ca11|Baldwin v. Johnson, 95-6776 (1998) -- eLawyers

86 L. Ed. 2d 300

(1985) (affirming Baldwin's conviction and sentence).

In so holding, the Supreme Court upheld the constitutionality of Alabama's death penalty statute,

which required jurors to "fix the punishment at death" once they found a defendant guilty of a capital

offense. Ala.Code § 13-11-2(a) (1975); see also

Baldwin, 472 U.S. at 389

.

Additionally, the Court noted that although Baldwin asserted in his statement of facts that the

sentencing judge limited his consideration of mitigating circumstances to those specified in section

13-11-7 of the Alabama Code, in violation of Lockett v. Ohio,

438 U.S. 586

98 S. Ct. 2954

57 L. Ed. 2d 973

(1978), "[t]hat issue was not addressed by the Supreme Court of Alabama in the

decision under review, and was not raised in the petition for

certiorari." 472 U.S. at 381

n. 7,

. Thus, the Court had "no reason to consider the

issue...." 472 U.S. at 381

n. 7,

.

B. State Collateral Review

        On October 23, 1985, Baldwin filed a petition for writ of error coram nobis and/or motion

for relief from judgment in the Circuit Court of Monroe County, Alabama. On October 2, 1987, the

circuit court denied Baldwin's petition, finding that Baldwin was procedurally barred from

presenting the following claims because he failed to raise them at trial or on direct appeal: (1)

Alabama's death penalty statute was unconstitutional because the death penalty was "mandatory";

(2) the death penalty was applied in a discriminatory manner against defendants on the grounds of

race, gender and poverty, in general and in Baldwin's case; (3) Alabama's death penalty statute and

practices provided no standards for determining the burden of proof and persuasion in capital cases;

(4) the state's appellate review of death sentences was inadequate because it did not provide for a

comparative review, and was arbitrary and without governing standards; (5) electrocution was an


                                                  4
unnecessary and cruel means of execution; (6) the death penalty was excessive; (7) Baldwin's jury

did not constitute a representative cross-section of the community under the Sixth Amendment

because potential jurors with religious principles against capital punishment were systematically

excluded; (8) Baldwin's jury did not reflect a representative cross-section of the community in

violation of the Fourteenth Amendment's Due Process and Equal Protection Clauses; (9) Baldwin's

jury was "unrepresentative and biased in favor of the prosecution on the issue of [his] guilt"; (10)

his constitutional rights were violated because an improperly impaneled grand jury of all white

persons indicted him; and (11) the prosecutor violated his constitutional rights when he used his

peremptory strikes to remove all black potential jurors from Baldwin's petit jury. The court found

that Baldwin could not raise the following claims in his petition for writ of error coram nobis

because the Alabama appellate courts decided them on direct appeal: (1) the jury's inability to

consider lesser included offenses denied Baldwin due process of law and violated Beck; (2) under

the facts of this case, the death penalty was disproportionately severe; and (3) the death penalty

statute had been generally, and in this case, arbitrarily and capriciously applied. In addition, after

conducting an evidentiary hearing, the court denied Baldwin's ineffective assistance of counsel claim

on the merits.5




   5
    Baldwin contended that he received ineffective assistance because his trial counsel failed to:
(1) request a psychiatric examination; (2) move to change venue; (3) hire expert witnesses to
assist in the preparation and presentation of a defense concerning the effects of drugs and alcohol
on Baldwin; (4) question the potential jurors more extensively at voir dire and request that the
court individually question the jurors as to their beliefs about capital punishment; (5) prepare
Baldwin for, and present mitigating evidence at, the sentencing hearing; (6) move to recuse all
elected Alabama judges; (7) challenge the composition of the all white grand jury that indicted
Baldwin; and (8) move for a mistrial and/or object to the state's use of its peremptory strikes to
remove all black potential jurors from the petit jury.

                                                  5
       On October 28, 1988, the court of criminal appeals affirmed the denial of Baldwin's coram

nobis petition. See Baldwin v. State,

539 So. 2d 1103

(Ala.Crim.App.1988). The court summarily

affirmed the lower court's findings that some of Baldwin's claims were procedurally

barred. 539 So. 2d at 1104-05

. The court then quoted the lower court's opinion on the ineffective assistance of

counsel claim and adopted that opinion as its

own. 539 So. 2d at 1105-09

. The Supreme Court of

Alabama denied Baldwin a writ of certiorari on March 3, 1989, and the United States Supreme Court

denied certiorari review on October 2, 1989, bringing Baldwin's state collateral attack of his

conviction and sentence to a close. See Baldwin v. State,

539 So. 2d 1103

(Ala.1989); Baldwin v.

Alabama,

493 U.S. 874

110 S. Ct. 206

107 L. Ed. 2d 159

(1989).

C. Federal Habeas Corpus Review

On May 20, 1991, Baldwin filed a petition for writ of habeas corpus pursuant to 28 U.S.C.

§ 2254 in the United States District Court for the Southern District of Alabama. On October 29,

1991, he filed a second superseding petition; that petition, as supplemented, serves as the focus of

this case. The district court declined to conduct an evidentiary hearing because it found that

Baldwin's allegations concerning cause and prejudice for his defaulted claims were conclusory and

that the record did not support them, and the underlying facts of his ineffective assistance claim were

fully developed in the state court. The district court thereafter denied Baldwin's petition in a 177-

page order, concluding that many of Baldwin's 43 claims were procedurally barred, and that the

remaining claims did not warrant relief on the merits.

II. DISCUSSION

Baldwin's issues on appeal include an ineffective assistance of counsel claim and substantive

challenges to alleged trial errors. Because we conclude that Baldwin is not entitled to relief on the

6
merits of some of his claims and has procedurally defaulted the remaining claims, we affirm the

district court's denial of his petition for writ of habeas corpus. We address each of Baldwin's issues

in turn.

A. Ineffective Assistance of Counsel

Baldwin contends that the state violated his right to counsel under the Sixth and Fourteenth

Amendments of the United States Constitution when he received ineffective assistance at trial, at

sentencing and on direct appeal. An ineffective assistance of counsel claim presents a mixed

question of law and fact, which we review de novo. Huynh v. King,

95 F.3d 1052

, 1056 (11th

Cir.1996). To obtain relief on this claim, Baldwin bears the burden of demonstrating that (1) his

"counsel's representation fell below an objective standard of reasonableness," and (2) "a reasonable

probability exists that but for counsel's unprofessional conduct, the result of the proceeding would

have been different."

Huynh, 95 F.3d at 1056

(citing Strickland v. Washington,

466 U.S. 668

, 689,

80 L. Ed. 2d 674

(1984)). We determine the reasonableness of Baldwin's counsel's

performance through a deferential review of all of the circumstances from the perspective of counsel

at the time of the alleged errors. See Strickland v. Washington,

466 U.S. 668

, 689,

80 L. Ed. 2d 674

(1984) ("A fair assessment of attorney performance requires that every effort be

made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's

challenged conduct, and to evaluate the conduct from counsel's perspective at the time.");

Huynh, 95 F.3d at 1056

. In addition, a "reasonable probability" is a probability "sufficient to undermine

confidence in the outcome" of the proceeding.

Strickland, 466 U.S. at 694

. With

regard to showing prejudice as a result of his trial counsel's sentencing errors, Baldwin must prove

that but for his counsel's deficient performance, "a reasonable probability [existed] that the balance


                                                    7
of aggravating and mitigating circumstances would have been different." Horsley v. Alabama,

45 F.3d 1486

, 1493 (11th Cir.), cert. denied,

516 U.S. 960

116 S. Ct. 410

133 L. Ed. 2d 328

(1995).

        Although Baldwin raises numerous grounds for his ineffective assistance of counsel claim,

we address on the merits only those grounds that Baldwin alleged in his petition for writ of error

coram nobis and again in the district court. The remaining claims are procedurally barred. See

Footman v. Singletary,

978 F.2d 1207

, 1211 (11th Cir.1992) ("[A] habeas [corpus] petitioner may

not present instances of ineffective assistance of counsel in his federal petition that the state court

has not evaluated previously.").6 During his state coram nobis proceeding and in the district court,

Baldwin asserted that his trial counsel rendered constitutionally deficient performance in failing:

(1) to challenge the racial composition of the grand jury that indicted Baldwin; (2) to request a

change of venue; (3) to challenge the prosecutor's use of peremptory strikes to remove all black

prospective jurors from Baldwin's petit jury; (4) to request a psychiatric evaluation of Baldwin; (5)

to obtain an expert witness to address the effects of Baldwin's use of drugs and alcohol; (6) to

prepare Baldwin for sentencing; (7) to conduct an adequate voir dire; and (8) to move to recuse the

state trial judge.

         The state coram nobis court held a two-day hearing on Baldwin's ineffective assistance of

counsel claim.       Although Baldwin presented witnesses and submitted additional deposition

testimony in support of his claim, the state court found that he failed to demonstrate that his

counsel's performance was deficient or that he suffered prejudice therefrom. The court thus denied

him relief. Additionally, the district court denied Baldwin relief on his ineffective assistance claim

without conducting an evidentiary hearing. Baldwin asserts that the lack of a hearing in the district


   6
    In addition, see Part II.B for a discussion of Baldwin's defaulted claims.

                                                  8
court was erroneous because the state prevented him from fully developing the facts underlying his

claims before the state court.

        Upon careful review of the record, we conclude that Baldwin received a full and fair hearing

in the state coram nobis court on his ineffective assistance of counsel claim, and that he has not

demonstrated that he was entitled to an evidentiary hearing. See Meeks v. Singletary,

963 F.2d 316

,

319 (11th Cir.1992) ("[A] habeas corpus petitioner is entitled to an evidentiary hearing on his or her

claims if he or she alleges facts that, if proved at the hearing, would entitle petitioner to relief."),

cert. denied,

507 U.S. 950

113 S. Ct. 1362

122 L. Ed. 2d 741

(1993); Routly v. Singletary,

33 F.3d 1279

, 1284 (11th Cir.1994) (stating that the petitioner bears the burden of establishing the need for

a federal evidentiary hearing in addition to a state court hearing on the claim at issue), cert. denied,

(1995). We find that the record "fairly supports" the state court's findings of fact and presume,

pursuant to 28 U.S.C. § 2254(d), that those factual findings are correct. Weeks v. Jones,

26 F.3d 1030

, 1034 (11th Cir.1994), cert. denied,

513 U.S. 1193

115 S. Ct. 1258

131 L. Ed. 2d 137

(1995);

see also

Meeks, 963 F.2d at 319

.7 We also agree with the district court that "[n]one of the evidence

Baldwin suggest[ed] he would adduce [at an evidentiary hearing] [was] newly discovered in the

sense that it was not known or, through the exercise of reasonable diligence could not have been

discovered, at the time of the coram nobis hearing." District Court Order at 120. Baldwin failed to

demonstrate cause and prejudice for his failure to produce the evidence earlier, or a fundamental

miscarriage of justice in not receiving a hearing. See

Weeks, 26 F.3d at 1043

("A habeas [corpus]

petitioner is not entitled to an evidentiary hearing to develop facts that he failed to show in state


   7
    Because Baldwin filed his habeas corpus petition before the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996, that act does not apply to Baldwin's
petition. See Lindh v. Murphy,

521 U.S. 320

117 S. Ct. 2059

, 2068,

138 L. Ed. 2d 481

(1997).

                                                   9
court unless he can establish cause for and prejudice from such failure."); Mills v. Singletary,

63 F.3d 999

, 1022 (11th Cir.1995) ("A petitioner seeking a federal evidentiary hearing based on the

inadequate development of a material fact at an earlier state court hearing ... must show either: (1)

cause ... and prejudice ...; or (2) that a fundamental miscarriage of justice will result unless a federal

evidentiary hearing is held.") (citing Keeney v. Tamayo-Reyes,

504 U.S. 1

, 11-12,

112 S. Ct. 1715

118 L. Ed. 2d 318

(1992)), cert. denied,

517 U.S. 1214

116 S. Ct. 1837

134 L. Ed. 2d 940

(1996).

On the merits, Baldwin's claim fails. At the state coram nobis evidentiary hearing, Windell

Owens, Baldwin's trial and direct appellate counsel, testified to the following facts. Owens became

licensed to practice law in 1948 and practiced continuously in Monroe County, doing about fifty

percent criminal work. At the time of Baldwin's trial, in 1977, Owens had twenty-nine years of

experience and had tried approximately fifteen or twenty felony jury trials per year. In preparation

for Baldwin's trial, Owens met with Baldwin on at least eight occasions and discussed Baldwin's

version of the facts of the case—which matched Baldwin's statements to law enforcement

officials—and his personal and family history. Owens also interviewed Baldwin's codefendant,

Edward Horsley, law enforcement officers and other witnesses, including questioning them about

the voluntariness of Baldwin's confession. In addition, Owens "discussed at length any possible

witnesses [with Baldwin] but ... was never given any [names] other than generally the people who

either took statements and things of that sort. [Baldwin] never furnished [him] with a single fact

witness that was not already involved in the case." Coram Nobis Hr'g at 38. Thereafter, Owens

made "a number of efforts" to contact Baldwin's family, but they would not return his telephone calls

or respond to his letters. Coram Nobis Hr'g at 38. He acknowledged that he did not secure any

written documents or evidence about Baldwin's family life or anything else from Baldwin's home

10
state of North Carolina prior to the trial or sentencing. With the above information as foundation,

we move to Baldwin's specific allegations.

Baldwin first alleges that his trial counsel was ineffective in failing to challenge the racial

composition of the grand jury that indicted him. Upon due consideration, it is clear that Owens

made a strategic decision not to launch such a challenge. At the time of Baldwin's trial, in order to

challenge the composition of the grand jury under the Equal Protection Clause of the Fourteenth

Amendment, Baldwin would have had to demonstrate, among other things, that blacks were

excluded from grand juries in Monroe County "over a significant period of time[,]" and not just that

they were under-represented on his particular grand jury. See Castaneda v. Partida,

430 U.S. 482

,

494,

97 S. Ct. 1272

51 L. Ed. 2d 498

(1977); Birt v. Montgomery,

725 F.2d 587

, 606-07 (11th Cir.)

(en banc ), cert. denied,

469 U.S. 874

105 S. Ct. 232

83 L. Ed. 2d 161

(1984). In addition, to

challenge the racial composition under the Sixth Amendment's requirement that jury venires be

selected from a fair cross-section of the community, Baldwin would have had to show that the

under-representation was due to the "systematic exclusion of [blacks] from the selection process."

See Cunningham v. Zant,

928 F.2d 1006

, 1013 (11th Cir.1991) (citing Duren v. Missouri,

439 U.S. 357

, 364,

99 S. Ct. 664

58 L. Ed. 2d 579

(1979)).

       Owens testified that he did not challenge the racial composition of the grand jury because,

although he apparently discovered who was on the grand jury and thought that he looked at its racial

composition, he did not think he could succeed at such a challenge. He stated that "[such

challenges] had been done on several occasions prior to [Baldwin's] trial and [they] had never been

successful." Coram Nobis Hr'g at 47. Owens's testimony evinces that he strategically considered

and rejected this plan of action. See

Strickland, 466 U.S. at 681

("[S]trategic

11
choices must be respected ... if they are based on professional judgment."). When we view his

decision in light of the circumstances at the time of Baldwin's trial, we cannot say that it was

unreasonable. Baldwin is not entitled to relief on this claim.8

Baldwin next alleges that his trial counsel rendered ineffective assistance in failing to

request a change of venue. Baldwin's supporting facts as alleged in the supplement to his second

amended habeas corpus petition are that (1) his case was "one of the most highly publicized cases

in Monroe County[ ]"; and (2) "[h]ad counsel competently moved for a change of venue, said

motion should have been granted and [Baldwin] would have received a trial in a venue which would

have provided him with an impartial jury." Supp. to Second Amended Petition at 4-5. Baldwin also

submitted during his coram nobis proceeding, newspaper articles from the Monroe Journal

concerning his case—the only local newspaper in Monroe County at the time—and the testimony

of Steven Stewart. Stewart's family owned the only local radio station in Monroe County during the

relevant time, and Stewart himself was the editor of the Monroe Journal. Stewart testified that

"[t]here was probably more coverage of this crime than any other crime that occurred that year or

any years before or after that." Coram Nobis Hr'g at 120.

At the state coram nobis proceeding, Owens testified that he and Baldwin discussed a

possible change of venue. Owens stated that (1) he did not believe that a venue change was

warranted because neither Baldwin nor the victim was from Monroe County, and thus the impact

8
Although Baldwin attempts to establish a prima facie case that his equal protection rights
were violated through proffering statistics concerning the percentage of blacks in Monroe
County at the time of his trial and the make-up of the grand jury that indicted him, it appears that
he did not present this evidence to the state coram nobis court. See Coram Nobis Order at 17
("Baldwin ... introduced no evidence to show that there was any defect in the grand jury
selection process or the racial composition of the grand jury. Baldwin never proved the racial
makeup of the grand jury that indicted him.").

12
of the offense on the community was less than if the victim had been a local resident; (2) he did not

think that the court would have granted the request; and (3) he thought that Baldwin had "a better

chance ... in Monroe County because at the time [Owens] knew all the jurors." Coram Nobis Hr'g

at 42. In fact, "there was not a single member of that jury panel that [he] did not know[,] and [he]

knew their background and knew their families and ... thought that was an advantage to [him], or

to Mr. Baldwin, [his] client[.]" Coram Nobis Hr'g at 50-51.

We affirm the denial of relief to Baldwin on this claim. First, Baldwin failed to show that

his counsel's performance was deficient in not requesting a change of venue. Owens's decision was

clearly a tactical one that was reasonable under the circumstances. In addition, Baldwin failed to

demonstrate that he suffered any prejudice from Owens's alleged error. Under Alabama law,

"[n]ewspaper articles alone would not necessitate a change of venue unless it was shown that the

articles so affected the general citizenry through the insertion of such sensational, accusational or

denunciatory statements, that a fair and impartial trial was impossible." Thompson v. State,

581 So. 2d 1216

, 1233-34 (Ala.Crim.App.1991) (internal quotation marks omitted) (concluding that

Thompson had not demonstrated prejudice concerning his ineffective assistance of counsel claim

based on a failure to request a change of venue, because petitioner's evidence—newspaper articles

about his case—failed to establish an entitlement to a change of venue and thus no reasonable

probability existed that, "but for the absence of a properly supported motion for a change of venue,

the outcome of his trial would have been different"), cert. denied,

502 U.S. 1030

112 S. Ct. 868

116 L. Ed. 2d 774

(1992). The fact that a case generates widespread publicity does not, in and of itself,

warrant a change of venue. See, e.g., Waldrop v. State,

459 So. 2d 953

, 955 (Ala.Crim.App.1983)

("Publicity alone, even if inordinate, is not sufficient to warrant a change of venue. Some prejudicial


                                                  13
effect of the publicity must be shown."), aff'd,

459 So. 2d 959

(Ala.1984), cert. denied,

471 U.S. 1030

105 S. Ct. 2050

85 L. Ed. 2d 323

(1985); Knight v. Dugger,

863 F.2d 705

, 713-23 (11th

Cir.1988). Because Baldwin did not satisfy either the performance or prejudice prong of Strickland,

we affirm the district court's denial of relief on this claim.

        Baldwin also contends that his counsel rendered ineffective assistance when he failed to

request a psychiatric evaluation of Baldwin. At the state coram nobis hearing, Owens testified that

he did not request a psychiatric examination of Baldwin because he had no reason to make such a

request, in that Baldwin never did or said anything to indicate to him that he had any mental

problems.9    Additionally, according to Owens, Baldwin did not appear to have trouble

communicating and was generally cooperative. When asked if he had considered the possibility of

having Baldwin examined psychiatrically, Owens testified that he and Baldwin "had some

discussion one time about going in lines like that but [they] decided against it." Coram Nobis Hr'g

at 60. Owens also attested that Baldwin once told him that he was not crazy, stating, "I've got more

sense than you've got." Coram Nobis Hr'g at 78. We note that in addition to having experience as

a criminal defense attorney, Owens had legal experience with civil commitments.

        In light of the above testimony, Owens's decision to forgo a psychiatric examination was a

reasonable, strategic decision and did not constitute ineffective assistance. See

Weeks, 26 F.3d at 1037

(stating that trial counsel's observations of petitioner did not "put [him] on notice that he was

dealing with less than a rational individual" in support of the court's finding that the lawyer's failure

to locate previous psychological examinations did not constitute ineffective assistance). Owens did



   9
    Owens "never had any indication from [Baldwin] that that should be done." Coram Nobis
Hr'g at 43.

                                                   14
not have a reason to request such an examination, and Baldwin does not point to anything that

should have indicated to Owens that such an evaluation was necessary. See, e.g.,

Weeks, 26 F.3d at 1040

(petitioner alleged that his counsel was ineffective for not requesting a psychological

examination "when [petitioner] waived jury participation in his sentencing following his

conviction[,]" and demanded the death penalty.).

       Baldwin also failed to demonstrate that he suffered any prejudice, i.e., that but for Owens's

alleged unprofessional errors, a reasonable probability exists that the outcome of his trial would have

been different, or that the "sentencer would have weighed the balance of the aggravating and

mitigating factors to find that the circumstances did not warrant the death penalty."

Weeks, 26 F.3d at 1042

(internal quotation marks omitted). In the supplement to his second amended petition for

writ of habeas corpus, Baldwin states that "[h]ad counsel had [him] evaluated by a psychologist or

psychiatrist counsel would have been able to minimize [his] involvement in the commission of the

charged offenses and would have been able to individualize [him] at sentencing." Supp. to Second

Amended Petition at 4. Baldwin's attempted showing of prejudice was insufficient to satisfy his

burden under Strickland.

        Baldwin's next ground for his ineffective assistance of counsel claim is based on his trial

counsel's failure to challenge the prosecutor's use of peremptory strikes to remove all of the black

prospective jurors from Baldwin's petit jury. Owens testified at the state coram nobis hearing that

he noticed the prosecutor removing all the blacks from the jury. When asked why he did not

challenge the prosecutor's actions, he replied that he "thought it would be useless to do so" given the

state of the law at that time. Coram Nobis Hr'g at 50. However unfortunate, Owens's view of the

law, and thus his decision, was not unreasonable.


                                                  15
        At the time of Baldwin's trial, Swain v. Alabama,

380 U.S. 202

85 S. Ct. 824

13 L. Ed. 2d 759

(1965), governed challenges to prosecutorial use of peremptory strikes to remove blacks from a

jury.10 To state a claim under Swain, it was not enough for a defendant to show that the prosecutor

removed blacks from his or her particular

jury. 380 U.S. at 223

85 S. Ct. 824

13 L. Ed. 2d 759

. The

defendant had to demonstrate that the prosecutor, over time, systematically excluded blacks from

serving on petit juries.

Swain, 380 U.S. at 223-24

85 S. Ct. 824

. Based on Swain, Owens's belief,

that a challenge to the prosecutor striking all the blacks from Baldwin's jury alone would not have

succeeded, was correct. Baldwin did not even successfully show at the state coram nobis hearing

that the prosecutor's actions in his case constituted a systematic practice. Although Owens testified

that the juries in Monroe County tended to have a larger percentage of white jurors than black jurors,

he denied that, in his years of practice, the prosecutor struck all black individuals from the juries.

Baldwin is not entitled to relief on this claim.

        Even if we assume that Baldwin's trial counsel rendered ineffective assistance in failing to

challenge the prosecutor's use of peremptory strikes, Baldwin has not demonstrated any prejudice

therefrom. Although "[w]e would have more confidence in the verdict had it been delivered by a

constitutionally composed jury, with both black and white members[,]" overwhelming evidence

supported Baldwin's conviction in this case. Jackson v. Herring,

42 F.3d 1350

, 1362 (11th Cir.),

cert. denied,

515 U.S. 1189

116 S. Ct. 38

132 L. Ed. 2d 919

(1995). Having conducted a thorough



   10
     Because Baldwin's conviction became final before the Supreme Court decided Batson v.
Kentucky,

476 U.S. 79

106 S. Ct. 1712

90 L. Ed. 2d 69

(1986), and Batson does not apply
retroactively, the applicable standard is the one articulated in Swain. See Allen v. Hardy,

478 U.S. 255

, 257-58,

106 S. Ct. 2878

92 L. Ed. 2d 199

(1986) ("We conclude that our decision in
Batson should not be applied retroactively on collateral review of convictions that became final
before our opinion was announced.") (footnote omitted).

                                                   16
review of the record, however, "we cannot conclude there is a "reasonable probability that, but for

counsel[s'] ... errors, the result of the proceeding would have been different.' "

Jackson, 42 F.3d at 1362

(quoting

Strickland, 466 U.S. at 694

) (alteration in original); see also Waters

v. Thomas,

46 F.3d 1506

, 1510 (11th Cir.) ("[Petitioner's] guilt stage ineffective assistance of

counsel claims are due to be denied because the evidence of guilt was so overwhelming that [he]

cannot show prejudice from any of the claimed shortcomings of his counsel at the guilt stage."), cert.

denied,

516 U.S. 856

116 S. Ct. 160

133 L. Ed. 2d 103

(1995).

        Baldwin also contends that his trial counsel failed to present mitigating evidence at, and to

prepare him for, the sentencing hearing. We find this claim to be without merit. Owens testified

that he made "several efforts to try to get anything [from Baldwin] that [Owens] thought might help

him[.]" Coram Nobis Hr'g at 40. Although Owens discussed the sentencing hearing with Baldwin

at length, Baldwin was unable to provide him with any beneficial witnesses. After getting

information from Baldwin about his family, Owens made numerous efforts to contact them, but they

did not return his telephone calls or respond to his letters.

       We recognize that Baldwin's testimony contradicted that of Owens. Baldwin testified that

Owens came to see him only twice for ten minutes each between the verdict and sentencing hearing,

once asking about his childhood. Baldwin denied that Owens asked him for sentencing witnesses

and stated that he did not understand what was occurring during the sentencing hearing. The state

coram nobis court found that "Owens [was] a credible witness and that Baldwin [was] not." Coram

Nobis Order at 15. We must accept the state court's credibility determination and thus credit

Owens's testimony over Baldwin's. See Coulter v. Herring,

60 F.3d 1499

, 1503 (11th Cir.1995)




                                                  17
(applying the statutory presumption of correctness under § 2254(d) to the state court's credibility

determination), cert. denied,

516 U.S. 1122

116 S. Ct. 934

133 L. Ed. 2d 860

(1996).

        In light of the above testimony, Baldwin has not demonstrated that his counsel's performance

was deficient. We agree with the state coram nobis court and the district court that Baldwin's failure

to be forthcoming with information that may have been helpful to him hindered Owens's ability to

obtain and present any additional mitigating evidence. See

Strickland, 466 U.S. at 691

("The reasonableness of counsel's actions may be determined or substantially influenced by

the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on

informed strategic choices made by the defendant and on information supplied by the defendant.").11

Once again, even if Owens's preparation for sentencing was deficient, Baldwin failed to demonstrate

that "the balance of aggravating and mitigating circumstances would have been different."

Horsley, 45 F.3d at 1493

Baldwin next contends that his trial counsel rendered ineffective assistance in failing to

conduct more extensive questioning of the potential jurors about their racial attitudes and views of

the death penalty on voir dire. Owens testified that he did not further question the jurors because

he knew all of the jurors on the venire and felt that he knew what their attitudes were.12 In addition,

Owens did not believe that it was necessarily appropriate to question them about their racial views

because he felt that when a lawyer was preparing to try a case before a jury, "the less you rile a

prospective juror, ... the better off you are going to be." Coram Nobis Hr'g at 50.

11
Owens placed Baldwin on the stand, who testified to his difficulties as a child and other
circumstances of his background.
12
Owens stated, "I thought I knew the people pretty intimately myself—every one on the jury
panel." Coram Nobis Hr'g at 72.

18
We cannot say that Owens's choice concerning the amount of voir dire constituted ineffective

assistance of counsel. At the time of Baldwin's trial, Owens had about twenty-nine years of

experience practicing in Monroe County and personal knowledge of all of the potential jurors. He

testified that he knew the entire jury panel, including their families and backgrounds. Owens's

amount of questioning of the potential jurors was clearly a reasonable, strategic choice, in light of

his personal knowledge of, and familiarity with, them. See

Strickland, 466 U.S. at 681

. We thus reject this ground of Baldwin's ineffective assistance claim.

        Baldwin also argues that Owens's representation was ineffective because he failed to obtain

mitigating evidence concerning the effects of Baldwin's use of drugs. At the state coram nobis

hearing, Owens testified that he did not investigate Baldwin's prior drug use, because Baldwin had

never mentioned any such use until he testified at the sentencing hearing.13 Baldwin's failure to

mention such use occurred despite Owens's efforts to obtain favorable mitigating evidence, including

interviewing Baldwin and attempting to contact his family. In addition, from his interaction with

Baldwin, Owens had no reason to believe that Baldwin had ever had any problems with drugs.

Baldwin, however, testified at the state coram nobis hearing that he told Owens about his drug use

prior to the sentencing hearing.

        Again, we give deference to the state court's finding that "Owens's testimony [was] credible

and Baldwin's [was] not." Coram Nobis Order at 10; see Marshall v. Lonberger,

459 U.S. 422

, 434,

103 S. Ct. 843

74 L. Ed. 2d 646

(1983) ("Title 28 U.S.C. § 2254(d) gives federal habeas [corpus]

courts no license to redetermine credibility of witnesses whose demeanor has been observed by the



   13
    "[I]t had never been mentioned to [Owens] or to [his] associate trying the case that [Baldwin
and Horsley] had ever taken a drug in their life [sic]." Coram Nobis Hr'g at 62.

                                                 19
state trial court, but not by them."); Smith v. Kemp,

715 F.2d 1459

, 1465 (11th Cir.) ("Resolution

of conflicts in evidence and credibility issues rests within the province of the state habeas court,

provided petitioner has been afforded the opportunity to a full and fair hearing."), cert. denied,

464 U.S. 1003

104 S. Ct. 510

78 L. Ed. 2d 699

(1983). We therefore accept Owens's testimony and

conclude that, under the circumstances, his failure to obtain drug-use mitigating evidence was not

a basis for a finding of ineffective assistance of counsel. In addition, we find that Baldwin has not

demonstrated that had Owens obtained and presented such evidence, the result of his sentencing

would have been different. See Bolender v. Singletary,

16 F.3d 1547

, 1556-57 (11th Cir.) (to prove

prejudice from a sentencing-phase error, petitioner must show that a "reasonable probability

[existed] that the balance of aggravating and mitigating circumstances would have been different"),

cert. denied,

513 U.S. 1022

115 S. Ct. 589

130 L. Ed. 2d 502

(1994).

        Finally, Baldwin contends that his lawyer was constitutionally ineffective because he failed

to request the recusal of the state trial judge. Owens testified that he did not request the trial judge's

recusal because he saw no reason to do so. "In fact, [Owens] thought [Baldwin's] trial [judge] had

more knowledge of the law than anybody [they] could [have gotten] and probably would [have been]

more fair than anybody else...." Coram Nobis Hr'g at 63-64. In addition, based on his experience

with the court, he had no reason to think that the judge was biased in any way. We agree with the

district court that "[a]bsent some evidence that recusal was warranted, Baldwin has failed to show

that his lawyer's performance was deficient or that he was prejudiced by the absence of a recusal

motion." District Court Order at 141.

        In summary, we conclude that Baldwin is not entitled to relief on his ineffective assistance

of counsel claim on the basis of any of the grounds that he has raised. With respect to each ground,


                                                   20
he failed to demonstrate that his counsel rendered deficient performance or that he suffered prejudice

from the alleged errors. We affirm the judgment of the district court on this issue.

B. Procedurally Barred Claims

        Whether Baldwin is procedurally barred from raising a particular claim is a mixed question

of law and fact, which we review de novo. Agan v. Vaughn,

119 F.3d 1538

, 1541 (11th Cir.1997),

cert. denied, --- U.S. ----,

118 S. Ct. 1305

140 L. Ed. 2d 470

(1998). Federal courts may not review

a claim that the petitioner procedurally defaulted under state law "if the last state court to review the

claim state[d] clearly and expressly that its judgment rest[ed] on a procedural bar, and the bar

present[ed] an independent and adequate state ground for denying relief." Hill v. Jones,

81 F.3d 1015

, 1022 (11th Cir.1996) (citing Harris v. Reed,

489 U.S. 255

, 260-61,

109 S. Ct. 1038

103 L. Ed. 2d 308

(1989)), cert. denied, --- U.S. ----,

117 S. Ct. 967

136 L. Ed. 2d 851

(1997);

Agan, 119 F.3d at 1548

.

        Baldwin raises five claims that we find to be procedurally barred from federal habeas corpus

consideration as a result of his failure to adhere to state procedural rules.14 First, Baldwin failed to


   14
     Baldwin has procedurally defaulted the following alleged deficiencies in the performance of
his trial and direct appellate counsel because he failed to raise them to support his ineffective
assistance of counsel claim during the state coram nobis proceeding: (1) failure to challenge the
under-representation of blacks from service on the petit juries in Monroe County; (2) failure to
investigate the robbery; (3) failure to investigate the rape allegations; (4) failure to request
money for expert witnesses; (5) failure to investigate adequately the circumstances surrounding
Baldwin's custodial statements; (6) failure to investigate the aggravating circumstances; (7)
failure to raise the defaulted claims on direct appeal; (8) failure to challenge the trial judge's and
prosecutor's practice of intentional racial discrimination in selecting grand jury forepersons in
Monroe County; and (9) failure to object to the state's introduction at sentencing of his
codefendant's hearsay statement. See Footman v. Singletary,

978 F.2d 1207

, 1211 (11th
Cir.1992). Although Baldwin alleges that the ineffective assistance of his coram nobis counsel
constitutes cause for these defaulted claims, "[t]he Supreme Court has clarified that attorney
error or ineffective assistance of counsel in a state collateral proceeding is not cause to override a
procedural bar that precludes review of a claim in federal court."

Weeks, 26 F.3d at 1046

(citing

                                                   21
raise the following issues in the state court—at trial, on direct appeal or during his state coram nobis

proceeding: (1) the state violated his Sixth and Fourteenth Amendment rights where blacks were

systematically under-represented from serving on petit juries in Monroe County, at the time of his

trial; (2) the state violated his rights under the Eighth Amendment when an unacceptable risk of

racial prejudice affected the imposition of his death sentence;15 and (3) the state violated his right

to confrontation under the Sixth Amendment when his codefendant's hearsay statement was

introduced during Baldwin's sentencing hearing. Under Alabama law, his failure to raise these

claims at trial or on direct appeal constituted a procedural bar to presenting them in a subsequent

state collateral proceeding. See, e.g., Jackson v. State,

501 So. 2d 542

, 544 (Ala.Crim.App.1986)

("Coram nobis is not available to review issues which could have been raised at trial or on direct

appeal."), cert. denied,

483 U.S. 1010

107 S. Ct. 3242

97 L. Ed. 2d 746

(1987). Baldwin is therefore

procedurally barred from raising them for the first time when seeking federal habeas corpus relief.

See Collier v. Jones,

910 F.2d 770

, 772 (11th Cir.1990) ("[W]hen a petitioner has failed to present

a claim to the state courts and under state procedural rules the claim has become procedurally

defaulted, the claim will be considered procedurally defaulted in federal court.").

        In addition, Baldwin presented the following issues for the first time during his state coram

nobis proceeding: (1) the state violated his Sixth and Fourteenth Amendment rights where blacks




Coleman v. Thompson,

501 U.S. 722

111 S. Ct. 2546

, 2566-68,

115 L. Ed. 2d 640

(1991)).
   15
     Baldwin argues that he raised this claim during the state coram nobis proceeding as a
challenge to the Alabama death penalty statute for its discriminatory and arbitrary application to
poor black males, and that he presented this claim as part of Count 12(f), which the district court
reviewed on the merits, in his federal habeas corpus petition. As did the district court, we find
this claim to be distinct from his general challenge of the Alabama death penalty statute, and
conclude that it is procedurally barred.

                                                  22
were systematically under-represented on grand juries in Monroe County, at the time of his trial;

and (2) the state violated his rights under the Equal Protection Clause of the Fourteenth Amendment

when the prosecutor used his peremptory strikes to exclude all black persons from the petit jury in

Baldwin's case. The state coram nobis court found that Baldwin procedurally defaulted these claims

because he did not raise them at trial or on direct appeal, and that he failed to demonstrate

successfully cause for, and prejudice from, the defaults. The Alabama Court of Criminal Appeals

affirmed the decision. See

Baldwin, 539 So. 2d at 1104-05

. Because the state court concluded that

Baldwin procedurally defaulted these claims, he is not entitled to federal habeas corpus review of

them on the merits. See

Agan, 119 F.3d at 1548

("A state court's determination that a claim is barred

from review in state court because of the petitioner's failure to comply with state law procedures for

presenting the claim precludes federal habeas [corpus] review of that claim....").

        Baldwin, however, may overcome these procedural defaults—and obtain federal habeas

corpus review of his barred claims on the merits—if he can demonstrate cause for the defaults and

actual prejudice resulting therefrom, or a fundamental miscarriage of justice in this court's refusing

to review his claims. See

Agan, 119 F.3d at 1548

-49;

Horsley, 45 F.3d at 1489

("The Supreme

Court has held that, "[u]nless a habeas [corpus] petitioner shows cause and prejudice, a court may

not reach the merits of ... procedurally defaulted claims in which the petitioner failed to follow

applicable state procedural rules in raising the claim.' ") (quoting Sawyer v. Whitley,

505 U.S. 333

112 S. Ct. 2514

, 2528,

120 L. Ed. 2d 269

(1992)) (alteration in original and emphasis omitted);

Hill, 81 F.3d at 1023

("[I]n extraordinary cases, a federal habeas [corpus] court may grant the writ

without a showing of cause and prejudice to correct a fundamental miscarriage of justice."). For

Baldwin to show "cause," the procedural default "must result from some objective factor external


                                                 23
to the defense that prevented [him] from raising the claim and which cannot be fairly attributable

to his own conduct." McCoy v. Newsome,

953 F.2d 1252

, 1258 (11th Cir.), cert. denied,

504 U.S. 944

112 S. Ct. 2283

119 L. Ed. 2d 208

(1992). Under the prejudice prong, Baldwin must show that

"the errors at trial actually and substantially disadvantaged his defense so that he was denied

fundamental fairness."

McCoy, 953 F.2d at 1261

. In addition, before a federal habeas corpus court

will excuse a default of a guilt-phase claim under the fundamental miscarriage of justice standard,

"a petitioner must prove "a constitutional violation [that] has probably resulted in the conviction of

one who is actually innocent.' "

(quoting Murray v. Carrier,

477 U.S. 478

,

496,

106 S. Ct. 2639

91 L. Ed. 2d 397

(1986)). For a petitioner to gain habeas corpus review of a

defaulted sentencing phase claim based on a fundamental miscarriage of justice, he or she "must

show that "but for constitutional error at his sentencing hearing, no reasonable juror could have

found him eligible for the death penalty under [state] law.' "

(quoting

Sawyer, 112 S. Ct. at 2522-23

).

        As an initial matter, Baldwin asserts that the district court erred in not conducting an

evidentiary hearing on the issues of cause and prejudice for each of his defaulted claims. A habeas

corpus petitioner, however, is not entitled to an evidentiary hearing on the threshold issues of cause

and prejudice, or fundamental miscarriage of justice, unless he or she proffers "specific facts which

support a finding that one of [the] exceptions to the procedural default rule exists."

. We conclude that Baldwin has failed to make the requisite showings that would entitle him

to a hearing, or to overcome the procedural defaults.

        Baldwin cites as "cause" for his defaults the facts that: (1) the trial judge and prosecutor

practiced intentional racial discrimination and condoned a racially discriminatory system at the time


                                                  24
of his trial; and (2) his trial counsel rendered ineffective assistance in defaulting the claims. We

acknowledge that constitutionally ineffective assistance of trial counsel may establish cause for a

procedural default. See

Hill, 81 F.3d at 1024

. Because we concluded, however, that Baldwin's

counsel did not render ineffective assistance, Baldwin must demonstrate some other "cause" to

overcome the procedural bar. See Part II.A above (concerning the ineffective assistance of counsel

claim); see also

Hill, 81 F.3d at 1030

("[P]rocedurally-defaulted claims of ineffective assistance

cannot serve as cause to excuse a default of a second claim."). With regard to his first assertion of

cause, we reject it as overly broad. Assuming for the sake of argument that the trial judge and

prosecutor were practicing intentional racial discrimination, Baldwin fails to explain how their

conduct hindered his compliance with the procedural rules. Therefore, Baldwin is not entitled to

relief on his defaulted claims or an evidentiary hearing.

With regard to his failure to challenge the prosecutor's use of peremptory strikes, Baldwin

also asserts that "[w]ithin an environment which tolerated and encouraged racial prejudice and racial

discrimination, there existed cause for the Petitioner's failure to raise [this] claim...." We reject his

"environment" argument as meritless. In addition, we reject Baldwin's contention that he was unable

to raise his claim concerning the unacceptable risk of racial prejudice in his receiving the death

penalty because the "procedural context in which the default occurred impeded [him] from raising

the claim in a timely manner." Baldwin did not present the issue at trial, on direct appeal, or before

the state coram nobis court, which means in essence that he believes that in his case, the federal

court was the only proper "procedural context" in which he could even present this claim. This

assertion is without merit and warrants no further discussion. See Keeney v. Tamayo-Reyes,

504 U.S. 1

, 10,

112 S. Ct. 1715

118 L. Ed. 2d 318

(1992) ("Just as the State must afford the petitioner a


                                                   25
full and fair hearing on his federal claim, so must the petitioner afford the State a full and fair

opportunity to address and resolve the claim on the merits.").16

C. Voluntariness of Baldwin's Confessions17

        Baldwin contends that the state trial court failed to make a finding by a preponderance of

the evidence that his custodial statements were voluntary, because the court admitted the confessions

after stating that they were "prima facie voluntary." After considering, on its own initiative during

Baldwin's direct appeal, whether the trial court properly admitted Baldwin's custodial statements,

the Alabama Court of Criminal Appeals concluded that the trial court properly admitted the

statements. See

Baldwin, 372 So. 2d at 28-30

. Baldwin asserts that the independent determinations

of the Alabama appellate court and the district court may not remedy the trial court's failure to make

a preponderance finding prior to admitting the statement. We agree with the district court that




   16
     Under the prejudice prong, Baldwin must show that "the errors at trial actually and
substantially disadvantaged his defense so that he was denied fundamental fairness."

McCoy, 953 F.2d at 1261

. He must demonstrate "not merely, that the errors at ... trial created a
possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting
his entire trial with error of constitutional dimensions." Murray v. Carrier,

477 U.S. 478

, 494,

106 S. Ct. 2639

91 L. Ed. 2d 397

(1986) (internal quotation marks omitted). He has failed in this
regard with respect to all of his barred claims.

                Additionally, Baldwin has not demonstrated that a fundamental miscarriage of
        justice would result from this court's declining to consider the merits of his defaulted
        claims. Baldwin has not showed that he was "actually innocent" to overcome his
        guilt-phase defaults, or that "no reasonable juror could have found him eligible for the
        death penalty under [state] law[ ]"to overcome his sentencing-phase defaults.