from the United States District Court for the Middle District
of Tennessee at Nashville. No. 3:03-cv-00814-William J.
Haynes, Jr., District Judge.
R. Bottei, Gretchen L. Swift, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Nashville, Tennessee, for Appellant.
Jennifer L. Smith, OFFICE OF THE TENNESSEE ATTORNEY GENERAL,
Nashville, Tennessee, for Appellee.
Before: MOORE, CLAY, and WHITE, Circuit Judges.
NELSON MOORE, Circuit Judge.
Petitioner-Appellant Donald Middlebrooks appeals from the
district court's denial of his petition for a writ of
habeas corpus. Middlebrooks was convicted in Tennessee state
court for the 1987 kidnapping and murder of Kerrick Majors, a
fourteen-year-old African American. A jury sentenced
Middlebrooks to death. This is Middlebrooks's second
appeal from the denial of his habeas claims. In 2010, we
affirmed the district court's first dismissal of
Middlebrooks's petition; the Supreme Court vacated our
decision, however, in light of the Court's holding in
Martinez v. Ryan, 132 S.Ct. 1309 (2012). On remand,
the district court concluded that Middlebrooks was not
entitled to relief under Martinez and Trevino v.
Thaler, 133 S.Ct. 1911 (2013). For the reasons discussed
below, we AFFIRM the district court's
judgment denying Middlebrooks's habeas petition.
Tennessee Supreme Court summarized the evidence presented
during Middlebrooks's capital trial as follows:
[O]n the evening of Sunday, April 26, 1987, around 7:00 p.m.,
the victim, Kerrick Majors, a 14-year-old black male, was
with four friends on Gallatin Road in East Nashville,
Tennessee, when they saw a table with a "lot of
stuff" being set up across the street as a flea market
by three homeless street persons: the defendant, Donald
Middlebrooks (a 24-year-old white male); his wife,
17-year-old Tammy Middlebrooks; and their companion,
16-year-old Roger Brewington. The five boys ran across
Gallatin Road and were looking at the flea market when Tammy
Middlebrooks called out, "Hey, leave our stuff
alone!" The boys started running. The defendant and
Brewington chased them until they caught Majors. Brewington
grabbed Majors in a "sleeper hold" around his neck
and head. The defendant held his hand. When Majors said,
"Hey man, you know me, " Brewington responded,
"Shut up, you nigger." Shannon Stewart and another
of the boys, Tony Watson, saw the two men drag Majors toward
the table and observed the defendant strike him in the face,
knocking him to the ground. Frightened, the boys took off
running. Later that evening, they reported these events to
the victim's mother, who called the police.
The next afternoon, Kerrick Majors' nude body was
discovered lying face up in a dry creek bed under a foam
mattress in a heavily wooded area behind a drugstore on
Gallatin Road in the area where the defendant and Brewington
had caught Majors. A bloodstained T-shirt was tied around his
neck. A red rope belt was tied around Majors' left wrist,
and there was a two-inch laceration in his right wrist.
Abrasions, swelling, and bruising were present on the
victim's head, his left eye, his nose, his lips, and
inside his mouth. An "X" with a vertical line
running through it had been cut into his chest. The forensic
pathologist, Dr. Charles Harlan, testified that these
incisions had been made while Majors was alive. There were
two deep stab wounds in the center of the body. One of these
penetrated the left lung and pulmonary artery and caused the
victim to bleed to death over a period of ten to thirty
minutes, during part of which Majors was conscious.
Investigating officers noticed a smell of urine about the
face, and there were bruises and skinned areas on the back. A
wooden stick with blood stains on one end was found lying
close to the victim's head.
Around 1:10 a.m. on April 28, police investigators met
Brewington at a doughnut shop several miles from the Gallatin
Road area. Brewington directed the officers to the location
of a knife with a brass knuckle handle, which was
bloodstained. Dr. Harlan testified that this knife could have
inflicted the deep stab wounds on the victim's body.
Brewington also directed the police to a wooded area between
Gallatin Road and Ellington Parkway in Nashville where,
around 7:00 a.m. on April 28, Donald and Tammy Middlebrooks
were apprehended at a small plywood shack. The defendant, who
resisted the arresting officers, had a knife with him. He was
arrested with the aid of police dogs, taken to the hospital
for treatment of the dog bites, and later transported to
At 12:30 p.m. that day, the defendant gave a lengthy
video-taped statement about his involvement in the death of
Kerrick Majors. The defendant admitted participating in the
beating and mistreatment of Majors, but described his role as
minor and depicted Roger Brewington as the primary
perpetrator of the offense. After Majors was caught,
Middlebrooks said Brewington suggested they "have some
fun, " and the three of them took Majors back into the
woods. His hands were tied. Brewington slapped him, beat him
with the knife's brass knuckles, hit him with a stick,
and urinated into his mouth. The defendant admitted striking
Majors with his open hand and on the leg with a switch.
Defendant said that his wife Tammy had slapped Majors and
burned Majors' nose with a cigarette lighter as
Brewington urged her on. Brewington hit Majors on his
testicles, threatened to cut "it" open, stuck a
stick up Majors' anus, hit him some more with the brass
knuckles, wiped the victim's blood on himself, beat his
mouth and tongue with a stick, dropped the knife on him,
gagged him, and slashed his wrist. Finally, when the
defendant asked Brewington to stop because the victim's
crying and pleading were getting on his nerves, Brewington
gave the victim "the kiss of death" on the
forehead. Brewington then gave the defendant the knife and
told him to stab Majors. When the defendant refused,
Brewington stabbed Majors. The defendant then reluctantly
stabbed the victim, according to him, "to prove to Roger
that I guess I was cooler" and to put Majors out of his
misery. In a previous statement, however, the defendant had
said that he had stabbed Majors twice. The victim's
ordeal began at 7:30 p.m. and ended at 11:00 p.m. that night
with the stabbing.
The next day, the defendant said he and Brewington went back
to where they had left the body. Brewington kicked it and
made the "X" lacerations at this time. The
defendant said he then covered Majors with a foam mattress.
The defendant admitted that before beating and killing
Majors, he and Brewington had drunk alcohol and smoked
The defendant presented no proof.
State v. Middlebrooks, 840 S.W.2d 317, 323-25 (Tenn.
explained in our prior opinion, "[o]n the basis of this
evidence, the jury convicted Middlebrooks of felony murder
and aggravated kidnapping but acquitted him of first-degree
premediated murder, armed robbery, and aggravated sexual
battery." Middlebrooks v. Bell, 619 F.3d 526,
532 (6th Cir. 2010), cert. granted, vacated sub nom.
Middlebrooks v. Colson, 132 S.Ct. 1791 (2012). The jury
sentenced Middlebrooks to death. Middlebrooks, 619
F.3d at 532. "[T]he jury found two aggravating
circumstances-that the murder was especially heinous,
atrocious, and cruel in that it involved torture or depravity
of mind, and that it was committed while Middlebrooks
perpetrated a felony." Id.
Tennessee Supreme Court upheld Middlebrooks's convictions
on direct appeal but vacated Middlebrooks's death
sentence, finding that the second aggravating circumstance
"duplicated the offense of felony murder and therefore
failed to narrow the class of death-eligible defendants under
Article I, § 16 of the Tennessee Constitution."
State v. Middlebrooks, 995 S.W.2d 550, 552-53 (Tenn.
1999); see also State v. Middlebrooks, 840 S.W.2d at
Tennessee Supreme Court remanded the case for a second
sentencing proceeding, and the following evidence was
According to the State's proof, fourteen-year-old Majors
was small for his age. He was described as a good student who
loved school. He was not a violent person, nor did he carry a
weapon. Since his murder, his mother's health has
deteriorated. She has been on medication and will not leave
the house except for doctor appointments. She has had a
nervous breakdown, suffers from panic attacks, and has not
been able to sleep at night since the murder. Majors'
older brother blames himself for Majors' death and now
suffers from mood swings. Shannon Stewart testified that he
had spoken with Middlebrooks the morning of the murder.
Middlebrooks had told Stewart that he was a member of the
KKK, that he "hated niggers, " and that he punched
a black man just for saying hello. Stewart also testified
that he overheard Middlebrooks order Majors to "shut up
The defense introduced mitigation evidence as follows:
Middlebrooks' cousins, James and Carol Sue Little, and
his half-sister, Sharon Fuchs, testified about
Middlebrooks' childhood. Middlebrooks grew up in Texas.
His father died when he was four. His mother remarried and
had another child, Ms. Fuchs, before she again divorced.
Middlebrooks' mother either left the children at night
with relatives or else would take them to bars with her.
According to the proof, Middlebrooks' mother would often
bring men to the house, and the children sometimes heard or
saw their mother having sex. Ms. Fuchs testified that
sometimes these men would molest her while her mother
watched. She further testified that she, Middlebrooks, and
other children in the family were molested by different
family members. For example, Middlebrooks was often left
alone with a male relative who had sexually abused him, and
Middlebrooks' mother would grab him between his legs and
also watch him use the bathroom. According to Sharon Fuchs,
the small town in which they grew up lacked counseling
services or social service agencies where they could seek
help for sexual abuse. According to her, no one in the family
ever discussed or admitted the family's problems.
The proof further indicated that Middlebrooks was often angry
and got into trouble. He was sent to a Methodist Home for
Children in Waco for two years. Later, he was twice sent to
prison. Between prison stays, Middlebrooks started to have
seizures. On one occasion he climbed a water tower and
threatened to commit suicide. He was hospitalized more than
once at a mental institution.
A psychologist, Dr. Jeffrey L. Smalldon, performed
neuropsychological and psychological evaluations of
Middlebrooks. From these evaluations, interviews, testing,
and prior education and medical records, Smalldon concluded
that Middlebrooks has a severe borderline personality
disorder. Middlebrooks exhibited several characteristics of
the disorder including inconsistent behavior, instability of
mood, a marked identity disturbance, impulsive and reckless
behavior, poor anger control, and recurring suicidal or
self-destructive acts. Smalldon testified that the documents
from other mental health professionals who have evaluated
Middlebrooks indicate that he suffers from substance abuse,
psychotic personality disorder, and schizophrenia.
Middlebrooks also suffers a mild degree of organic brain
impairment which causes him to be more impulsive and less
able to delay his responses. Finally, Smalldon testified that
Middlebrooks has also exhibited characteristics of adults who
were sexually abused as children.
During cross-examination, Dr. Smalldon admitted that
Middlebrooks confessed to a greater involvement in
Majors' death than he had in the video-taped confession.
For instance, Smalldon disclosed that Middlebrooks admitted
to him that it was his idea to hold Majors for ransom, that
he helped tie Majors up, and that he urinated on Majors. In
an attempt to resolve the discrepancies between the
videotaped confession to the police and the confession made
to him in the interview, Smalldon explained that Middlebrooks
is a chronic liar. Dr. Smalldon conceded that Middlebrooks
had never expressed any remorse to him. Smalldon agreed that
there were some indications in the medical records of
Middlebrooks' malingering, but testified that these
indications were not inconsistent with mental illness.
In rebuttal, the State introduced the testimony of two
experts indicating that Middlebrooks was exaggerating his
mental illness symptoms, that he was competent to stand
trial, that he did not have a defense of insanity, and that
he was not committable. One expert testified that he could
not say whether Middlebrooks was mentally ill. The other
expert testified that he made no finding of mental illness
and did not consider a personality disorder to be a mental
State v. Middlebrooks, 995 S.W.2d at 554-56.
Following the presentation of this evidence, the jury found
"that the murder was 'especially heinous, atrocious,
or cruel in that it involved torture or depravity of mind,
'" and that this "outweighed the evidence of
mitigating factors." Id. at 556 (quoting Tenn.
Code Ann. § 39-2-203(i)(5)). Middlebrooks was
resentenced to death, and this sentence was affirmed on
direct appeal by the Tennessee Supreme Court. See
id. at 553.
filed a petition for postconviction relief in state court in
November 1999. Appellee App. at 1. Middlebrooks raised
several grounds for relief in his petition, including
numerous arguments that he received ineffective assistance of
counsel. See id. at 8-9. After an evidentiary
hearing, the state court dismissed Middlebrooks's
petition in July 2001. Id. at 47. Middlebrooks
appealed, and the Tennessee Court of Criminal Appeals
affirmed. Middlebrooks v. State, No.
M2001-01865-CCA-R3-PD, 2003 WL 61244, at *13 (Tenn. Ct. Crim.
App. Jan. 9, 2003).
filed a petition for habeas corpus in federal district court
in 2003, and amended his petition in 2004. See
Appellant App. at 168. The district court denied relief on
May 26, 2005, finding that many of Middlebrooks's claims
were procedurally defaulted and others were non-meritorious.
See id. at 206-83. The district court denied a
Certificate of Appealability ("COA") for all of
Middlebrooks's claims. Id. at 283; see also
Middlebrooks v. Bell, No. 3:03-0814, 2007 WL 760441
(M.D. Tenn. Mar. 8, 2007). We granted a COA on seven ...