak with counsel when called as a witness and thereafter did not testify does not constitute a reasonable probability sufficient to undermine confidence in the outcome of the proceeding

Finally, the record does not support the Court of Criminal Appeals' statement that prejudice was established because there was a “dearth of favorable testimony offered at the sentencing hearing, when significant amounts of favorable testimony were available.” As was previously stated, when assessing the existence of prejudice in the face of an alleged deficiency involving counsel's failure to present mitigating evidence in the penalty phase of a capital trial, we consider whether substantially similar mitigating evidence was presented to the jury in either the guilt or penalty phase of the proceedings; the nature and extent of the mitigating evidence that was available but not presented; and whether there was such strong evidence of aggravating factors that the mitigating evidence would not have affected the jury's determination. Goad, 938 S.W.2d at 371 (citing cases).

In this case, the record fully supports the trial court's statement that, through the testimony of Bertha Henley and the petitioner, the original sentencing jury had before it basically the same favorable mitigation evidence that was offered by the many witnesses at the evidentiary hearing on the post conviction petition. As previously summarized herein, the jury heard extensive testimony about Henley's relationship with his grandparents, including his own testimony that he loved them more than anyone else in the world. It is difficult to imagine a more favorable and detailed description of the petitioner's character than that given by Bertha Henley. It is clear from the proof at trial and the evidentiary hearing in this case that the petitioner had a closer relationship with his grandmother, Bertha Henley, than with any other living family member. Indeed, the petitioner's own mother acknowledged that she could have offered no further information about Henley and his life than that given by Bertha Henley at the sentencing hearing.

Dorothy Henley admitted that in the years preceding the murders she had resided in Davidson County and had little contact with her son. On cross-examination, Dorothy Henley also admitted that she visited her son only a few times in jail before his trial. Overall, Dorothy Henley used very general terms to describe her relationship with her son. Similarly, Henley's older sister gave only general information about the petitioner, and conceded that she had little contact with her brother during the five years preceding the homicides.

While Henley's younger sister and second wife had closer associations with him near the time of the murders, both also had personal knowledge about his use of drugs, specifically marijuana, which was brought out during cross-examination at the evidentiary hearing. Had these two witnesses testified at the sentencing hearing, that same information, no doubt, would have been brought to light. In view of Henley's testimony throughout the trial that he had never abused drugs, the testimony of two family members to the contrary would have been extremely detrimental to the defense.

The only other testimony offered at the evidentiary hearing was that of Henley's children who claimed they would have testified had trial counsel contacted their mother with whom they were residing. However the children, eleven and thirteen years old at the time of the trial, admittedly were not informed about the trial until its conclusion.

Therefore, the witnesses which were available but not called as witnesses at the original trial, would have offered general, vague testimony about the petitioner's character, and the evidence regarding the petitioner's use of drugs and alcohol was unfavorable. Moreover, none of these witnesses had a particularly close relationship with the petitioner near the time of the killings. In contrast, the mitigating proof actually presented was detailed, poignant, and favorable and was provided by the petitioner and his grandmother, with whom he had a close relationship. It is significant that the State did not cross examine either the petitioner or his grandmother at the sentencing hearing.

Clearly, trial counsel has a duty to investigate and prepare for the penalty phase of a capital trial since “evidence about the defendant's background and character is relevant because of the belief ... that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems may be less culpable than defendants who have no such excuse.” California v. Brown, 479 U.S. 538, 544, 107 S.Ct. 837, 841, 93 L.Ed.2d 934 (1987).

However, in this case, the proof does not preponderate against the trial court's finding that the petitioner suffered no prejudice even assuming trial counsel failed to competently fulfill that duty. Nothing was adduced at the post conviction hearing which could possibly have added anything favorable to the mitigation proof that was offered at the original trial by the petitioner and his grandmother. Though the petitioner offered a large number of witnesses who claimed they would have testified on his behalf at the sentencing hearing but for counsel's incompetence, the quality of their testimony was weakened either by their limited relationship with Henley at the time of the murders or by their personal knowledge of his drug use at the time of the murders. As the trial judge implicitly found, the testimony offered at the post conviction hearing was, at most, cumulative. State v. Melson, 772 S.W.2d 417, 419 (Tenn.1989). Appellate courts must consider the quality of the proposed testimony rather than the quantity of witnesses when determining whether prejudice has been established. Finally, proof of the aggravating circumstance in this case, that the murders were “especially heinous, atrocious, or cruel in that it involved torture or depravity of mind,” Tenn.Code Ann. § 39-2-203(I)(5) (1982), was strong.

The victims were forced at gunpoint from the road to their home. The wife watched as her husband was shot. She was then shot several times, but, according to the testimony at trial, she remained alive and conscious for a time after the fire had begun, and actually died of smoke inhalation. In our view, the petitioner has not established the existence of a “reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. at 2069.

C. Failure to Investigate Mental Condition and Request Evaluation

The Court of Criminal Appeals also found that the evidence preponderates against the trial court's denial of Henley's claim that counsel inadequately investigated the petitioner's mental condition and failed to request a mental evaluation.

At the evidentiary hearing, Henley offered the testimony of Dr. Kenner who said that Henley lost the family farm because he had a learning disability and was a bad manager and that Henley was depressed about the loss of the family farm and was “self-medicating” with alcohol and drugs near the time of the homicides. Based upon Dr. Kenner's testimony, Henley claimed that had trial counsel properly investigated his mental condition and requested that he undergo a mental evaluation, Reneau would have learned of this mitigating proof and presented it at the sentencing hearing. In reversing the trial court's denial of relief, the Court of Criminal Appeals implicitly found that trial counsel had been deficient in failing to investigate and offer this proof and that the deficiency has resulted in prejudice to Henley. We disagree.

While it is true that often a greater duty of inquiry into a client's mental health is imposed for the penalty phase of a capital trial, Goad, 938 S.W.2d at 370, it is also well-established that the reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions ... And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. Strickland, 466 U.S. at 691, 104 S.Ct. at 2066.

At the trial of this case, the defendant maintained his innocence, flatly denied that he had been intoxicated on the day of the murders, and also denied ever abusing drugs. Moreover, Henley said his farming operation had failed because of unpredictable weather, a drought followed the next year by floods. Clearly then, the evidence for which trial counsel is now faulted for not discovering and introducing would have been inconsistent with the defendant's own testimony and harmful to the defense theory throughout the trial. When assessing the performance of trial counsel, courts must eliminate the “distorting effects of hindsight” and evaluate the challenged conduct from counsel's perspective at the time, rather than from the perspective of a mental health expert offering testimony in a post conviction proceeding. Applying that standard, it is clear that trial counsel's performance and investigation of Henley's mental condition was not deficient. Accordingly, the evidence does not preponderate against the trial court's denial of post conviction relief.

CONCLUSION

After carefully reviewing the record, we have determined that the Court of Criminal Appeals erred in concluding that the evidence preponderates against the trial court's denial of post conviction relief. Accordingly, the judgment of the Court of Criminal Appeals reversing Henley's death sentence and ordering a new sentencing hearing is reversed, and the judgment of the trial court denying the petition for post conviction relief is reinstated. The sentence of death shall be carried out as provided by law on the 27th day of April, 1998, unless stayed by this Court or other appropriate authority. ANDERSON, C.J., and HOLDER, J., concur. REID and BIRCH, JJ., dissent with separate dissenting opinion.

*****

REID, Justice, dissenting.

I dissent from the majority's decision that the petitioner in this case received effective assistance of counsel. Even though the trial court denied the petition for relief, that court obviously was not pleased with counsel's performance and attributed counsel's failure to call any witnesses other than petitioner's grandmother to “trial strategy.” In announcing his decision, the court stated: “I would have liked to have had another witness maybe to have been put on. I would have liked for the mother to have testified when she refused.” And again: “I would have liked to have seen another witness or two, but that's trial strategy.”

The Court of Criminal Appeals found that counsel's performance at the sentencing phase of the trial was deficient and also prejudicial, and the case was remanded by that court to the trial court for a new sentencing hearing. In support of my dissent, I rely upon the following portions of the Court of Criminal Appeals' opinion, which was written by Judge John H. Peay, with Presiding Judge Joe B. Jones and Special Judge Joseph H. Walker concurring: With respect to the sentencing phase of the trial, however, we find that Mr. Reneau's investigation and preparation were constitutionally deficient. Our Court has recognized that ‘[a] lawyer also has a substantial and important role to perform in raising mitigating factors both to the prosecutor initially and to the court at sentencing. This cannot effectively be done on the basis of broad general emotional appeals or on the strength of statements made to the lawyer by the defendant. Information concerning the defendant's background, education, employment record, mental and emotional stability, family relationships, and the like, will be relevant, as will mitigating circumstances surrounding the commission of the offense itself. Investigation is essential to fulfillment of these functions.’ Adkins v. State, 911 S.W.2d 334, 356 (Tenn.Crim.App.1994) (citation omitted). Personal background and character information are highly relevant at a capital sentencing hearing “because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.” California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 841, 93 L.Ed.2d 934 (1987) (O'Connor, J., concurring).

Although many of Henley's family members, including his mother, testified at the post-conviction hearing that they would have been willing to testify on Henley's behalf had they been asked, Mr. Reneau spoke to none of them prior to the sentencing hearing. Mr. Reneau called the petitioner's mother to the stand at the sentencing hearing without ever having spoken to her about testifying. Not understanding what was expected of her, she refused-in front of the jury-to testify. We do not think it is assuming too much to conclude that a jury is going to be prejudiced against a defendant upon that person's own mother refusing to testify on his or her behalf.FN1

FN1. In the petitioner's offer of proof at the post-conviction hearing, one juror was quoted as saying, “If a man's own mother won't testify on his behalf then we know what we've got to do.” Had they been prepared and called at the sentencing hearing, Henley's family members would have testified that they loved the petitioner; that he was a good and loving man; that he was not a violent man; that the offenses of which he was convicted were totally out of character for him; and that they were shocked by his arrest. They would have pled for his life.

Additionally, the petitioner produced evidence at the post-conviction hearing that other potentially mitigating evidence existed that would have been discovered had Mr. Reneau conducted a more thorough investigation. Expert testimony indicated the possibility that Henley had suffered from depression, alcohol and drug abuse, and learning disabilities. In grade school, Henley's I.Q. tested at 89. He dropped out of high school after the tenth grade. Not long before the murders, Henley suffered severe financial losses, was forced to file bankruptcy, and lost the family farm. All of this would have been proper testimony for mitigation. Eddings v. Oklahoma, 455 U.S. 104, 117, 102 S.Ct. 869, 878, 71 L.Ed.2d 1 (1982) (the Constitution requires the sentencer to “consider and weigh all of the mitigating evidence concerning the petitioner's family background and personal history.”) (O'Connor, J., concurring); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

In spite of all the mitigating evidence available, only two people testified on Henley's behalf at the sentencing hearing: Henley himself and his grandmother. The jury had already indicated that it did not believe Henley when it convicted him. Accordingly, it is reasonable to presume that Henley's testimony at his sentencing hearing would not have been particularly persuasive. It is also possible, if not likely, that Henley's grandmother was viewed with a certain amount of hostility because Flatt testified that it was on her behalf that Henley had felt compelled to attack the Staffords. Thus, of all the people that Mr. Reneau had available to him, the only two that testified were arguably the two least helpful.

“When the record shows a substantial deficiency in investigation, the normal deference afforded trial counsel's strategies is particularly inappropriate.... [This] Court will not credit a strategic choice by counsel when counsel ‘did not even know what evidence was available.’ ” Cooper v. State, 847 S.W.2d at 530 (citation omitted). The record in this case shows such a substantial deficiency. No psychological or psychiatric evaluation was done on Henley. Other than Henley's grandmother, Mr. Reneau did not speak with Henley's family members prior to the sentencing hearing. There is no evidence from Mr. Reneau's file or otherwise that he investigated Henley's educational background, employment history, or that he spoke with members of the community familiar with Henley. He “ ‘should have investigated his background, checked his school records, ... his medical history, tried to find witnesses to demonstrate all aspects of his character. [He] should have requested a psychological evaluation.’ ” Bell v. State, No. 03C01-9210-CR-00364, p. 42, Hamilton County, 1995 WL 113420 (Tenn.Crim.App. filed March 15, 1995, at Knoxville), cert. denied, (quoting the court below).

While we have held that Mr. Reneau's failure to investigate his client's mental health was not ineffective assistance of counsel with respect to the guilt phase of this trial, we do find that it was ineffective with respect to the sentencing phase.

“[T]here is a qualitative difference between obtaining psychological information for the purpose of preparing a defense to the charges and using such evidence for the purpose of mitigating the punishment. Thus, it is not incompatible to present evidence of psychological or mental impairment during sentencing, even where a defense of factual innocence has been interposed at the guilt phase.” Bell v. State, supra, at 46, 1995 WL 113420 (citation omitted). Combined with Mr. Reneau's failure to investigate Henley's family's availability and willingness to testify, and his failure to investigate other aspects of Henley's past, Mr. Reneau failed to meet the level or competence required by attorneys representing clients at the sentencing phase who are faced with the death penalty. See State v. Terry, 813 S.W.2d 420, 425 (Tenn.1991) (the qualitative difference between the death penalty and all other punishments requires greater reliability in the sentencing determination).

We also find that Mr. Reneau's deficient performance at the sentencing phase prejudiced the petitioner. The petitioner made an offer of proof at the post-conviction hearing that the jury considered the fact that Henley's mother refused to testify on her son's behalf. Even without this offer of proof, we hold that the dearth of favorable testimony offered at the sentencing hearing, when significant amounts of favorable testimony were available, establishes a reasonable probability that, but for Mr. Reneau's deficient performance with respect to the sentencing phase of Henley's trial, the result of the proceeding would have been different.FN2

FN2. Unlike State v. Melson, 772 S.W.2d 417 (Tenn.1989), this was not a case where the available mitigation evidence had already been presented during the guilt phase of the petitioner's trial. This well reasoned opinion by the Court of Criminal Appeals compels the conclusion that the petitioner was denied effective assistance of counsel guaranteed by the state and federal constitutions and therefore is entitled to a new sentencing hearing.

I am authorized to state that Justice BIRCH joins in this Dissenting Opinion.

Henley v. Bell, 487 F.3d 379 (6th Cir. 2007) (Habeas).

Background: Following affirmance on direct appeal of petitioner's state court convictions for murder and aggravated arson and his death sentence, 774 S.W.2d 908, he filed petition for writ of habeas corpus. The United States District Court for the Middle District of Tennessee, Robert L. Echols, J., denied petition. Petitioner appealed.

Holdings: The Court of Appeals, Cook, Circuit Judge, held that: (1) Supreme Court's decision in Campbell v. Louisiana announced a “new rule” of criminal procedure, which did not apply retroactively; (2) defense counsel's failure to call additional lay witnesses to testify during penalty phase did not constitute ineffective assistance of counsel; (3) counsel's failure to call a psychiatric expert to testify during sentencing phase was not ineffective; (4) petitioner failed to establish cause sufficient to excuse the procedural default of his due process claims; (5) remarks during closing argument did not constitute prosecutorial misconduct; and (6) instructions did not require jury to be unanimous in finding the existence of a mitigating factor. Affirmed.

COOK, Circuit Judge.

Petitioner Steve Henley was convicted of two counts of murder and aggravated arson in violation of Tennessee law and was sentenced to death. He filed a petition for habeas corpus that alleged twenty-one errors in the state-court proceedings. The district court denied the petition, but granted a Certificate of Appealability (COA) as to one issue, and we permitted Henley to expand the COA to include five additional claims. For the reasons set forth below, we affirm the judgment of the district court.

I. Background

The Tennessee Supreme Court found the following facts in Henley's direct appeal, State v. Henley, 774 S.W.2d 908, 912 (Tenn.1989):

In summary the evidence showed that Fred and Edna Stafford lived on Pine Lick Creek Road in Jackson County, just a short distance from the farm, owned by Henley's family, where his grandmother lived. On the day of the Staffords' death Henley had visited his grandmother and obtained some mechanical parts for some work he was doing. Flatt was with him.

Earlier in the day they had been driving about, tending to business affairs of Henley's. During that time they had consumed some beer and also had taken some drugs, referred to in the record as Dilaudids According to Flatt, as they passed the Staffords' residence Henley commented, “there was some people that lived on that road that owed his grandmother or grandfather some money, and they done him wrong, his grandparents wrong years before, and he was going to stop and see about collecting some money off them.”

Henley let Flatt out of the truck just before he reached his grandmother's house. When he returned five or ten minutes later he had a .22 rifle with him. They stopped fifty or seventy-five yards up the road where Henley loaded some more shells into the rifle. He also filled a plastic jug with gasoline from a five-gallon can he had in the back of the truck. They proceeded on toward the Stafford residence. When they reached there Mr. and Mrs. Stafford were standing on the left-hand side of the road looking at a small bridge where some construction work had recently been done. Henley stopped the truck, jumped out and told them, “I want your money, if you don't give it to me this man in the truck here, he's going to kill me.”

He then directed them to go to the house. Mr. Stafford said, “Steve, if you want money or something, I got $80, maybe $100, you can have it.” He forced them on to the house at gunpoint and told Flatt to bring the .22 rifle as he followed behind them. When they got within 20 or 30 feet of the house he told Flatt to give him the rifle and go back to the truck and get the plastic jug of gasoline. Flatt did as directed. As he reached the porch he saw Henley begin to shoot. He first shot Mr. Stafford then turned and shot Mrs. Stafford a time or two. While she was laying on the floor moaning and groaning he threw the rifle to Flatt, took out his pistol and shot her again with the pistol.

He told Flatt to pour out some of the gas. Flatt endeavored to do as he was told and poured out a small amount. When he could not finish Henley took the container of gas from him and finished pouring it out. He then directed Flatt to light it. When Flatt said he could not he struck the match and as the flames went up they ran to the truck.

The house burned to the ground. The bodies of the Staffords were found in the ashes. All that remained of Mr. Stafford's body was part of the right leg and the trunk area. The body of Mrs. Stafford was similarly burned. It was determined that Mr. Stafford died from a gunshot wound to the chest with the bullet passing through his heart. Mrs. Stafford's death was caused by burns and inhalation of noxious gases from the fire. It was the opinion of the medical examiner that Mrs. Stafford lived a minute or longer after the fire began.

In 1986, a Tennessee jury convicted Henley of two counts of first-degree murder and one count of aggravated arson. The jury recommended a death sentence. The trial court sentenced Henley to death for each murder and to twenty years imprisonment for the aggravated arson conviction. The Tennessee Supreme Court affirmed Henley's conviction and sentence on direct appeal. Henley filed a state post-conviction petition in 1990, which the trial court denied.

The Tennessee Court of Criminal Appeals concluded that Henley did not receive the effective assistance of counsel during the sentencing phase of his trial and vacated his death sentence. The Tennessee Supreme Court reversed, over a two-justice dissent, and affirmed the trial court's denial of Henley's petition. Henley v. State, 960 S.W.2d 572 (Tenn.1997). Henley filed a motion to reopen his state post-conviction petition in 1999, and the trial court denied it. The Tennessee Court of Criminal Appeals affirmed this decision.

Henley filed a petition in the district court pursuant to 28 U.S.C. § 2254 in 1998, which alleged twenty-one grounds for relief. The district court denied each claim and dismissed the petition. The district court granted Henley a COA as to whether he procedurally defaulted his claim that his accomplice testified falsely at his trial, but denied him a COA on all other issues.

We permitted Henley to expand his COA to include the following five issues: (1) whether women were underrepresented in the selection of the foreperson for Henley's grand jury in violation of his due process rights and his right to a fair cross-section of the community serving on his jury; (2) whether Henley's counsel rendered ineffective assistance during the sentencing phase of trial; (3) whether the trial court improperly instructed the jury that it had to unanimously find any mitigating factors in sentencing Henley; (4) whether the prosecutor improperly appealed to the jury to “send a message” as a reason for sentencing Henley to death; and (5) whether the prosecutor improperly vouched for the testimony of Henley's accomplice, Terry Flatt.

*****

IV. Ineffective Assistance of Counsel

Henley argues his counsel's failure to investigate his background and to present mitigating evidence at his sentencing hearing deprived him of his constitutional right to effective assistance. Henley can prevail only if the Tennessee Supreme Court's denial of his ineffective-assistance claim was unreasonable in light of clearly established Supreme Court precedent. Our review is essentially limited to determining whether the Tennessee Supreme Court's decision was contrary to or an unreasonable application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Putting aside questions of counsel's performance, we find nothing unreasonable in the Tennessee Supreme Court's conclusion that Henley was not prejudiced by counsel's alleged errors. Therefore, we reject his ineffective-assistance claim.

Our review of the record confirms that it was not unreasonable for the Tennessee Supreme Court to conclude that no prejudice resulted from counsel's failure to call additional lay witnesses. Henley's grandmother gave a “favorable and detailed description” of Henley. Of course, as the state appellate court pointed out, it is “possible” that the jury might have been hostile toward Henley's grandmother. Henley v. State, No. 01 C01-9506-CC-00193, 1996 WL 234075, at * 11 (Tenn.Crim.App. May 9, 1996). But the other lay witnesses likely would not have painted a better picture in light of “their limited relationship with Henley at the time of the murders” and “their personal knowledge of his drug use at the time of the murders.” See Henley, 960 S.W.2d at 582. We cannot say that it was unreasonable for the Tennessee Supreme Court to conclude that counsel's failure to call additional lackluster lay witnesses did not prejudice Henley at the mitigation phase.

We similarly reject Henley's argument that the state court unreasonably found no prejudice in counsel's failure to call a psychiatric expert to testify, in counsel's words, that Henley “has learning disabilities and dropped out of school, and was, at the time of the offense, suffering from depression and/or acting out of character.” In Strickland itself, 466 U.S. at 676, 700, 104 S.Ct. 2052, the Supreme Court found no prejudice arising from counsel's failure to call a psychiatric expert to testify that the defendant was “chronically frustrated and depressed” due to his inability to support his family financially. Henley's alleged depression resulting from his bankruptcy is similar enough to that found wanting in Strickland that it was not unreasonable to have treated Henley's claim the same way. The rest of the proposed expert testimony is so banal that it was not unreasonable to conclude that there was no “reasonable probability” that it would have affected the outcome of the mitigation phase. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052 (discussing the “reasonable probability” standard for showing prejudice).

V. Procedural Default of Due Process Claims

Henley believes that the prosecution gave Flatt favorable parole treatment in exchange for his testimony against Henley. Henley's habeas petition claims that his due process rights were violated when Flatt falsely denied receiving these benefits and the prosecutor let this falsity go uncorrected. He also argues, relatedly, that the prosecution violated his due process rights by withholding evidence of this supposed agreement. Essentially, these arguments present claims under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Henley pressed neither theory before the state courts, and any attempt to now seek post-conviction relief in the Tennessee courts would be procedurally barred. Tenn.Code Ann. § 40-30-102.

To overcome this procedural default and have these claims heard by a federal court, Henley must establish that (1) he had good cause for failing to raise them before the state courts and (2) he was prejudiced by the default. See, e.g., Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000).FN2 A petitioner who has procedurally defaulted a Brady claim satisfies the “cause and prejudice” test for overcoming the default by satisfying the second and third prongs of the Brady test; that is, by showing that “the reason for his failure to develop facts in state-court proceedings was the State's suppression of the relevant evidence,” and that “the suppressed evidence is ‘material’ for Brady purposes.” Banks v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004); see also Strickler v. Greene, 527 U.S. 263, 282, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

FN2. Henley could also overcome the procedural default without establishing “cause and prejudice” if he demonstrated “a sufficient probability that [the] failure to review his federal claim will result in a fundamental miscarriage of justice.” Edwards, 529 U.S. at 451, 120 S.Ct. 1587. We do not think this standard is met here.

Henley cites Banks for the proposition that he had little responsibility to inquire into the facts surrounding his Brady claims-that is, he “cannot be faulted for not catching a prosecutor in his or her lies or withholding of evidence.” This mischaracterizes Banks. While Banks did reject a rule that “defendants must scavenge for hints of undisclosed Brady material,” see id. at 695, 124 S.Ct. 1256, it retained the rule that good “cause” must be based on “events or circumstances ‘external to the defense.’ ” See id. at 696, 124 S.Ct. 1256 (quoting Amadeo v. Zant, 486 U.S. 214, 222, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988)). That is, Henley still must demonstrate that because of some external impediment over which he had no control, he cannot be expected to have developed his Brady claim in state court. But he makes no attempt to do so.

Henley points to the fact that Flatt was considered for early release in 1989 and paroled in 1991-despite disciplinary violations in prison-long before his 25-year sentence had run its term, and earlier than similarly situated offenders tend to be paroled. He also points to various state officials' statements indicating that they supported, or at least did not oppose, Flatt's early release. Even assuming these circumstances suggest a surreptitious deal, Henley never explains why he did not present them in state post-conviction proceedings-which pended more than six years after Flatt's parole release. For these reasons, we hold that Henley has failed to establish “cause” sufficient to excuse the procedural default of his Brady claims.

VI. Prosecutorial Misconduct

Henley raises two prosecutorial misconduct claims: (1) that the prosecutor improperly vouched for a witness during the guilt phase, and (2) that the prosecutor improperly asked the jury to send a message during the sentencing phase. Because the Tennessee Supreme Court considered each of these claims on direct appeal, Henley, 774 S.W.2d at 910-11, 913, we must assess whether that court's treatment of these claims was contrary to or an unreasonable application of clearly established Supreme Court precedent.

In Berger v. United States, the Supreme Court counseled United States Attorneys “to refrain from improper methods calculated to produce a wrongful conviction.” 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). Berger was, however, decided on direct review where the Court could “broad[ly] exercise [its] supervisory power.” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). At this habeas stage, Henley must show that any prosecutorial misconduct “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly, 416 U.S. at 643, 94 S.Ct. 1868.

The Tennessee Supreme Court denied relief to Henley on direct review by holding that any error in the prosecutor's vouching for Flatt was harmless. Henley, 774 S.W.2d at 911. In response to a credibility attack by defense counsel, the prosecutor commented, “I thought Flatt made one of the best witnesses I've ever seen.” Id. The prosecutor also began to comment on the “plea bargain process” but “was interrupted by the objection of defense counsel and he abandoned this line of argument.” Id. Although the Tennessee Supreme Court analyzed these claims under state law, the absence of prejudice spurred its rejection: the court labeled the first remark “innocuous” and viewed the second as resulting from a tense atmosphere where “the argument was improper on both sides.” Id.; see also United States v. Young, 470 U.S. 1, 13, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (noting that invited error can affect how a court determines an improper remark's effect on the trial as a whole).

In Darden, the most recent United States Supreme Court precedent available to the Tennessee Supreme Court as it decided Henley, the Court assessed the prosecutor's argument as improper, some of it as invited, and on balance, concluded Darden received a fair, if not perfect, trial. 477 U.S. at 182, 106 S.Ct. 2464. Based on both the limited nature of the prosecutor's comment in this case, and in light of Darden and Young, the Tennessee Supreme Court's denial of relief for improper vouching was neither contrary to nor an unreasonable application of Supreme Court precedent.

As for the claim arising from the sentencing hearing, the Tennessee Supreme Court held that the prosecutor's “reference to deterrence ... is an area into which he may not venture.” 774 S.W.2d at 913. That court then held, however, that it was “satisfied that the prosecutor's comments did not affect the jury's sentencing decision.” Id. In Caldwell v. Mississippi, the Supreme Court held that a prosecutor's closing argument violated the Eighth Amendment by improperly referring to automatic appellate review of death sentences. 472 U.S. 320, 336, 340, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).

The Caldwell Court distinguished Donnelly both by the nature of the comment and by noting that the trial judge in Donnelly gave a curative instruction; in contrast, the trial judge in Caldwell openly agreed with the prosecutor's improper remark. Id. at 339-40, 105 S.Ct. 2633. In light of Caldwell, vacatur of Henley's sentence was not required because the trial judge sustained the defense counsel's objection and admonished the prosecutor to discontinue that line of argument. We thus hold that the Tennessee Supreme Court's decision was neither contrary to nor an unreasonable application of Caldwell and other United States Supreme Court precedent.

VII. Jury Instruction

Henley complains that the jury instructions and verdict forms were worded so as to require the jury to unanimously find the existence of a mitigating factor. He attempted to raise this claim in his state post-conviction proceedings, but the state courts (erroneously, it seems) concluded that it had been raised on direct appeal and therefore refused to consider the claim. None of the post-conviction courts ever invoked a procedural bar as to this issue, but none of the state courts adjudicated the claim on its merits, either-in these circumstances, we review de novo. See Linscott v. Rose, 436 F.3d 587, 592 (6th Cir.2006).

The jury must be unanimous in determining that an aggravating factor exists. See Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). But a state may not, consistent with the Eighth Amendment, require that the jury be unanimous in determining that a mitigating factor exists. E.g., McKoy v. North Carolina, 494 U.S. 433, 443-44, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990); Mills v. Maryland, 486 U.S. 367, 373-75, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). In this case, the jury instructions read:

If the jury unanimously determines that at least one statutory aggravating circumstance ... [has] been proven by the State beyond a reasonable doubt, and said circumstance ... [is] not outweighed by any sufficiently substantial mitigating circumstances, the sentence shall be death.... If the jury unanimously determines that no statutory aggravating circumstance ... [has] been proved by the State beyond a reasonable doubt, or if the jury unanimously determines that a statutory aggravating circumstance ... [has] been proven by the state beyond a reasonable doubt, but that said circumstance ... [is] outweighed by one or more mitigating circumstance, the punishment shall be life imprisonment....

The verdict form for sentencing Henley to death read: We, the Jury, unanimously find the following listed statutory aggravating circumstance or circumstances.... Secondly, we, the Jury, unanimously find that there are no mitigating circumstances sufficiently substantial to outweigh the statutory aggravating circumstance or circumstances so listed above....

The question here is whether either of these admonitions requires the jury to be unanimous in determining that a mitigating factor exists. Mills established that if there is a “substantial possibility” that the answer is yes, the court must remand for resentencing. 486 U.S. at 377, 108 S.Ct. 1860. But the plain language of both the instructions and the verdict form require unanimity as to the weighing of aggravating and mitigating circumstances-not the existence of a mitigating circumstance. In other words, these admonitions simply and unobjectionably require a unanimous verdict.

We reviewed identical instructions and verdict forms in Coe and concluded the instructions and form required “unanimity as to the results of the weighing, but this is a far different matter than requiring unanimity as to the presence of a mitigating factor.” 161 F.3d at 338. As in Coe, “[n]othing in this language could reasonably be taken to require unanimity as to the presence of a mitigating factor. The instructions say clearly and correctly that in order to obtain a unanimous verdict, each juror must conclude that the mitigators do not outweigh the aggravators.” Id. Thus, we hold that the Tennessee court did not require the jury to be unanimous in finding the existence of a mitigating factor, and we affirm the district court's denial of this claim.

VIII. Conclusion

For the foregoing reasons, we affirm the district court's judgment. I agree with the majority's conclusion that (1) the trial court did not improperly instruct the jury that it had to unanimously find any mitigating factors in sentencing Henley; (2) the prosecutor did not improperly appeal to the jury to “send a message” as a reason for sentencing Henley to death; (3) the prosecutor did not improperly vouch for the testimony of Henley's accomplice, Terry Flatt; and (4) Henley procedurally defaulted on his claim that Flatt falsely testified in exchange for an assurance of early release from prison. I write separately because I disagree with the majority's disposition of Henley's due-process challenge to the selection of his grand-jury foreperson and his ineffective-assistance-of-counsel claim.

The majority concludes that Henley's due-process claim, alleging that women were underrepresented in the selection of his grand-jury foreperson, fails because Campbell v. Louisiana, 523 U.S. 392, 118 S.Ct. 1419, 140 L.Ed.2d 551 (1998), announced a new rule of constitutional law. Campbell, however, does not announce a new rule but rather is dictated by the Supreme Court's prior decisions in Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972) (plurality opinion), and Hobby v. United States, 468 U.S. 339, 104 S.Ct. 3093, 82 L.Ed.2d 260 (1984).

Moreover, the majority's conclusion that it was not unreasonable for the Tennessee Supreme Court to conclude that Henley was not prejudiced by his trial counsel's deficient performance is incorrect. Henley has shown that his trial counsel's performance was both deficient and prejudicial under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accordingly, because I would grant Henley habeas relief on his ineffective-assistance-of-counsel claim and would grant Henley an evidentiary hearing on his due-process challenge, I respectfully dissent.

A. Due-Process Challenge To The Selection Of Henley's Grand-Jury Foreperson

Henley asserts a due-process challenge to the systematic exclusion of women, in Jackson County, Tennessee, from the position of grand-jury foreperson. The Tennessee Court of Criminal Appeals determined that Campbell declared a new rule, and the court therefore concluded that Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), barred retroactive application of Campbell to Henley's claim. Both the Tennessee Court of Criminal Appeals and the majority erred in concluding that Campbell declared a new rule.

A conclusion that Campbell is dictated by precedent (and therefore does not announce a new rule of constitutional law) is supported by the Supreme Court's prior decisions in Peters, Hobby, Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979), and Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). In the cases leading up to Campbell, the Supreme Court repeatedly stressed its concern that discrimination, such as the kind complained of by Henley, hurts all defendants regardless of their race or gender and undermines the fair administration of justice.

In Peters, for instance, where a white defendant claimed that his due-process rights were violated because blacks were systematically excluded from both the grand jury that indicted him and the petit jury that convicted him, the Court explained that the exclusion of blacks “from jury service injures not only defendants, but also other members of the excluded class: it denies the class of potential jurors the ‘privilege of participating equally ... in the administration of justice,’ and it stigmatizes the whole class ... by declaring them unfit for jury service and thereby putting ‘a brand upon them, affixed by law, an assertion of their inferiority.’ ” 407 U.S. at 499, 92 S.Ct. 2163 (quoting Strauder v. West Virginia, 100 U.S. 303, 308, 25 L.Ed. 664 (1879)).

The Court's concern with the integrity of the judicial system was also apparent in its decision in Rose. In Rose, as in Peters, the Court expressed its concern that “[s]election of members of a grand jury because they are of one race and not another destroys the appearance of justice and thereby casts doubt on the integrity of the judicial process.” Rose, 443 U.S. at 555-56, 99 S.Ct. 2993. Rose held that two black defendants could bring an equal-protection challenge to their convictions based on racial discrimination in the selection of the Tennessee grand jury and grand-jury foreperson that indicted them for murder.

In addressing the harm caused by such discrimination, the Court stated that [t]he harm [from discrimination] is not only to the accused, indicted as he is by a jury from which a segment of the community is excluded. It is to society as a whole. The injury is not limited to the defendant-there is injury to the jury system, to the law as an institution, to the community at large, and to the democratic ideal reflected in the processes of our courts. Id. (quoting Ballard v. United States, 329 U.S. 187, 195, 67 S.Ct. 261, 91 L.Ed. 181 (1946)) (internal quotation marks omitted) (emphasis added).

In Powers, the Court held that Powers, a white, male defendant, had standing to raise an equal-protection objection to the prosecutor's allegedly race-based exercise of peremptory challenges to exclude black prospective jurors. 499 U.S. at 402, 111 S.Ct. 1364. The Court stated that “[t]o bar petitioner's claim because his race differs from that of the excluded jurors would be to condone the arbitrary exclusion of citizens from the duty, honor, and privilege of jury service.” Id. at 415, 111 S.Ct. 1364.

In reaching its conclusion, the Court explained that it was not deviating from past precedent but rather was “once again declin[ing] to reverse a course of decisions of long standing directed against racial discrimination in the administration of justice.” Id. (quoting Cassell v. Texas, 339 U.S. 282, 290, 70 S.Ct. 629, 94 L.Ed. 839 (1950) (Frankfurter, J., concurring in judgment)).

In Camp