WILLIAM H. STEELE, District Judge.
This death-penalty habeas action comes before the Court on petitioner's "Amended Petition for Writ of Habeas Corpus by Prisoner in State Custody under Death Sentence" (doc. 25). The respondent has filed a comprehensive Answer (doc. 33), and both sides have submitted additional detailed briefs (docs. 38, 39, 43, 46, 47, 48) setting forth their respective legal positions as to the dozens of grounds for relief presented in the petitioner's § 2254 motion. After careful review of these materials, as well as relevant portions of the 59-volume record of state-court proceedings, the Court finds that the § 2254 Petition is ripe for disposition, without an evidentiary hearing.
On the morning of December 12, 1997, Jarrod Taylor and his friend, Kenyatta McMillan, went to Steve Dyas Motors, a used car dealership in Mobile, Alabama, for the purpose of robbing it. As part of their scheme, Taylor feigned interest in purchasing a Ford Mustang. Over the course of several hours, spanning multiple visits to the dealership, Taylor test-drove the vehicle, negotiated a purchase price with Steve Dyas Motors employee Sherry Gaston, and completed paperwork for the sale. Taylor falsely explained to Steve Dyas Motors that his father-in-law in Louisiana was going to pay for the Mustang as an early Christmas gift to him.
Later in the day, most Steve Dyas Motors employees left the dealership to attend the company's annual Christmas party that evening. Sherry Gaston remained at the office, awaiting Taylor's return in order to complete the sale of the Mustang. The only other people on the premises were Sherry Gaston's husband, Bruce Gaston, and the owner and namesake of the business, Steve Dyas. When Taylor and McMillan entered the dealership for the last time, Taylor immediately shot Bruce Gaston in the chest with a .380 caliber pistol. Sherry Gaston and Steve Dyas ran for their lives in a desperate attempt to escape. McMillan stopped Dyas at gunpoint and forced him back to the office, where Taylor and McMillan demanded that he tell them where the money and the safe were. Dyas's answers were not to their liking, so Taylor put the .380 pistol to Dyas's head and pulled the trigger, killing him instantly. As for Sherry Gaston, she had locked herself in a bathroom. Taylor ordered her to come out and she complied, begging for her life; however, Taylor shot her in the head, killing her instantly.
Taylor and McMillan proceeded to take Sherry Gaston's purse and the wallets of Bruce Gaston and Steve Dyas. They also took the paperwork that Sherry Gaston had prepared for the sale of the Mustang, leaving copies on her desk in an effort to make it appear that Taylor had actually completed the purchase of the vehicle. As they prepared to leave the dealership, Taylor noticed Bruce Gaston move, so he walked over to Gaston and shot him in the head, killing him instantly. Taylor and McMillan left the premises, taking the Ford Mustang with them, and fled Mobile that night. They were apprehended in the stolen Mustang the following morning in Selma, Alabama, more than 150 miles away from the scene of the crime.
Four months later, on April 17, 1998, Taylor was indicted in Mobile County Circuit Court for four counts of capital murder, one for each of the deaths of Sherry Gaston, Bruce Gaston and Steve Dyas during a first-degree robbery, in violation of Alabama Code § 13A-5-40(a)(2), with the fourth count charging murder of two or more persons pursuant to one scheme or course of conduct, in violation of § 13A-5-40(a)(10). Taylor's counsel of record was Richard Horne, with Arthur Powell being appointed as co-counsel six days before the trial commenced for the primary purpose of assisting with the penalty phase.
The jury trial commenced on August 3, 1998, with Judge Douglas L. Johnstone presiding. The State presented its case-in-chief beginning on August 5, 1998. Taylor's accomplice, Kenyatta McMillan, was the star witness for the State, testifying to details of the murders and robberies, including that Taylor was the trigger man; however, the State also offered considerable corroborating evidence from multiple independent witnesses, Taylor's own statement, and forensic evidence. After five days of testimony, on August 11, 1998, the jury returned a unanimous verdict finding Taylor guilty of all four charged counts of capital murder. During the ensuing penalty phase conducted on August 11, 1998, the State called no witnesses. The defense put Taylor on the stand to express remorse, and called several other witnesses (including two of Taylor's sisters, his mother, and his minister) to testify in mitigation. The trial court charged the jury on two aggravating circumstances, to-wit: (i) the capital offense was committed in the course of a robbery, pursuant to Ala. Code § 13A-5-49(4); and (ii) the capital offense was especially heinous, atrocious or cruel, pursuant to Ala. Code § 13A-5-49(8). Upon deliberation, the jury recommended, by a vote of 7-5 as to each count, that Taylor be sentenced to life imprisonment without the possibility of parole.
After a sentencing hearing, Judge Johnstone entered a 12-page Judgment and Sentence on August 25, 1998. The trial judge opined that even if accomplice McMillan's testimony were discounted entirely, the corroborating and forensic evidence was sufficient to support Taylor's capital murder convictions. (Vol. 53, R-113, at 4.) Judge Johnstone further concluded beyond a reasonable doubt that the murders of Sherry Gaston, Bruce Gaston and Steve Dyas were heinous, atrocious and cruel, in that (i) "none of the victims offered any resistance whatsoever," (ii) "two of them pleaded for their lives and offered Taylor and McMillan all of the victims' money and property available," and (iii) "Taylor and McMillan deliberately and methodically murdered all three victims in the most certain way imaginable" (i.e., by pressing the .380 pistol against their heads and pulling the trigger). (Id. at 5.) The trial court likewise found beyond a reasonable doubt that the aggravating circumstance of capital murder committed in the course of a robbery had been proven beyond a reasonable doubt, given that (i) "the performance of the robbery scheme began before all three murders and continued during and after all three murders," (ii) "Taylor and McMillan consummated the robberies of the victims' money and belongings and the Ford Mustang immediately after the murders," and (iii) the murders were committed "to exert unauthorized control over the property and to overcome the victims' physical power of resistance to the taking of the property." (Id.) As to mitigating circumstances, the trial court considered numerous statutory and non-statutory mitigating circumstances advanced by Taylor's attorneys, and deemed them all to be either non-existent or entitled to little weight. (Id. at 6-10.)
Upon weighing the aggravating and mitigating circumstances, and also giving "great respect" to the jury's sentencing recommendation, the trial court concluded as follows:
(Id. at 11.) Judge Johnstone proceeded to sentence Taylor to death on each of the four counts of capital murder charged in the indictment. (Id. at 11-12.)
On September 24, 1998, Taylor, by and through his trial counsel of record, filed a Motion for New Trial, raising as grounds for relief the following: (i) insufficient corroboration of McMillan's testimony that Taylor was the trigger man; (ii) alleged error in allowing jailhouse witness Bryann Scott Clark to recant his trial testimony that McMillan had confessed to Clark that he had murdered the Gastons and Steve Dyas; (iii) McMillan's testimony was "incredible as a matter of law" because his trial testimony purportedly contradicted his previous statement under oath; (iv) alleged error in refusing to allow the State Medical Examiner to testify that the forensic evidence was consistent with victim Dyas lying on the floor when he was murdered, as opposed to "kneeling in prayer" while begging for his life as McMillan had testified; (v) alleged error in allowing Warden Rick Gaston to testify for the State as to jail communications despite having been present in the courtroom (in violation of "The Rule") during the testimony of jailhouse witnesses Clark and Robert Nolin; (vi) objections to certain specific findings in the Judgment and Sentence as relating to corroboration of McMillan's narrative; (vii) objection to the Judgment and Sentence's finding that Taylor was the leader, or at least a full partner, in the robberies and murders because such finding was based solely on McMillan's testimony; (viii) alleged error in the trial court's treatment of nonstatutory mitigating factors; (ix) alleged error by the trial court in rejecting the "lingering doubt" mitigating factor based solely on "rank speculation" and McMillan's testimony; and (x) alleged error for the trial court to substitute its opinion on penalty for that of the jury, thereby reducing the jury's role in the penalty phase "to a mere sham." (Vol. 1, R-2, at 166-84.) After an evidentiary hearing, Judge Johnstone denied the Motion for New Trial on October 6, 1998. (Vol. 10, R-40, at 1710-16.)
Attorney Horne (but not attorney Powell) continued to represent Taylor on direct appeal, with the assistance of newly appointed co-counsel, Glenn Davidson. In this appeal, defense counsel raised and litigated more than 60 distinct assignments of error, including the following: (i) the trial court erred in not allowing defense counsel to question the State's forensic pathologist about the position of Dyas's body at the time he was shot; (ii) the trial court erred in denying the defense's Batson motion during jury selection; (iii) improper admission into evidence of a blue bag found in Taylor's hotel room in Selma at the time of his arrest, which bag included papers showing that Taylor was in arrears on child support payments; (iv) error in failing to give the jury a limiting instruction on the proper use of evidence of collateral bad acts; (v) improper consideration of sentencing recommendations expressed by the victims' friends and family; (vi) failure to consider McMillan's more lenient sentence as a mitigating circumstance; (vii) erroneous conclusion that the murders were especially heinous, atrocious or cruel; (viii) suggestion that the jury was not functioning properly during the penalty phase; (ix) error in allowing the State to present Clark's recantation as rebuttal evidence; (x) error in denying the Motion for New Trial based on Clark's new testimony that his recantation was coerced; (xi) failure to instruct the jury on the lesser-included offense of robbery; (xii) error by the trial court in failing to conduct thorough voir dire of all jurors after an emotionally unstable juror was sent home; (xiii) lack of corroboration of McMillan's accomplice testimony, as required by Alabama Code § 12-21-222; (xiv) improper limits on the defense's opening statement at trial by restricting counsel from apprising the jury of McMillan's prior bad acts; (xv) due process claim that Taylor and his counsel were absent during a portion of jury selection; (xvi) failure to grant a continuance when Taylor's co-counsel was appointed just six days before jury selection; (xvii) failure to suppress Taylor's statement to law enforcement officers when he was not given a fair opportunity to invoke Miranda rights; (xviii) improper admission of a redacted audiotape of Taylor's statement; (xix) error in the trial court's failure to excuse sua sponte a veniremember who recognized McMillan and a relative of one of the victims, and who had heard details of the murders; (xx) improper denial of defense motion for veniremembers to complete questionnaires; (xxi) denial of defense motion for individual voir dire examination; (xxii) denial of defense motion to disqualify all potential jurors who were acquainted with victims or victims' family members; (xxiii) harassment and intimidation of jurors by the trial court; (xxiv) prosecutorial misconduct in closing argument by commenting on Taylor's silence; (xxv) improper closing argument by the State in misstating the law; (xxvi) prosecutorial misconduct in accusing defense counsel of lying and suborning perjury; (xxvii) improper impeachment by the State as to a defense witness's previous conviction; (xxviii) prosecutorial misconduct in improperly emphasizing that the murders took place at Christmastime; (xxix) improper argument by the State to sentence Taylor to death based on McMillan's conduct; (xxx) due process and equal protection violations by the trial court in overriding the jury's sentencing recommendation of life without parole; (xxxi) error by the trial court in granting the State's motion for blood samples from Taylor; (xxxii) erroneous admission of multiple State exhibits that were not clearly identified for the record; (xxxiii) assertion that the trial record was incomplete because of omission of certain exhibits and jury questionnaires; (xxxiv) improper admission of bank employee's hearsay statement about what sounded like a gunshot; (xxxv) improper admission of hearsay statements concerning Taylor's and McMillan's assessment of which banks would be suitable to rob; (xxxvi) improper admission of hearsay statement by Taylor about the need to carry a gun to protect himself; (xxxvii) error in allowing Warden Gaston to testify in rebuttal for the State after being present in the courtroom for the testimony of multiple defense witnesses; (xxxviii) improper exclusion of jurors who expressed reservations about the death penalty; (xxxix) double jeopardy violation in allowing the State to double-count the robbery component of the capital murder offense as an aggravating circumstance; (xl) denial of a fair and representative jury because the trial court bestowed heightened authority on the foreperson; (xli) error in allowing victims' family members to be present in the courtroom during trial; (xlii) death sentence for Taylor disproportional to McMillan's life sentence; (xliii) sufficiency of the evidence, given the State's reliance on uncorroborated accomplice testimony from McMillan; (xliv) improper admission of crime scene photographs of the victims; (xlv) electrocution is cruel and unusual punishment; (xlvi) error in failing to move the trial to another venue because of pretrial publicity; (xlvii) unconstitutional limits on out-of-court expenses for court-appointed attorneys in Alabama; (xlviii) improper jury instructions as to specific intent to kill; (xlix) improper jury instruction as to definition of murder; (l) incorrect jury instruction on reasonable doubt; (li) nonsensical jury instruction on felony murder; (lii) improper jury instruction allowing the jury to transfer McMillan's intent to Taylor; (liii) improper jury instruction as to alibi defense; (liv) improper jury instruction that the State was "entitled" to a conviction; (lv) trial court's summary of indictment destroyed presumption of judicial impartiality; (lvi) implication by the trial court that jury instructions were not individualized, leading the jury to shirk or minimize its responsibility; (lvii) improper jury instruction failing to advise jury that aggravating circumstances must be found beyond a reasonable doubt; (lviii) failure to instruct that each juror may consider mitigating circumstances independently of other jurors; (lix) failure to give defense's proposed instructions on burden of proof, presumption of innocence, reasonable doubt, and penalty-phase matters; (lx) impermissible imposition of four death sentences on Taylor for three murders; and (lxi) cumulative error.
In a comprehensive opinion dated February 4, 2000 and spanning nearly 70 pages in the Southern Reporter, the Alabama Court of Criminal Appeals methodically examined these myriad assignments of error, found them to be without merit, and affirmed Taylor's convictions and death sentences in all respects. See Taylor v. State, 808 So.2d 1148, 1148-1215 (Ala.Crim.App. 2000). The Alabama appellate court expressly concluded as follows: "We have searched the record and have found no error in the sentencing proceedings adversely affecting Taylor's rights.. . . [W]e have searched the entire proceedings under review and found no plain error or defect that has, or probably has, adversely affected any substantial right of Taylor's." Id. at 1214. The court also opined that "death is the proper sentence in this case" because "Taylor specifically, deliberately, methodically, and heartlessly formed the specific and particularized intent to kill Sherry Gaston, Bruce Gaston, and Steve Dyas, and then executed that intent equally deliberately, methodically, and heartlessly." Id. at 1215. Taylor's ensuing petition for rehearing was denied on March 24, 2000.
The Alabama Supreme Court granted Taylor's petition for certiorari review and, after hearing oral arguments, affirmed the Court of Criminal Appeals' judgment via a written opinion entered on March 9, 2001. See Ex parte Taylor, 808 So.2d 1215 (Ala. 2001). The Alabama Supreme Court noted that Taylor had raised a number of issues, and after consideration, concluded that "[a]ll these issues were fully and correctly addressed in the opinion of the Court of Criminal Appeals." Id. at 1217. The Alabama Supreme Court specifically wrote to only two such issues. As to Taylor's objection that the trial court's override of the jury's recommendation of a life sentence violated due process and equal protection, the Alabama Supreme Court held "that Alabama's capital-sentencing procedure does not result in the imposition of the death sentence in an arbitrary and capricious manner in violation of the Fourteenth Amendment" and that the trial court had properly applied that procedure in a manner that "met constitutional requirements and was not arbitrary, discriminatory, or fundamentally unfair." Id. at 1219. The Alabama Supreme Court also wrote to and rejected Taylor's argument that Alabama law did not provide a standard for appellate review of a trial judge's override decision in a particular case. Id. at 1219-20. Taylor's petition for rehearing was denied on July 6, 2001. The U.S. Supreme Court denied Taylor's petition for writ of certiorari on January 7, 2002. See Taylor v. Alabama, 534 U.S. 1086, 122 S.Ct. 824, 151 L.Ed.2d 705 (2002).
Having completed his direct appeal, Taylor subsequently commenced state post-conviction proceedings.
The 124-page Corrected First Amended Petition under Rule 32 filed by Taylor identified more than two dozen grounds for post-conviction relief, including the following: (1) Alabama's capital statute violates Ring/Apprendi; (2) Alabama's capital statute is arbitrary/capricious because of unfettered discretion afforded sentencing judge; (3) death penalty is unconstitutional because of unreliable application; (4) death by electrocution is cruel and unusual; (5) Taylor may not be executed via electrocution; (6) ineffective assistance of trial counsel for failure to disclose an actual conflict; (7) ineffective assistance of trial counsel at jury selection (inadequate voir dire, failure to challenge/examine jurors exposed to extra-judicial information, failure to challenge/examine jurors whose family members had been victims, failure to question jurors regarding bias); (8) ineffective assistance of trial counsel in failing to make a competent Batson objection; (9) ineffective assistance in failure to seek removal of a juror and investigation of juror misconduct; (10) ineffective assistance in failure to present an adequate defense (lack of diligence in pursuing pretrial motions, failure to retain experts and present forensic evidence to impeach State's witnesses, ineffectiveness during McMillan's testimony, failure to seek exclusion of irrelevant/prejudicial evidence, failure to investigate facts, failure to conduct proper cross-examination, failure to point out contradictions in State witnesses' testimony, failure to object to prejudicial comments by State during opening/closing, failure to ensure proper jury charges); (11) ineffective assistance at sentencing phase (failure to call Taylor's brother Jeff to testify, failure to develop mitigation evidence regarding Taylor's son, failure to conduct a mitigation investigation of Taylor's life and background, failure to retain psychiatric expert because of "scheduling issues," failure to hire mitigation expert, failure to object to penalty phase jury charge regarding weighing of aggravating and mitigating circumstances, failure to explain "misprision of a felony" to jurors); (12) ineffective assistance for failure to object to trial errors; (13) ineffective assistance for failure "ardently" to pursue motion for new trial; (14) ineffective assistance for failure to object to trial judge's "partisan participation;" (15) ineffective assistance because of inadequate compensation; (16) ineffective assistance based on cumulative errors; (17) race and gender discrimination in formation of petit jury; (18) "death qualification" of jury violated Taylor's right to impartial jury; (19) juror misconduct (juror Davis answered questions untruthfully and made biased statements before being removed, premature deliberations); (20) trial judge was legally disqualified for accepting campaign contributions from Taylor's counsel; (21) Taylor's constitutional rights were violated because the trial judge was in the midst of an election campaign at time of trial and sentencing; (22) the trial judge was assigned Taylor's case in a manner that violated due process; (23) double jeopardy in the imposition of a distinct death sentence for killing of three people pursuant to one course of conduct, plus death sentences for each of the three murders; (24) insufficient evidence of "heinous, atrocious or cruel" aggravating circumstance; (25) State "apparently" violated Brady because it "may have withheld information regarding Warden Rick Gaston and conversations concerning the recanted testimony of Bryan Scott Clark," "may have withheld information regarding Kenyatta McMillan's statements to the police," and "may also have withheld information regarding interviews with Cherelle Carlton and Tiffany Carlton;" (26) error in failure to allow individual voir dire of venire; and (27) cumulative error. (Vol. 22, R-56, at 831-959.)
The course of Taylor's Rule 32 proceedings will be addressed in considerable detail infra, in the context of this Court's procedural default analysis. In summary, however, the State filed motions on May 27, 2003, seeking to dismiss many of the claims presented in Taylor's Corrected First Amended Rule 32 Petition. (Vol. 25, R-61, R-64, R-65, R-71.) Following briefing, on October 23, 2003, the trial court entered a series of four orders granting the State's motions to dismiss and dismissing many aspects of Taylor's Rule 32 petition. (Vol. 53, R-117, R-118, R-119, R-120.) The trial court also entered an order granting the State's motion to prohibit Taylor from making further amendments to his Rule 32 petition. (Vol. 53, R-121.) Following a hearing, the trial court entered a final order on August 1, 2005, summarily dismissing Taylor's Rule 32 petition in its entirety. (Vol. 54, R-122.) After several years of litigation in Alabama's appellate courts, Taylor's Rule 32 proceedings were remanded to the trial court on the grounds that certain claims remained pending after the October 2003 rulings, such that the trial court's summary dismissal of Taylor's entire petition in August 2005 was improper. (Vol. 53, R-128 at 10.) Upon this limited remand to Mobile County Circuit Court, Taylor made multiple attempts to amend his Rule 32 petition further to raise numerous new grounds for relief. (Vol. 34, R-93; vol. 46, R-101.) The trial court disallowed those proposed amendments as impermissible pursuant to Alabama law and procedure. (Vol. 53, R-129.) Taylor's attempts to obtain a writ of mandamus to allow such amendments to his Rule 32 petition were denied by the Alabama appellate courts. (Vol. 53, R-130.) After an evidentiary hearing, the trial court entered an order dismissing Taylor's Rule 32 petition on May 23, 2012. (Vol. 53, R-131.) Taylor's appeals from that ruling were denied by the Alabama Court of Criminal Appeals on April 23, 2013 and by the Alabama Supreme Court on April 25, 2014. (Vol. 53, R-134, R-135.)
On September 22, 2014, Taylor filed his Petition for Writ of Habeas Corpus (doc. 5) pursuant to 28 U.S.C. § 2254. Nearly three months later, on December 19, 2014, Taylor filed a 283-page Amended Petition for Writ of Habeas Corpus setting forth 11 grounds for federal habeas relief (along with dozens of embedded sub-grounds and sub-issues), under the following headings: (i) the State exercised peremptory challenges in a manner that violated equal protection and due process; (ii) the State's misconduct (in knowingly using false testimony from McMillan and others, and failing to disclose impeachment evidence) violated Taylor's right to a fair trial; (iii) ineffective assistance of trial counsel in myriad respects during jury selection, the guilt phase, the penalty phase, and the motion for new trial; (iv) lack of an impartial tribunal; (v) use of improper and unconstitutional jury instructions during the guilt phase and penalty phase; (vi) insufficient evidence of capital murder; (vii) trial court's reliance on improper evidence to override jury's recommendation of life sentence; (viii) cumulative error; (ix) McMillan's confession requires vacatur of Taylor's convictions and sentences; (x) Alabama courts wrongfully deprived Taylor of his right fully and fairly to litigate his claims; and (xi) the Alabama capital statute is unconstitutional on its face and as applied to Taylor in many respects. (Doc. 25.)
The undersigned has carefully examined Taylor's Amended Petition for Writ of Habeas Corpus (the "§ 2254 Petition"), the State's 134-page Answer (doc. 33), Taylor's 72-page Reply (doc. 43), all relevant portions of the 59-volume record of the underlying proceedings, Taylor's Exhibits A-H appended to his § 2254 Petition, Taylor's Motion for Discovery and Evidentiary Hearing (doc. 38), the State's Response (doc. 39) to same, and the parties' supplemental briefs concerning the implications of Hurst v. Florida (docs. 46-48). The Court finds that Taylor's § 2254 Petition is ripe for adjudication at this time.
Taylor's federal habeas petition was filed long after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The applicable statutory framework sets forth three distinct standards of review, depending on whether the state court decided the claim on the merits, whether the state court refused to decide the claim on the merits because it was barred by state procedural rules, or whether the bar on which the state court relied was inadequate to preclude federal review. The Eleventh Circuit has summarized these principles as follows: "[AEDPA] establishes a highly deferential standard of review for federal claims that have been adjudicated on the merits in State court proceedings. . . . On the other hand, if a state court refused to decide a claim on the merits because the claim was barred by state procedural rules, we are generally, though not always, prevented from reviewing the claim at all.. . . [R]esting between AEDPA deference and procedural default is a third path. If the state court did not reach the merits of a petitioner's claim based on some ground that is not adequate to bar federal review, we must review the claim de novo." Williams v. Alabama, 791 F.3d 1267, 1272-73 (11
Under the highly deferential AEDPA standard, a federal court may not grant habeas relief with respect to any claim adjudicated on the merits in state court unless the state court's determination "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); see also Harrington v. Richter, 562 U.S. 86, 100, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) ("Federal habeas relief may not be granted for claims subject to § 2254(d) unless it is shown that the earlier state court's decision was contrary to federal law then clearly established in the holdings of this Court, . . . or that it involved an unreasonable application of such law, . . . or that it was based on an unreasonable determination of the facts in light of the record before the state court") (citations and internal quotation marks omitted). It bears emphasis that the deferential standard of review prescribed by § 2254(d) "is limited to claims that have been `adjudicated on the merits' in state court. A decision that is based on state procedural grounds is not an adjudication on the merits." Williams, 791 F.3d at 1273.
Where § 2254(d) applies, "the obstacles that a habeas petitioner faces . . . are daunting." Evans v. Secretary, Florida Dep't of Corrections, 699 F.3d 1249, 1267 (11
As noted, when a state court refuses to decide a federal claim on state procedural grounds, the federal habeas court is generally precluded from reviewing the claim at all. See, e.g., Williams, 791 F.3d at 1273 ("[I]t is well established that federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that is independent of the federal question and adequate to support the judgment.") (citation omitted); Conner v. Hall, 645 F.3d 1277, 1287 (11
Section 2254 also generally requires petitioners to exhaust all available state-law remedies. In that regard, "[a] petitioner must alert state law courts to any federal claims to allow the state courts an opportunity to review and correct the claimed violations of his federal rights." Lamarca v. Secretary, Dep't of Corrections, 568 F.3d 929, 936 (11
A critical threshold issue in the adjudication of Taylor's § 2254 Petition is whether this Court may properly hear certain claims that Taylor presented to the state courts solely in the form of a Proposed Second Amended Rule 32 Petition (the "Second Amended R32 Petition"). The state courts disallowed Taylor's Second Amended R32 Petition on state procedural grounds; therefore, the new claims that Taylor sought to raise via that iteration of his Rule 32 petition were never adjudicated on the merits by the state courts.
To recap the state postconviction proceedings, on May 6, 2003, Taylor filed a 124-page, 264-paragraph Corrected First Amended Rule 32 Petition (the "Corrected First Amended R32 Petition") in Mobile County Circuit Court. (Vol. 22, R-56.) On October 23, 2003, Mobile County Circuit Judge Herman Thomas entered a batch of four orders summarily dismissing particular aspects of the Corrected First Amended R32 Petition on grounds of Rule 32.2(a) procedural bar (Vol. 53, R-117), untimeliness under Rule 32.2(c) limitations period (Vol. 53, R-118), insufficient pleading under Rules 32.3 and 32.6(b) (Vol. 53, R-119), and failure to present material issues of fact or law under Rule 32.7(d) (Vol. 53, R-120).
Nearly two years later, on August 1, 2005, Judge Thomas entered a three-page "Final Order" in which he found that "all of the claims in Petitioner Taylor's corrected first amended Rule 32 petition have been dismissed" and ordered, adjudged and decreed that such petition was dismissed. (Vol. 53, R-122.) After a somewhat circuitous series of appeals, the Alabama Court of Criminal Appeals issued an order on October 1, 2010, in which it concluded that because certain "claims remained pending after the circuit court entered the orders of partial dismissal, the circuit court erred in entering its August 1, 2005, final order summarily dismissing the petition in its entirety; we therefore remand the cause to the trial court for resolution of the pending claims." (Vol. 53, R-128, at 10.) The state appellate court also considered and rejected each of Taylor's numerous arguments on appeal concerning the claims dismissed by the circuit court via the quartet of October 2003 orders. (Id. at 10-19.) Ultimately, the Alabama Court of Criminal Appeals concluded its October 1, 2010 order as follows:
(Id. at 19.)
On the heels of this limited remand to the Mobile County Circuit Court, Taylor filed a "Motion for Leave to File the Second Amended Petition for Relief from Judgment Pursuant to Rule 32" (Vol. 34, R-93, at 267-80), on September 19, 2011. Taylor appended to this motion his proposed Second Amended R32 Petition, which numbered 171 pages and 397 paragraphs (an increase of some 47 pages and 133 paragraphs relative to its predecessor, which was itself the third iteration of Taylor's Rule 32 petition). (Vols. 34 & 35, R-93, at 283-460.) In comparison with the First Amended R32 Petition, the proposed Second Amended R32 Petition would have injected more than a dozen new (or greatly expanded) claims into Taylor's Rule 32 proceedings.
Undaunted, Taylor took one more run at amending his Rule 32 petition in the Mobile County Circuit Court. On April 9, 2012, he filed a Motion for Leave to File Revised Second Amended Petition (Vol. 46, R-101). In the Motion, Taylor explained that his proposed Revised Second Amended R32 Petition was identical to the originally proposed Second Amended R32 Petition, except for newly added paragraphs 23-25, 162, 362-70 and 411-20. (Id. at 865.)
(Vol. 53, R-134, at 23-24.)
In his § 2254 Petition, Taylor seeks to pursue as federal habeas claims many (if not all) of the new claims pleaded in the Second Amended R32 Petition and Revised Second Amended R32 Petition that were disallowed by the state courts. The State objects to all such claims on failure-to-exhaust grounds. Technically and as recognized by Taylor (see doc. 43, at 8 n.2), the State's objection is properly framed in the terminology of the related doctrine of procedural default, rather than exhaustion.
To ascertain whether a state court's procedural ruling constitutes an independent and adequate state rule of decision, federal habeas courts examine whether the following three requirements are satisfied: (i) "the last state court rendering a judgment in the case must clearly and expressly say that it is relying on state procedural rules to resolve the federal claim without reaching the merits of the claim;" (ii) "the state court decision must rest solidly on state law grounds;" and (iii) "the state procedural rule must be adequate; i.e., it may not be applied in an arbitrary or unprecedented fashion." Boyd, 697 F.3d at 1336 (citations omitted). "We defer to the state court's findings regarding procedural default." Ferguson v. Secretary for Dep't of Corrections, 580 F.3d 1183, 1193 (11
The State's position is that all new claims asserted by Taylor in the proposed Second Amended R32 Petition and Revised Second Amended R32 Petition are procedurally defaulted, and therefore barred from federal habeas review in these § 2254 proceedings, because the state courts' rejection of those claims was based on an independent and adequate state procedural rule.
Again, the state courts refused to allow or adjudicate the merits of Taylor's Second Amended R32 Petition (or Revised Second Amended R32 Petition) based on their determination that the Mobile County Circuit Court lacked jurisdiction to allow Taylor to amend his Rule 32 petition following the Court of Criminal Appeals' limited remand order dated October 1, 2010. The October 1 ruling had two critical components, to-wit: (i) it remanded Taylor's Rule 32 action to the circuit court "for resolution of those claims that the parties agreed had not been dismissed by the orders of partial dismissal;" and (ii) it "affirm[ed] the circuit court's judgment as to remaining issues raised by Taylor in his brief on appeal." (Vol. 53, R-128, at 19.) The determination that the circuit court lacked jurisdiction to allow Taylor to amend his Rule 32 petition post-remand was firmly rooted in an Alabama procedural rule that "[o]n remand, the issues decided by the appellate court become law of the case and the trial court's duty is to comply with the appellate mandate according to its true intent and meaning, as determined by the directions given by the reviewing court." Hyde v. State, 894 So.2d 808, 810 (Ala.Crim.App. 2004) (citation and internal quotation marks omitted). A corollary of that rule is that "any act by a trial court beyond the scope of an appellate court's remand order is void for lack of jurisdiction." S.A.R. v. State, 99 So.3d 1260, 1264 (Ala.Crim.App. 2012) (citation omitted).
Alabama appellate courts have repeatedly applied these principles to hold that a trial court lacks authority to allow an amendment of a Rule 32 petition on limited remand from an Alabama appellate court. See, e.g., Hyde, 894 So.2d at 810 ("The circuit court was limited to the scope of our remand order. Here, the circuit court exceeded that scope in directing Hyde to supplement and amend his Rule 32 petition. Therefore, the action taken in the circuit court is void for lack of jurisdiction.").
In response, Taylor leans heavily on the third prong of the procedural default test, to-wit: the requirement that "the state procedural rule must be adequate; i.e., it may not be applied in an arbitrary or unprecedented fashion." Boyd, 697 F.3d at 1336 (citation omitted); see also Upshaw v. Singletary, 70 F.3d 576, 579 (11
The gravamen of Taylor's argument is that the state courts' refusal to allow him to file his Second Amended R32 Petition and Revised Second Amended R32 Petition was "contrary to the State's firmly-established and regularly followed procedural rules." (Doc. 43, at 8.) Taylor is wrong. As discussed supra, the Alabama courts held that the Mobile County Circuit Court lacked jurisdiction to allow Taylor to amend his Rule 32 petition in September 2011 and April 2012 because (i) the Rule 32 proceedings returned to Mobile County Circuit Court in October 2010 on limited remand from the Alabama Court of Criminal Appeals, which had affirmed the Circuit Court's judgment in many respects but remanded for the narrow purpose of resolving certain specifically enumerated claims; (ii) nothing in the appellate court's remand order would have authorized amendment of Taylor's Rule 32 petition to allow him to inject new and additional claims into the state post-conviction proceedings; and (iii) under well-settled Alabama law, any act by a trial court beyond the scope of an appellate court's remand order is void for lack of jurisdiction. The Alabama courts' rejection of Taylor's post-remand requests to amend his Rule 32 petition on grounds that the Circuit Court lacked jurisdiction to allow same was fully consistent with a substantial line of Alabama appellate authority in which amendments have been disallowed under similar circumstances for similar reasons. See, e.g., Ward v. State, ___ So.3d ____, 2017 WL 543138, *4 n.2 (Ala.Crim.App. Feb. 10, 2017) (where Alabama Supreme Court "limited the remand proceedings to the issue of equitable tolling . . ., the circuit court correctly prohibited any amendment to Ward's petition that addressed issues that were outside the scope of the Supreme Court's remand instructions"); Morrissette v. State, 183 So.3d 1009, 1012 n.3 (Ala.Crim.App. 2014); Bryant v. State, 181 So.3d 1087, 1136 (Ala.Crim.App. 2014); S.A.R. v. State, 99 So.3d 1260, 1264 (Ala.Crim.App. 2012); Hyde v. State, 894 So.2d 808, 810 (Ala.Crim.App. 2004).
In view of these authorities, the Court readily concludes that the state procedural bar was "adequate," in the sense that the rule in question was firmly established, regularly followed, and not applied in an arbitrary or unprecedented fashion against Taylor.
Another critical, disputed issue of procedural default in this case involves the application of Rule 28(a)(10) of the Alabama Rules of Appellate Procedure to Taylor's claims. That state procedural rule provides, in relevant part, that an appellant's brief must include "[a]n argument containing the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on." Rule 28(a)(10), Ala.R.App.P. The State's position is that various of Taylor's habeas claims are barred from federal habeas review because the Alabama courts dismissed them not on the merits, but for noncompliance with Rule 28(a)(10) (i.e., based on the inadequacy of Taylor's appellate brief).
In its opinion on state post-conviction review entered on October 1, 2010, the Alabama Court of Criminal Appeals paused before addressing the merits, explaining that "we are compelled to address whether a majority of the arguments Taylor presents in his brief on this issue comply with Rule 28(a)(10), Ala. R.App. P." (Vol. 53, R-128, at 14.) The appellate court proceeded to make the following determinations, among others, in applying Rule 28(a)(10) to Taylor's appellate brief: (i) "Parts III.C.2. — III.C.5. and portions of Part III.D. of Taylor's brief consist almost entirely of scant summaries of the claims from Taylor's petition that, he says, should not have been summarily dismissed" (Vol. 53, R-128, at 14); (ii) "Making a nonspecific reference to `extensive legal arguments' in the Rule 32 petition does not comply with Rule 28(a)(10)" (id.); (iii) "in many of the arguments in Parts III.C. and III.D. of his brief, Taylor makes only general allegations and refers only to paragraphs of the petition without presenting any substantive legal or factual argument at all" (id.); and (iv) "many `arguments' in Taylor's brief consist of little more than a cursory summary of the claims from the petition" (id. at 15).
After careful examination of the requirements of Rule 28(a)(10), as interpreted by Alabama appellate courts, and the contents of Taylor's brief (referencing specific examples of briefing inadequacies), the Alabama Court of Criminal Appeals ruled that Taylor's appellate briefing fell short of that procedural rule in numerous respects. In particular, the appellate court held as follows:
(Vol. 53, R-128, at 16.) In so concluding, the Alabama Court of Criminal Appeals found that the following categories of arguments in Taylor's appellate brief were waived for noncompliance with Rule 28(a)(10): "III.C.1 — death by lethal injection; III.C.2 (a)-(h); III.D.2 (a)-(r); and III.D.3(b) — ineffective assistance of counsel; III.C.3(a); III.D.3(a)-(b) — the jury was not impartial; III.C.4 (a)-(c) — the judge was not impartial; III.C.5 — prosecutorial misconduct; III.D.1(c) and (e) — constitutionality of the death penalty; and III.D.4(a)-(d) — capital sentencing, voir dire, rulings at trial." (Id.)
The result of this determination was that the Alabama Court of Criminal Appeals deemed Taylor's appellate arguments on all of these issues waived, and engaged in no merits analysis or discussion of any of them. At most, the appellate court observed in passing that "having reviewed Taylor's petition thoroughly — along with the circuit court's orders and the record in this case, even if we had addressed what we understand to have been Taylor's arguments in his brief to this Court, we would nonetheless affirm the circuit court's dismissal of each of those claims." (Vol. 53, R-128, at 16-17.)
Again, the basic thrust of Rule 28(a)(10) is its requirement that an appellant's brief must set forth "[a]n argument containing the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on." Rule 28(a)(10), Ala.R.App.P. "The purpose of Rule 28, Ala.R.App.P., outlining the requirements for appellate briefs, is to conserve the time and energy of the appellate court and to advise the opposing party of the points he or she is obligated to make." Ex parte Borden, 60 So.3d 940, 943 (Ala. 2007). After all, the Alabama Supreme Court has explained, "[i]t is not the function of this Court to do a party's legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument." Id. (citations omitted); see also Wagner v. State, ___ So.3d ____, 2015 WL 5658730, *2 n.3 (Ala. Sept. 25, 2015) ("It is well settled that it is not the function of this Court to create legal arguments for the parties before us."). As such, "[t]o obtain review of an argument on appeal, an appellant must provide citations to relevant cases or other legal authorities and an analysis of why those cases or other authorities support an argument that an error occurred and that the alleged error should result in reversal." Alonso v. State, ___ So.3d ____, 2016 WL 661274, *13 (Ala.Crim.App. Feb. 12, 2016) (citations omitted).
Alabama appellate courts have frequently applied Rule 28(a)(10) (and its predecessor, Rule 28(a)(5)) to find a waiver of arguments presented on appeal where an appellant has failed to offer specific legal authority, argument and adequate factual recitation to support the contention that the trial court's ruling was erroneous. See, e.g., Alonso, 2016 WL 661274, at *13-15; C.B.D. v. State, 90 So.3d 227, 239 (Ala.Crim.App. 2011) ("Failure to comply with Rule 28(a)(10) has been deemed a waiver of the issue presented.").
That said, Alabama law specifies that Rule 28(a)(10) is not to be liberally or gratuitously applied in the interests of convenience or expedience to whittle down a voluminous appeal. Indeed, the Alabama Supreme Court has cautioned that "waiver of an argument for failure to comply with Rule 28(a)(10) . . . has been limited to those cases where there is no argument presented in the brief and there are few, if any, citations to relevant legal authority, resulting in an argument consisting of undelineated general propositions." Borden, 60 So.3d at 944.
As set forth supra, the Alabama Court of Criminal Appeals determined that Taylor's arguments on appeal relating to two dozen claims presented his First Amended R32 Petition had been waived by virtue of his non-compliance with Rule 28(a)(10). In these § 2254 proceedings, the State asserts that the Court of Criminal Appeals' application of the Rule 28(a)(10) waiver doctrine to Taylor's claims constitutes an adequate, independent state procedural ruling that bars federal habeas review. For his part, Taylor urges the Court to find no procedural default, reasoning that the Alabama appellate court's reliance on Rule 28(a)(10) in his state post-conviction appeal proceedings flunks the federal requirement that "the state procedural rule must be adequate; i.e., it may not be applied in an arbitrary or unprecedented fashion." Boyd, 697 F.3d at 1336 (citation omitted); see also Upshaw v. Singletary, 70 F.3d 576, 579 (11
The centerpiece of Taylor's "adequacy" argument is that Alabama appellate authorities confirm that his Rule 32 appellate brief actually did comport with Rule 28(a)(10). Specifically, Taylor likens his state post-conviction brief to that deemed sufficient in Ex parte Borden. (Doc. 43, at 16-18.) In that case, the Alabama Supreme Court found error in the Alabama Court of Criminal Appeals' determination of waiver pursuant to Rule 28(a)(10), where the petitioner's appellate brief "included 22 pages of fact addressing whether the trial court erred in summarily dismissing the ineffective-assistance-of-counsel claims . . . [and] 11 pages of argument regarding ineffective assistance, including some 25 citations to caselaw, along with explanations and quotations from the cited cases. . . . Borden's brief is sufficient to apprise the Court of Criminal Appeals of Borden's contentions with regard to his ineffective-assistance-of-counsel claims." Borden, 60 So.3d at 944.
A fundamental problem with Taylor's contention that his state post-conviction appellate brief actually did comport with Rule 28(a)(10) is that he presents that assertion only in the most general and conclusory of terms.
First, in Claim IV.B.6 of his Corrected First Amended R32 Petition, Taylor alleged ineffective assistance of trial counsel in "fail[ing] to make contemporaneous objections to throughout [sic] the trial to Court errors and numerous acts and omissions of the State and its witnesses." (Vol. 22, R-56 at 915.) In October 2003, the circuit judge dismissed Claim IV.B.6 as insufficiently pleaded under Rules 32.3 and 32.6(b) of the Alabama Rules of Criminal Procedure. (Vol. 53, R-119, at 2.)
Second, in Claim IV.B.9 of his Corrected First Amended R32 Petition, Taylor alleged that "trial counsel was ineffective in part because of grossly inadequate compensation." (Vol. 22, R-56 at 918.) In October 2003, the circuit judge dismissed Claim IV.B.9 as insufficiently pleaded under Rules 32.3 and 32.6(b). (Vol. 53, R-119, at 3.) Taylor appealed. In order to satisfy Rule 28(a)(10) as to that particular issue, Taylor was obliged to include in his appellate brief an adequate recitation of facts relied on, citations to relevant legal authorities, and an analysis of why those authorities support an argument of reversible error. Instead, Taylor's appellate brief on this claim consisted of a general, minimally supported description of the provisions of Rules 32.3 and 32.6(b) (Vol. 31, R-89, at 39-41), coupled with a conclusory assertion that "Claim IV.B.9 sets forth the statutory maximum compensation that court-appointed attorneys in capital cases could have earned at the time of Mr. Taylor's trial and then provides substantial case law to show that this level was inadequate. (C. 918-919.)" (Id. at 55.) Petitioner's brief said nothing further on this issue.
Third, in Claim VII.C of his Corrected First Amended R32 Petition, Taylor maintained that "the evidence as to the `heinous, atrocious or cruel' aggravating circumstance is insufficient as a matter of law." (Vol. 22, R-56 at 949.) In October 2003, the circuit judge dismissed Claim VII.C pursuant to Rule 32.7(d) of the Alabama Rules of Criminal Procedure because it presented "no material issues of fact or law." (Vol. 53, R-120, at 1, 4.)
Considered in the context of these three specific examples (which are representative of the kinds of arguments presented in Taylor's Rule 32 appellate brief that the Alabama Court of Criminal Appeals deemed insufficient under Rule 28(a)(10)), the state appellate court's conclusion that Taylor's briefing on these issues flunks Rule 28(a)(10) is reasonable. Recall that the Alabama Court of Criminal Appeals lamented that Taylor made "only general allegations and refer[red] only to paragraphs of the petition without presenting any substantive legal or factual argument at all in an attempt to demonstrate that the circuit court erred when it dismissed those claims." (Vol. 53, R-128, at 14.) That court accurately characterized Taylor's appellate brief as featuring "many `arguments' . . . [that] consist of little more than cursory summary of the claims from the petition." (Id. at 15.) And it properly remarked that "[f]or many of the issues raised in the brief, Taylor presents no discussion of the facts or the law in the form of an argument demonstrating why the circuit court's dismissal of the specific claims was in error." (Id. at 16.)
Again, the purpose of Rule 28(a)(10) is to require appellants to do their own heavy lifting, and in this manner to obviate the need for state appellate courts to perform an appellant's research for him, to generate and develop an appellant's arguments for him, or to engage in guesswork or speculation as to why — exactly — the appellant believes the lower court got it wrong. The authorities cited in the Alabama Court of Criminal Appeals' ruling in Taylor's case emphasize the point. (Vol. 53, R-128, at 14-15.) It was incumbent on Taylor, as the appellant, to explain in his appellate brief in specific terms (both legally and factually) why he believed it was reversible error for Circuit Judge Thomas to conclude that the enumerated claims flunked Taylor's "heavy pleading burden" under Rules 32.3 and 32.6, and/or failed to present material issues of fact or law under Rule 32.7(d). Rather than explaining in specific terms in his appellate brief which aspects of each claim he felt were sufficient to satisfy the aforementioned procedural rules, or identifying case authorities relating to these procedural rules that might support his theory that the circuit court had misapplied them, Taylor instead elected to present his appellate "arguments" at a high degree of abstraction and in conclusory form, mostly leaving the Alabama Court of Criminal Appeals to its own devices to figure out why, specifically, he contended that each enumerated claim complied with the terms of Rules 32.3, 32.6 and 32.7(d), and why he contended that the circuit judge's ruling to the contrary was incorrect. Under these circumstances, the Court does not find that there was anything arbitrary or manifestly unfair about the Alabama Court of Criminal Appeals' rejection of his appellate arguments on various issues for noncompliance with Rule 28(a)(10).
In the alternative, Taylor posits that the Rule 28(a)(10) waiver is not an adequate, independent state ground barring federal habeas review because "Rule 28(a)(10) is not and was not firmly established and regularly followed." (Doc. 43, at 18.)
Finally, Taylor balks that the state courts' application of Rule 28(a)(10) to his appellate brief "was contrary to both Alabama Supreme Court precedent and the stated policy rationale for Rule 28(a)(10)." (Doc. 43, at 20.) In so arguing, Taylor relies on the Alabama Supreme Court's decision in Borden; however, such reliance is misplaced. The Borden Court recognized that Rule 28(a)(10) is violated where an appellant's brief presents "an argument consisting of undelineated general propositions," the effect of which is improperly to shift to the appellate court the function of "mak[ing] and address[ing] legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument." Borden, 60 So.3d at 943-44. It was entirely reasonable of the Alabama Court of Criminal Appeals to conclude that Taylor's brief did precisely that as to the enumerated claims. From Taylor's cursory summaries of his petition and his conclusory, unsupported general assertions that those claims satisfied the subject procedural rules for noncompliance with which the circuit court had dismissed them, Taylor furnished no road map for the appeals court and provided no specific, concrete explanations for why he felt the circuit court was wrong on a claim-by-claim basis. Instead, the broad, sweeping generalizations advanced in his appellate brief essentially told the Alabama Court of Criminal Appeals, "If you go read my whole petition and do the research yourself, you will figure it out and you will see that I actually did follow Rules 32.3, 32.6 and 32.7(d) and that the circuit court erred." The whole purpose of Rule 28(a)(10) is to prevent litigants from shifting that kind of workload onto the appellate courts to identify and develop the
In sum, then, the Alabama Court of Criminal Appeals' procedural dismissal of these claims was based on an independent and adequate state ground. Such claims are procedurally defaulted from federal habeas review. See generally Smith v. Texas, 550 U.S. 297, 313, 127 S.Ct. 1686, 167 L.Ed.2d 632 (2007) ("As a general matter, and absent some important exceptions, when a state court denies relief because a party failed to comply with a regularly applied and well-established state procedural rule, a federal court will not consider that issue.").
The State has also asserted that various claims presented in Taylor's § 2254 petition are procedurally barred because the Alabama courts rejected them on state post-conviction review pursuant to Rule 32.2(a), Ala.R.Crim.P. That rule provides, in part, that a Rule 32 petitioner "will not be given relief under this rule based upon any ground . . . [w]hich could have been but was not raised at trial," or "[w]hich could have been but was not raised on appeal," subject to an exception that has no application here. Rule 32.2(a)(3) & (5), Ala.R.Crim.P.
Alabama courts have routinely applied this rule to bar consideration in Rule 32 proceedings of grounds for relief that could have been, but were not, raised at trial and/or on direct appeal. See, e.g., Moody v. State, 95 So.3d 827, 843 (Ala.Crim.App. 2011) ("[T]he circuit court correctly found that all of Moody's claims regarding pretrial counsel's effectiveness are precluded by Rule 32.2(a)(3) and (a)(5), because they could have been, but were not, raised and addressed at trial and then on appeal. Therefore, summary dismissal of those claims was proper.") (footnote omitted).
In Taylor's Rule 32 proceedings, Circuit Judge Thomas dismissed various claims raised in the Corrected First Amended R32 Petition as barred under Rules 32.2(a)(3) and (5). The Alabama Court of Criminal Appeals affirmed some of those dismissals on Rule 32.2(a) grounds, in many instances without identifying the subsections of Rule 32.2(a) on which it was relying. There was not a single claim for which the Alabama appellate court expressly stated it was affirming the dismissal because of Taylor's failure to raise the issue at trial and on direct appeal (i.e., violation of both Rule 32.2(a)(3) and (5)). This creates an obvious problem for application of the adequate state ground doctrine, which requires, inter alia, that "the last state court rendering a judgment in the case must clearly and expressly say that it is relying on state procedural rules to resolve the federal claim without reaching the merits of the claim." Boyd, 697 F.3d at 1336 (citations omitted). Here, the difficulty is that the appellate court did not specify
To compound the confusion and uncertainty, Taylor correctly points out that the State's Answer (doc. 33) to his § 2254 petition does not expressly call for rejection of specific claims in that petition based on the procedural bar created by Rule 32.2(a)(3) and Rule 32.2(a)(5). The closest the State comes is, in the context of Taylor's Batson claim predicated on alleged gender-based strikes (Claim I), an argument that "the circuit court properly dismissed this claim because it could have been raised at trial (Rule 32.2(a)). The Court of Criminal Appeals affirmed, holding that this claim was properly dismissed on the basis of Rule 32.2(a)." (Doc. 33, at 29-30.) The State's Answer says nothing about dismissal of the claim for noncompliance with Rule 32.2(a)(5), and does not argue for imposition of a procedural bar based on violations of Rules 32.2(a)(3) and (a)(5).
Because of the murkiness in the Alabama Court of Criminal Appeals treatment of the Rule 32.2(a) issue in this case, coupled with the State's lack of clarity in its Answer in not specifically arguing that any of Taylor's federal habeas claims are procedurally barred under Rules 32.2(a)(3) and (a)(5), this Court will not deem the subject claims procedurally defaulted on that ground for purposes of federal habeas review. See, e.g., Smith v. Secretary, Dep't of Corrections, 572 F.3d 1327, 1340 (11
The net result of the foregoing discussion is that a significant subset of Taylor's federal habeas claims set forth in his § 2254 petition are procedurally defaulted because those claims were (i) presented to the state courts only via the disallowed Second Amended R32 Petition or Revised Second Amended R32 Petition, and were summarily dismissed for want of jurisdiction as being outside the scope of the appeals court's limited remand; or (ii) summarily dismissed by the Alabama Court of Criminal Appeals for being inadequately briefed pursuant to Rule 28(a)(10), Ala.R.App.P.
It is well settled that "[t]he doctrine barring procedurally defaulted claims from being heard is not without exceptions. A prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law." Trevino v. Thaler, 133 S.Ct. 1911, 1917, 185 L.Ed.2d 1044 (2013) (citation omitted). That said, appellate courts "repeatedly have emphasized that circumstances meriting the consideration of procedurally defaulted or barred constitutional claims are `extremely rare' and apply only in the `extraordinary case.'" Rozzelle v. Secretary, Florida Dep't of Corrections, 672 F.3d 1000, 1015 (11
As an alternative to showing cause and prejudice, a prisoner may overcome a procedural default by showing a fundamental miscarriage of justice. "For a state prisoner to establish a fundamental miscarriage of justice, he must prove that he is innocent." Spencer v. United States, 773 F.3d 1132, 1139 (11
Taylor invokes the cause-and-prejudice standard in an effort to overcome his procedural default as to numerous claims presented for the first time in his Second Amended R32 Petition and Revised Second Amended 32 Petition, both of which Alabama courts disallowed on adequate and independent state procedural grounds.
In Claims II.A.i and II.B.i, Taylor alleges that the State induced Kenyatta McMillan to testify falsely at trial by instructing him to fabricate testimony that victim Steve Dyas got on his knees as if to pray, and that in the course of begging for her life victim Sherry Gaston stated that she needed to take care of her two children. (Doc. 25, ¶ 62.)
Again, to establish cause for the procedural default, Taylor must show that an "external impediment, whether it be government interference or the reasonable unavailability of the factual basis for the claim, must have presented petitioner from raising the claim." McCleskey, 499 U.S. at 497 (citations omitted). Assuming without deciding that the State's nondisclosure of the "talking points" and its instructions to McMillan constitutes "government interference" to establish cause,
The record shows that the "coerced" version of McMillan's testimony was that Mr. Dyas had been on his knees as if he were praying at the time he was murdered, and that Ms. Gaston had begged for her life by saying that no one could take care of her two kids like she could. Meanwhile, the "uncoerced" version of McMillan's testimony (as gleaned from McMillan's recorded statement to police on December 16, 1997 and his Rule 32 hearing testimony) would have been that Mr. Dyas had been on his knees begging for Taylor not to shoot and trying desperately to bargain with the assailants to take any car they wanted, and that Ms. Gaston had been "begging and crying and begging" before Taylor shot her. While the former version is embellished, the differences in tenor, severity and emotional resonance between the two narratives are not so marked as to reasonably call into question the outcome of either the guilt phase or the penalty phase of trial.
Because Taylor has not shown prejudice, he cannot overcome the procedural default as to Claims II.A.i and II.B.i; therefore, those claims will not be considered on the merits in these federal habeas proceedings.
In Claim II.A.ii.a, Taylor alleges the State threatened and secured false testimony from Tiffany Carlton.
The undersigned finds that petitioner has shown neither cause nor prejudice to overcome the procedural default. With regard to cause, Taylor blames the State for "conceal[ing] its misconduct" (doc. 43, at 55). However, the record confirms that Taylor's trial counsel was well aware of the pressure that Carlton described years later in the Rule 32 hearing. In a bench conference before Carlton began testifying at trial, the prosecutor referenced the State's concern that "she did receive the gun in this case and she is hiding the gun, participating in hiding the gun or keeping it from us." (Doc. 8, R-16 at 1242-43.) And Taylor's lawyer stated in that same bench conference, "She has talked to the state. She has talked to us. She has been given, I understand, a polygraph test." (Id. at 1243.)
Nor has Taylor made a showing of prejudice as to this claim. The State did not call Carlton in its case-in-chief. There was substantial other evidence linking Taylor to the firearm used in the murders. Moreover, taken in context, Carlton's testimony about seeing Taylor with the gun was not particularly harmful to the defense. After all, Carlton told the jury that McMillan — not Taylor — "mainly had the gun most of the time" in her observations, and that McMillan — not Taylor — "was playing with it, babying it, you know, rubbing it, just, you know, holding the gun." (Vol. 8, R-16 at 1247.) Such statements bind the firearm far more tightly to McMillan than they do to Taylor, which is (presumably) why defense counsel called Carlton to testify and elicited this line of testimony from her in the first place. Indeed, despite what petitioner now characterizes as prosecutorial misconduct, Tiffany Carlton's testimony was overall quite favorable to the defense. If the State pressured her, then those efforts could not have been very effective. Simply put, there is no reasonable probability that Taylor's convictions or sentences would have been different had the State not allegedly applied improper pressure to cause Carlton to falsify her testimony at trial.
Taylor having shown neither cause nor prejudice, he cannot overcome the procedural default as to Claim II.A.ii.a; therefore, that claim will not be considered on the merits in these federal habeas proceedings.
In Claim II.A.ii.b, Taylor claims prosecutorial misconduct in threatening and securing false testimony from Bryann Scott Clark, a "jailhouse snitch" who bore the dubious distinction of testifying twice and in contradictory fashion at Taylor's trial.
The gravamen of Claim II.A.ii.b is that Clark's recantation was the product of undue pressure imposed by the Warden of the Mobile Metro Jail during the intervening days, thereby supporting a claim for prosecutorial misconduct.
Because the defense had actual knowledge of the factual predicate of Claim II.A.ii.b many years before the Revised Second Amended R32 Petition was filed, Taylor cannot show cause to excuse his procedural default, and that claim is barred from federal habeas review.
In Claim IX of his § 2254 Petition, Taylor asserts a due process claim predicated on evidence that McMillan made a coded written confession to Bryann Scott Clark that McMillan was the shooter at Steve Dyas Motors and that Taylor had no advance knowledge that McMillan planned to murder the three victims. (Doc. 25, ¶ 452.)
The undersigned finds that Taylor has shown cause to overcome the procedural default. Specifically, Clark avers that McMillan gave the written confession to him in late 1997 or early 1998, but that for unspecified reasons, Clark "was unwilling to provide this written statement to anyone until" March 2012. (Vol. 44, R-98 at 590, ¶¶ 5-6.) Clark further avers that, in connection with his testimony at Taylor's trial, he "did not give Jarrod or his trial lawyers the written statement that Kenyatta had given me." (Id. at 591, ¶ 11.) And Taylor's counsel say the document was first given to them by Clark in late March 2012. (Vol. 44, R-99 at 598 ¶ 4.) Taylor's counsel assert that they had unsuccessfully engaged in "numerous attempts" to obtain such a document previously. (Vol. 46, R-101 at 868.) Clark's concealment of the purported written confession of McMillan until long after Taylor filed his First Amended R32 Petition constitutes an objective factor external to the defense that impeded counsel's efforts to plead and present the claim to the Alabama courts before the dismissal of his Rule 32 petition, judgment and appeal back in 2005; therefore, it satisfies the "cause" portion of the cause-and-prejudice inquiry for procedural default.
Where Claim IX founders, however, is with respect to the prejudice requirement. Again, to overcome the procedural default, Taylor must show at least a reasonable probability that the result of his guilt phase or penalty phase would have been different had McMillan's purported written confession been unearthed and presented at trial. He cannot do so for several reasons. First, Taylor evidently contemplates introducing McMillan's written statement into evidence through witness Bryann Scott Clark, the jailhouse snitch who testified twice at Taylor's trial in fundamentally inconsistent ways, then recanted his previous recantation when called to testify at the October 1998 hearing on Taylor's motion for new trial. As Judge Johnstone found in August 1998, Clark's credibility was essentially destroyed by this pattern of drastically flip-flopping testimony, particularly given his gang affiliation and his status as a convicted violent felon.
Second, aside from Clark's general credibility gap, there are huge obstacles to the believability of his story concerning the written statement. According to an Affidavit prepared by Taylor's counsel and signed by Clark on March 27, 2012, McMillan told Clark "the story of the crime at Dyas Motors both orally, and in a written statement he gave to [Clark]" while they were housed together in Mobile Metro Jail in late 1997 or early 1998. (Vol. 44, R-98, ¶¶ 1-2, 5.) As discussed at length supra, Clark cooperated with Taylor's lawyers in 1998, informing them of the content of McMillan's oral statements and testifying on Taylor's behalf (and against McMillan) at trial in the defense's case in chief.
Third, even if, notwithstanding these considerable defects in Clark's credibility both generally and with regard to the specific subject of his testimony concerning the written statement, a finder of fact were to believe his story and find that the coded written statement was actually given to Clark by Kenyatta McMillan in Mobile Metro Jail in late 1997 or early 1998, there is no reasonable probability that Taylor's convictions or sentences would have been different. To see why, suppose the McMillan statement is accepted at face value as a truthful, honest jailhouse confession, using the very "translation" of the numerals proposed by Taylor's counsel.
That version of the facts unambiguously portrays Taylor as an accomplice to capital murder. According to that narrative, Taylor had the intent to rob and he knowingly, intentionally participated in the intentional killing by forcibly bringing two of the victims to their executioner, McMillan, even as they screamed and begged for their lives and even when Taylor knew that McMillan intended to kill them (as evidenced by his having already shot Bruce Gaston in the chest). Under such a scenario, Taylor's culpability for the offenses of capital murder would remain unchanged. See, e.g., Kuenzel v. State, 577 So.2d 474, 490-91 (Ala.Crim.App. 1990) ("[T]he accomplice liability doctrine may be used to convict a non-triggerman accomplice if, but only if, the defendant was an accomplice in the intentional killing as opposed to being an accomplice merely in the underlying felony.") (citation omitted). Nor would his non-triggerman role exempt or insulate Taylor from the death penalty. See, e.g., Doster v. State, 72 So.3d 50, 118 (Ala.Crim.App. 2010) ("We have repeatedly held that a nontriggerman may be convicted of capital murder and sentenced to death.").
For each of these reasons, Taylor has not shown a reasonable probability that his convictions or death sentences would have been different had the McMillan written statement been presented to the jury and sentencing judge at trial. Because he has not shown prejudice to overcome the procedural default, Claim IX is not properly before the federal habeas court and will not be considered on the merits in these § 2254 proceedings.
In Claim II.C of his § 2254 Petition, Taylor asserts a claim of prosecutorial misconduct based on the contents of a blue duffel bag admitted at trial as State's Exhibit 58, and the contents of Taylor's wallet admitted as State's Exhibit 71. Taylor posits that the duffel bag contained prejudicial, inadmissible information about his criminal history, including (i) a document showing that Taylor had been charged with misprision of a felony in the U.S. District Court for the Western District of Louisiana in November 1993; (ii) that the same federal court ordered Taylor arrested in March 1994 for a hearing on the Government's motion for revocation of his supervised release on that charge; (iii) that a warrant of arrest was in fact issued for Taylor in March 1994; (iv) that the misprision case was set for trial in September 1994; (v) that the U.S. Probation Office discharged Taylor from supervision on September 30, 1997, for a sentence that had expired one day earlier. (Doc. 23, Exh. E.) According to Taylor, the duffel bag also contained various other prejudicial items, such as documents showing Taylor's overdue loan payments and medical bills, as well as the suspension of his driver's license. (Doc. 25, ¶ 93.) Taylor indicates that the wallet included a document showing a charge against him for unlawful breaking and entering a vehicle. (Id.) Claim II.C was first raised in the disallowed Second Amended R32 Petition, and is therefore procedurally defaulted.
In an attempt to establish cause to overcome the procedural default, Taylor posits that he "did not learn of the State's misconduct in this regard until years after he filed the Corrected First Amended [R32] Petition" and that his "habeas counsel was not permitted access to the exhibits. . . until after the case was remanded to the Circuit Court." (Doc. 43, at 60.) The defect in this argument is that "cause" is not confined to what defendant and his counsel actually knew, but also extends to facts that could reasonably have been discovered. See, e.g., Mize v. Hall, 532 F.3d 1184, 1190 (11
In particular, in his Amended Motion for New Trial filed in October 1998, Taylor moved for relief on the grounds that on August 13 and 14, 1998, a juror had stated "on the air" that "the jury was made aware of the prior criminal record of Jarrod Taylor through evidence and/or personal effects purportedly belonging to the defendant Taylor." (Vol. 1, R-2 at 178.) At a hearing on October 5, 1998, Taylor's counsel explained to Judge Johnstone that a female juror (whose identity was known to them) had appeared on a radio talk show airing on the Thursday and Friday after the August 1998 sentencing hearing, and that the juror "was discussing the fact that they had seen evidence during the guilt phase that Jarrod Taylor had a prior conviction and I don't know what that might have been." (Vol. 10, R-39, at 1647.) In response, Judge Johnstone commented that "for the sake of getting as good a record as we can we ought to try to get the lady here, if she can be brought here." (Id.) Yet defendants did not bring the juror in to testify at the hearing on the motion for new trial.
The point is straightforward. Taylor's counsel have known — or have had good reason to believe — since no later than October 1998 that the jury had seen something they should not have seen relating to Taylor's criminal history. Had Taylor performed reasonable follow-up between then and 2005, he would have learned about the contents of the duffel bag in advance of the final judgment entered by Judge Thomas in the Rule 32 proceedings, and therefore could have pleaded Claim II.C in the state post-conviction proceedings in a timely manner that complied with the state procedural rule. Yet Taylor has made no showing that he ever conducted such inquiries in a reasonably diligent manner. Because the Court finds that the factual basis for Claim II.C was reasonably available to Taylor many years before he actually attempted to raise the claim, such that he readily could have avoided the state procedural bar, he has not shown cause to overcome the procedural default. Accordingly, Claim II.C will not be considered on federal habeas review.
In Claim III.B.ii.a of his § 2254 Petition, Taylor alleges that his trial counsel provided ineffective assistance in failing to challenge the admission of the blue duffel bag (State's Exhibit 58), the wallet (Exhibit 71) and Sherry Gaston's purse (Exhibit 47), which contained such prejudicial items as family photos and her children's Christmas wish lists. Taylor maintains that "[e]ven a mere cursory review of these items would have uncovered flagrantly prejudicial and facially inadmissible information." (Doc. 25, ¶ 182.) This claim was first presented by Taylor in his disallowed Second Amended R32 Petition and is therefore procedurally barred.
Taylor's showing of cause to overcome the procedural default as to this Claim III.B.ii.a fails for precisely the same reason that it failed as to Claim II.C, supra. Once again, Taylor attributes his failure timely to assert this claim in state post-conviction proceedings to "the refusal of the Circuit Court and the Circuit Clerk's office to grant Mr. Taylor's habeas counsel access to the trial exhibits," such that he "was not aware of that certain of the exhibits contained inadmissible and prejudicial materials." (Doc. 43, at 62.) As discussed in the Claim II.C cause-and-prejudice analysis, however, Taylor has been aware for many years that the jurors had reviewed evidence of his criminal history during the deliberations. The sources of that evidence (i.e., Taylor's duffel bag and wallet) could readily have been ascertained about reasonable follow-up inquiry by Taylor's counsel after the trial, during the direct appeal, or during state post-conviction proceedings prior to the 2005 judgment. Because the factual basis of Claim III.B.ii.a (i.e., the prejudicial materials in the duffel bag and wallet) was reasonably available to Taylor beginning no later than August 27-28, 1998, when he was first placed on direct notice that the jurors had reviewed improper materials, he has not shown cause to excuse his failure timely to raise this claim in the state courts antecedent to the 2005 judgment on Rule 32 review.
In light of Taylor's failure to establish cause for his failure to present this claim to the state courts in a timely manner, he cannot overcome the procedural default. For that reason, Claim III.B.ii.a is not properly before this Court and will not be considered on the merits in this federal habeas proceeding.
In Claim III.C of his § 2254 petition, Taylor identifies numerous respects in which he contends trial counsel rendered ineffective assistance in connection with the penalty phase of his trial. The many subclaims encompassed within the boundaries of Claim III.C include Claim III.C.i (failure to investigate potential mitigation evidence), Claim III.C.ii.a (failure to present evidence about Taylor's difficult childhood), Claim III.C.ii.b (failure to present evidence about Taylor's mental health and functional/cognitive impairments), Claim III.C.ii.c (failure to present evidence about Taylor's environmental and social background, such as his neighborhood, mother and father), Claim III.C.ii.d (failure to elicit testimony about Taylor's son, and his relationships with friends and co-workers), and Claim III.C.iii (failure to prepare and obtain helpful testimony from witnesses who testified for the defense during penalty phase). Most aspects of these specific claims were first presented in Taylor's disallowed Second Amended R32 Petition; therefore, to the extent these claims (and the numerous subclaims they contain) are not sufficiently embodied in his First Amended R32 Petition, they are procedurally defaulted.
To show cause for the procedural default as to his failure to present these claims to state courts on post-conviction review prior to the entry of the 2005 judgment, Taylor lays the blame squarely at trial counsel's feet. Taylor explains the reason why he could not present these claims in his original or first amended Rule 32 petitions was "the ineffectiveness of his Trial Counsel," which, Taylor says, created a situation in which "habeas counsel needed to do far more work (and devote far more time) to investigate potential mitigation evidence than would have been necessary had Trial Counsel done even a bare minimum of work." (Doc. 43, at 63-64.) This argument is unpersuasive. To be sure, the Court recognizes that constitutionally ineffective assistance of counsel may be an objective factor that constitutes cause. See, e.g., Ward v. Hall, 592 F.3d 1144, 1157 (11
Inasmuch as Taylor has failed to show cause to excuse the procedural default, the ineffective assistance claims embedded within Claim III.C of his § 2254 Petition cannot be heard herein to the extent the state courts deemed them procedurally barred as having been presented for the first time in his Second Amended R32 Petition.
In light of the foregoing cause-and-prejudice analysis, none of Taylor's claims that were procedurally defaulted by the state courts for noncompliance with Rule 28(a)(10) or for not being raised until the disallowed Second Amended R32 Petition or Revised Second Amended R32 Petition may be heard in these federal habeas proceedings.
In light of the foregoing determinations as to procedural default, many of the claims presented in Taylor's § 2254 Petition cannot and will not be addressed on the merits. That said, various claims (in whole or in part) withstand the procedural bars arising from the Rule 28(a)(10) waiver of certain of Taylor's claims, as determined by the Alabama Court of Criminal Appeals, and the disallowance of Taylor's Second Amended R32 Petition and Revised Second Amended R32 Petition by the Alabama courts. Of the remainder, certain claims were plainly exhausted and addressed on the merits, in whole or in part, by Alabama courts either on direct appeal or in Rule 32 proceedings. Other claims were not raised until the disallowed Second Amended R32 Petition, or were never raised to the state courts at all, but Taylor maintains they merely provide additional factual support for previously asserted claims, or that they otherwise comport with baseline exhaustion requirements, such that they should be considered on the merits now. Those claims and issues will be addressed one by one.
The remaining claims (or portions of claims) requiring individualized analysis of merits and/or exhaustion issues consist of the following: (i) Claim I (Batson claim alleging racially biased use of peremptory strikes by the State); (ii) Claims II.A.i, II.A.ii.a, II.B.i, II.B.ii, II.B.iii and II.C (prosecutorial misconduct); (iii) Claim II.A.ii.b (prosecutorial misconduct in securing false testimony from Clark); (iv) Claim II.D (cumulative error as to prosecutorial misconduct); (v) Claim III.B.i (ineffective assistance of counsel in failing to present evidence that Taylor was not present at the time of the murders); (vi) Claim III.B.iii.a (ineffective assistance of counsel in impeaching McMillan about events at Steve Dyas Motors); (vii) Claim III.B.iii.b (ineffective assistance of counsel in impeaching McMillan via other witnesses' accounts); (viii) Claim III.B.iii.c (ineffective assistance of counsel in impeaching McMillan using physical evidence at the scene); (ix) Claim III.B.iv.a (ineffective assistance of counsel in failing to present evidence concerning McMillan's access to murder weapon); (x) Claim III.B.iv.b (ineffective assistance of counsel in failing to present evidence concerning pressure on the Carlton sisters); (xi) Claim III.B.v (ineffective assistance of counsel in failing to elicit testimony from Clark and Lewis regarding McMillan confessions); (xii) Claim III.C (ineffective assistance of counsel during penalty phase); (xiii) Claim III.D (ineffective assistance of counsel as to motion for new trial); (xiv) Claim III.F (cumulative ineffective assistance of counsel); (xv) Claim V.A (improper jury instructions during guilt phase); (xvi) Claim V.B (improper jury instructions during penalty phase); (xvii) Claim VI (sufficiency of the evidence); (xviii) Claim VII (consideration of improper evidence at sentencing); (xix) Claim X (alleged improprieties in Rule 32 proceedings); (xx) Claim XI.A.i (death penalty is cruel and unusual punishment); (xxi) Claim XI.A.iii (death penalty does not further penological goals); (xxii) Claim XI.B.i (constitutionality of Alabama's judicial override provision); (xxiii) Claim XI.B.ii (Ring/Apprendi/Hurst v. Florida); (xxiv) Claim XI.C.ii. (override in this case violated Ring/Apprendi/Hurst); and (xxv) Claim XI.D (constitutionality of Alabama's method of execution). Each claim or subclaim will be analyzed in turn.
Taylor claims that the State exercised its peremptory challenges in a racially discriminatory manner, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In so arguing, Taylor maintains that "[t]he State's exercise of seven of its first eight peremptory challenges to remove black venire members . . . itself established a prima facie Batson violation." (Doc. 25, ¶ 45.) Taylor further argues that the prima facie case for a Batson violation is bolstered by the State having "struck those black venire members in sequential ascending order by their assigned jury number," and because "the Mobile County District Attorney's Office had a history of exercising unconstitutional peremptory challenges." (Id., ¶¶ 50-51.)
The trial record reflects that each side was afforded 12 peremptory strikes during jury selection. (Vol. 4, R-9 at 518.) By Judge Johnstone's count (corroborated by counsel for both sides), approximately 19 of the 60 original venirepersons (or 31.7%) were African-American. (Id. at 522-23.) After the parties utilized all of their peremptory challenges (with the State using 7 of its allotted 12 on African-American jurors, and the defense using all 12 of its challenges to strike white jurors), the jury of 12 that was ultimately seated for trial included five African-Americans (or 41.7%). (Id. at 524-26.) Defense counsel then asserted a Batson objection on the grounds that the State used seven of its first eight peremptory challenges to strike African-Americans from the venire. (Id. at 524-25.) In articulating this Batson objection, Taylor's attorneys repeatedly acknowledged that "according to the numbers it doesn't meet the predicate proof which would require the state to show race neutral reasons." (Id. at 523-24.) Indeed, defense counsel conceded to the trial judge that their Batson argument lacked even a prima facie predicate showing that might obligate the State to articulate race-neutral reasons, to-wit:
(Id. at 526.) The trial judge then ruled, "I don't see a trace of racism in this case and, therefore, I am overruling the Batson challenge." (Id. at 527.)
In deciding the Batson issue in this manner, the trial court concluded that Taylor had not made a prima facie showing of race-based use of peremptory challenges, as required to shift the burden to the State to present race-neutral explanations for its strikes.
Under the deferential § 2254(d) standard of review, the Court finds that Taylor is not entitled to habeas relief on his Batson claim of racially discriminatory strikes. In evaluating whether a prima facie case has been made, the Eleventh Circuit has cautioned that "courts must consider all relevant circumstances," that "no particular number of strikes against blacks automatically indicates the existence of a prima facie case," and that statistical evidence must be placed in context (including "the racial composition of the venire" and "the race of others struck"). United States v. Ochoa-Vasquez, 428 F.3d 1015, 1044 (11
Here, the undisputed evidence is that five African-Americans served on the jury unchallenged by the State, that the State used only seven of its 12 peremptory strikes on African-Americans, and that the ratio of African-Americans seated on the final jury (41.7%) was higher than the ratio of African-American veniremembers in the initial pool of 60 (31.7%). In light of these circumstances, as well as defense counsel's contemporaneous acknowledgment that no prima facie case of racially discriminatory strikes had been made, the Court does not find that the Alabama courts' denial of Taylor's Batson claim based on race discrimination was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. No habeas relief is warranted on this claim.
As his second category of grounds for habeas relief, Taylor brings a spate of claims of prosecutorial misconduct. Among the subclaims under this heading are the following: (i) Claim II.A.i, which is a claim that "[t]he State pressured Mr. McMillan to distort his testimony" by "threatening Mr. McMillan with the death penalty if he did not cooperate by perjuring himself" (doc. 25, ¶ 61); (ii) Claim II.A.ii.a, which is a claim that the State "harassed and intimidated" Tiffany Carlton into testifying that she saw Taylor with a gun on the day of the murders (id., ¶¶ 70-71); (iii) Claim II.B.i, which is a claim that the State suppressed critical impeachment evidence of McMillan's credibility by neither producing the "talking points" to the defense nor apprising the defense that such talking points had been given to McMillan (id., ¶ 81); (iv) Claim II.B.ii, which is a claim that "[t]he State never disclosed to Mr. Taylor the pressure it exerted upon Mr. Clark to recant his truthful testimony" (id., ¶ 86); (v) Claim II.B.iii, which is a claim that "[t]he State never disclosed to Mr. Taylor the fact or results of the lie detector test it administered to Tiffany Carlton, nor its numerous visits to the Carlton sisters and attempts to pressure them to testify falsely" (id., ¶ 89); and (vi) Claim II.C, which is a claim of prosecutorial misconduct relating to the State's introduction into evidence of the duffel bag and wallet containing documents evidencing Taylor's prior bad acts (id., ¶¶ 92-102).
This Court has already held, supra, that insofar as these claims were presented to the state courts only through Taylor's Second Amended R32 Petition or Revised Second Amended R32 Petition, they are procedurally barred from consideration in these § 2254 proceedings. In his Reply, however, Taylor insists that "[t]he allegations in the Federal Petition detailed in Claims II.A.i, II.A.ii.a., II.B.i, II.B.ii, II.B.iii, and II.C fall squarely within" the scope his Corrected First Amended R32 Petition. (Doc. 43, at 26.)
According to Taylor, these claims of prosecutorial misconduct are found "within the claim alleged in the Corrected First Amended Petition that the State failed to comply with its Brady and Giglio obligations." (Doc. 43, at 26.) In that petition, which was filed in state post-conviction proceedings in May 2003 (nearly five years after Taylor's trial, conviction and sentence), Taylor asserted a claim captioned, "The State Apparently Failed To Comply With Its Discovery Obligations Under Brady v. Maryland" (vol. 22, R-56 at 952). In that claim, Taylor generically pleaded Brady/Giglio principles, then recited potential, unspecified violations based on unidentified information the State "may have withheld," including the following:
(Vol. 22, R-56, at 952 ¶ 239.) No further details or clarifications were set out. Thus, in this
Corrected First Amended R32 Petition, Taylor offered only vague, shadowy allegations about potential or apparent or possible or hypothetical Brady or Giglio issues concerning Clark, McMillan and Carlton. He failed to identify what those issues were, or even affirmatively to plead the existence of undisclosed exculpatory information. Instead, in what was nothing more than an obvious placeholder, Taylor simply pleaded that "the State may have withheld" something at some time related in some ambiguous and unstated way to those witnesses' testimony. And he said nothing about the duffel bag and wallet.
As pleaded in his Corrected First Amended R32 Petition, Taylor was essentially asking the state courts to read his mind, rule on the basis of mere innuendo and speculation, and foretell the future for what he might someday allege the State had done wrong. Such a "maybe-the-State-didn't-tell-us-something" claim in Taylor's Rule 32 petition falls well short of satisfying fundamental principles of fair presentment and exhaustion. As noted, "[f]or a federal claim to be exhausted, the petitioner must have fairly presented it to the state courts." Lucas v. Secretary Dep't of Corrections, 682 F.3d 1342, 1351 (11
Claims II.A.i, II.A.ii.a, II.B.i., II.B.ii, II.B.iii and II.C. were not fairly presented to the Alabama courts in the Corrected First Amended R32 Petition because no factual predicate was provided. Taylor submitted no facts to the state courts that, if proven, might entitle him to relief. Indeed, he did not give them any factual foundation for these Brady / Giglio claims at all, but merely suggested in the vaguest of terms that the State "may have" violated disclosure requirements. The net result, of course, is that these hollow, conclusory claims as submitted in the Corrected First Amended R32 Petition did not give the Alabama courts a fair opportunity to pass on them and correct any Brady / Giglio violations that may have occurred. Taylor did not fairly present the substance of these claims to the state courts on Rule 32 review in any allowed petition; therefore, those claims are not exhausted because they do not satisfy threshold "fair presentment" requirements to being adjudicated in federal habeas proceedings.
In Claim II.A.ii.b, Taylor alleges that the State engaged in prosecutorial misconduct by "threaten[ing] Mr. Clark in order to obtain a perjured recantation of his truthful trial testimony." (Doc. 25, ¶ 76.) The Court has already found, supra, that this claim is procedurally barred insofar as Taylor raised it for the first time in his disallowed Revised Second Amended R32 Petition.
In his Reply, Taylor maintains that he fairly presented this claim to Alabama state courts prior to the Revised Second Amended R32 Petition. Specifically, he says he "raised the claim on direct appeal" (doc. 43, at 49), such that it is not procedurally barred. The record does not support Taylor's contention of fair presentment. On direct appeal, Taylor delineated the following assignment of error: "The trial court reversibly erred to allow the State to reopen its case and present perjured testimony, and further erred." (Vol. 12, R-42 at 49.) Taylor's brief on direct appeal went on to argue that Judge Johnstone abused his discretion under Alabama law in reopening the case to allow the State to call Clark back to the stand to testify a second time at trial. (Id. at 55-57.) In the same brief, Taylor also argued that Judge Johnstone had erred under Alabama law in denying Taylor's motion for new trial based on perjured testimony by Clark. (Id. at 58-61.) Taylor now maintains that, based on these arguments on direct appeal, the state courts had a "full opportunity" to resolve his Giglio claim for prosecutorial misconduct based on the State's knowing use of perjured testimony by Clark, as set forth as Claim II.A.ii.b in his § 2254 petition.
The Court finds that Taylor is not entitled to relief on Claim II.A.ii.b for at least three independent reasons. First, the claim is procedurally barred because petitioner did not raise it on direct appeal, but presented it for the first time in his disallowed Revised Second Amended R32 Petition. Taylor's contention that he fairly presented this claim on direct appeal is counterfactual. A fair reading of his brief on direct appeal would not have placed the Alabama Court of Criminal Appeals on notice that Taylor was pursuing a Giglio claim of misconduct by the State in knowingly presenting perjured testimony;
Second, even if Claim II.A.ii.b had been properly exhausted on direct appeal (which it was not), this claim would fail on the merits because it suffers from a faulty factual premise. Again, Claim II.A.ii.b is that "The State Threatened and Secured False Testimony From Bryann Scott Clark." (Doc. 25, at 27.) Upon hearing testimony from both Clark himself and Warden Gaston (the State agent who purportedly threatened Clark and Clark's family unless he recanted), Judge Johnstone made specific credibility determinations and findings of fact on the record, including the following: (i) Clark's testimony suffered from "a real credibility problem," lacked corroboration, "was sometimes conflicting in fairly serious ways," was undermined by his "status as a convicted attempted murderer and his gang affiliation," and "seems awfully weak;" (ii) the trial judge was "inclined to believe Warden Gaston's testimony," inasmuch as "Warden Gaston . . ., as between the two witnesses, appears to be by far the more credible;" and (iii) "the conflict in testimony should be resolved in favor of the position taken by Warden Gaston that he did not precipitate the recantation." (Vol. 10, R-40 at 1710-13.) Those credibility determinations and findings of fact are presumed correct on federal habeas review, unless rebutted by the petitioner via clear and convincing evidence, which Taylor has not submitted. See Daniel v. Commissioner, Alabama Dep't of Corrections, 822 F.3d 1248, 1259 (11
Third, separate and independent from the foregoing, the elements of a Giglio violation simply are not shown on this record. "To establish a Giglio claim, a habeas petitioner must prove: (1) the prosecutor knowingly used perjured testimony or failed to correct what he subsequently learned was false testimony; and (2) such use was material, i.e., that there is any reasonable likelihood that the false testimony could . . . have affected the judgment." Guzman v. Secretary, Dep't of Corrections, 663 F.3d 1336, 1348 (11
In Claim II.D of his § 2254 Petition, Taylor argues that "the cumulative effect of the State's misconduct certainly rises to the level of depriving Mr. Taylor of a fair trial." (Doc. 25, ¶ 103.) The fundamental problem with this claim is that the Court has already concluded that every single claim in Claim II.A, II.B and II.C is procedurally barred. Taylor may not circumvent the procedural bar by repackaging these improper claims under the heading of "cumulative error." If the underlying claims are procedurally barred (which they are), then the cumulative error claim based on those underlying claims likewise fails as a matter of law. See, e.g., Hughes v. Dretke, 412 F.3d 582, 597 (5
At any rate, even if Taylor had asserted claims of prosecutorial misconduct that were exhausted and not procedurally defaulted, none of those claims have any merit; therefore, his cumulative error claim fails, as a matter of law. See, e.g., Morris v. Secretary, Dep't of Corrections, 677 F.3d 1117, 1132 (11
Petitioner is not entitled to habeas relief on Claim II.D.
Moving into the realm of ineffective assistance of trial counsel, Taylor's § 2254 Petition alleges that "Trial Counsel Failed to Investigate and Present Evidence That Mr. Taylor Was Not Present at Steve Dyas Motors During the Murders and That Mr. McMillan Had the Opportunity to Commit the Murders Without Mr. Taylor." (Doc. 25, at 63.) This claim, in turn, may be disaggregated into four distinct subclaims, to-wit: (i) Claim III.B.i.a (failure to elicit testimony from Blake and Stevee Martin that the Ford Mustang which Taylor stole from the dealership was not present at Steve Dyas Motors at 6:50 p.m., the time of the gunshots); (ii) Claim III.B.i.b (failure to present evidence from Steve "Blue" Blackmon and a man named "Black" placing Taylor miles away from Steve Dyas Motors minutes after gunshots were heard and separating Taylor from McMillan for a key 30-45 minute window); (iii) Claim III.B.i.c (failure to present evidence from Lugene and Barbara Wallace, Taylor's father and stepmother, that Taylor visited them alone that evening driving a new car, leaving McMillan alone at Steve Dyas Motors to commit the murders); and (iv) Claim III.B.i.d (failure to utilize the above evidence to present a theory that Taylor was not present at Steve Dyas Motors and that McMillan had the opportunity to commit the murders and dispose of the murder weapon in Taylor's absence). Claims III.B.i.a and III.B.i.c were raised for the first time in Taylor's Second Amended R32 Petition (Vol. 34, R-93, ¶¶ 141, 153, 154). Taylor has not contended that he raised them earlier; therefore, those claims are procedurally defaulted pursuant to the analysis set forth in Section III.A., supra, of this Order.
With respect to Claim III.B.i.b, Taylor maintains that "[t]his claim, in fact, was raised in. . . the Corrected First Amended [R32] Petition." (Doc. 43, at 35.) A fair reading of that Petition does not support petitioner's argument. At best, Taylor's Corrected First Amended R32 Petition cited trial testimony in which a State's witness named Doneshia Matthews testified that Taylor arrived at her home alone in the Mustang between 6:00 and 6:10 p.m. and that "[a] guy we call Blue" was outside looking at the vehicle. (Vol. 6, R-15 at 845, 856.) In his Corrected First Amended R32 Petition, Taylor argued only that "trial counsel made no effort to locate and interview `Blue' to verify Matthews's version of the events." (Vol. 22, R-56 at ¶ 143.) That scant one-sentence statement falls well short of comporting with principles of fair presentment and exhaustion as to Claim III.B.i.b from Taylor's § 2254 Petition.
In Claim III.B.i.d, Taylor essentially presents a summation of Claims III.B.i.a, III.B.i.b and III.B.i.c, arguing that trial counsel's failure to present all this evidence (the Blake and Stevee Martin statements from Claim III.B.i.a, the "Blue" and "Black" evidence from Claim III.B.i.b and the Lugene and Barbara Wallace statements from Claim III.B.i.c) was constitutionally ineffective. However, because all three of those subclaims are procedurally barred (not presented until the disallowed Second Amended R32 Petition), Claim III.B.i.d is likewise procedurally barred as a repackaging/restatement of other procedurally barred claims.
As Claim III.B.iii.a in his Amended § 2254 Petition, Taylor asserts that trial counsel were constitutionally ineffective because they "failed to adequately impeach Mr. McMillan's obvious embellishment of the events . . ., such as his testimony that . . . Mrs. Gaston begged for her life, crying that nobody would care for her children as she would . . . and that Mr. Dyas got down on his knees as though he . . . was praying." (Doc. 25, ¶ 214.) Taylor posits that his counsel's impeachment efforts were deficient because they failed to point out the discrepancies between this testimony and McMillan's prior statements to police, and because they "failed to seek an adjournment to pursue discovery of prosecutorial materials related to Mr. McMillan's various statements" that might have assisted their cross-examination of McMillan. (Id., ¶¶ 214, 218, 220-21.) This claim is exhausted, insofar as Taylor fairly presented it to state courts in Rule 32 proceedings.
To the extent that it has been properly exhausted, Claim III.B.iii.a, like all of Taylor's ineffective assistance of counsel claims reviewed on the merits, will be evaluated through the familiar standard promulgated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish an ineffective assistance claim under the Sixth Amendment, "[a] petitioner must show that counsel's performance was deficient, and that the deficiency prejudiced the defense." Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). "Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Haliburton v. Secretary for Dep't of Corrections, 342 F.3d 1233, 1243 (11
To satisfy Strickland's "deficient performance" prong, "a petitioner must show that counsel's representation fell below an objective standard of reasonableness." Williams v. Allen, 598 F.3d 778, 788 (11
As for Strickland's "prejudice" prong, "the petitioner is required to prove that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Williams, 598 F.3d at 789 (citation and internal quotation marks omitted). "This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Halliburton, 342 F.3d at 1343. "The likelihood of a different result must be substantial, not just conceivable." Harrington, 562 U.S. at 112.
"Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010); see also Harrington, 562 U.S. at 105 (cautioning that "the Strickland standard must be applied with scrupulous care, lest `intrusive post-trial inquiry' threaten the very adversary process the right to counsel is meant to serve"). However, it is even more daunting in the habeas context where state courts have adjudicated the ineffective assistance claims on the merits in post-conviction proceedings, thereby triggering the § 2254(d) limitations. "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington, 562 U.S. at 105. As to those ineffective-assistance claims to which § 2254(d) applies, then, Taylor "not only has to satisfy the elements of the Strickland standard, but he must also show that the State court applied Strickland to the facts of his case in an objectively unreasonable manner." Williams, 598 F.3d at 789 (citations and internal quotation marks omitted). "The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so." Harrington, 562 U.S. at 105 (citation and internal quotation marks omitted); see also Bell v. Cone, 535 U.S. 685, 698-99, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) ("For respondent to succeed, however, he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly.").
These burdens rest squarely on Taylor's shoulders. After all, "[t]o give trial counsel proper deference, this circuit presumes that trial counsel provided effective assistance. . . . And it is the petitioner's burden to persuade us otherwise." Harvey v. Warden, Union Correctional Institution, 629 F.3d 1228, 1245 (11
In deciding Taylor's claims of ineffective assistance predicated on trial counsel's failure to cross-examine McMillan about inconsistencies in his police statements or to seek adjournment for discovery of information relating to McMillan's police interviews, the Court of Criminal Appeals wrote as follows: "Taylor failed to prove that his counsel rendered deficient performance when they failed to request an adjournment, and he failed to establish that the request would have been granted; he failed to prove that an adjournment would have yielded any additional information or that the additional information would have changed the outcome of the trial; and, finally, Taylor failed to prove deficient performance or prejudice with regard to defense counsel's cross-examination of McMillan. Taylor is not entitled to relief on this issue." (Doc. 53, R-134, at 19-20.)
There was no deficient performance under Strickland regarding the adjournment issue. At the time the State called McMillan to testify, the prosecutor explained to Judge Johnstone that McMillan had given three prior statements to law enforcement, all of which had been furnished to the defense. (Vol. 6, R-15 at 881.) The prosecutor further indicated that McMillan's trial testimony was expected to be in line with his third statement. (Id. at 882.) In response, defense counsel asked to be furnished with "a final statement or statement number four," if one existed, or "written memoranda of what he said in that statement." (Id. at 883-84.) Defense counsel also pushed for disclosure of "a final version that somehow reconciles the prior inconsistencies" in McMillan's statements. (Id. at 890.) Shortly thereafter, defense counsel expressly "request[ed] that if his testimony or any memoranda of interviews have been used in the subsequent robbery indictments against him, that that be furnished to us." (Id. at 892.) The State acknowledged that those "robbery files are in the office." (Id. at 893.) Judge Johnstone took a lunch recess, giving the State clear instructions, to-wit: "What I want you to look for is any piece of paper reflecting anything that this man, McMillan, has ever said." (Id. at 894.)
Taylor is correct that his lawyers never requested an adjournment of the trial to allow for the State to conduct additional searches of their offices for materials related to any statements ever made by McMillan in connection with subsequent robbery indictments against him. But the State never indicated that it needed additional time to complete its search. Moreover, Judge Johnstone strongly suggested that he had no intention of delaying the trial while the State hunted for responsive materials.
The Court reaches a similar conclusion as to Taylor's assertion that the Rule 32 courts erred in finding neither deficient performance nor prejudice in defense counsel's questioning of McMillan on the witness stand at trial. During extensive cross-examination, Taylor's counsel elicited detailed testimony from McMillan about his prior statements to law enforcement, including numerous specific discrepancies, pursuant to which McMillan repeatedly admitted he had been untruthful in those prior statements. (Id. at 992-99; vol. 7, R-15 at 1001-06, 1022-23, 1049-50.) Notably, there was cross-examination specifically about what McMillan had witnessed as to the murders of Steve Dyas and Sherry Gaston, which yielded significant admissions from McMillan about inconsistencies or discrepancies in his testimony.
As Claim III.B.iii.b, Taylor alleges that his trial counsel rendered ineffective assistance by failing to "highlight[] . . . the significant discrepancies between Mr. McMillan's account . . . and the accounts of other witnesses" in certain enumerated respects. (Doc. 25, ¶ 222.) In particular, Taylor criticizes his lawyers for failing to elicit testimony from Blake and Stevee Martin that the Mustang was not at the dealership at 6:50 p.m., for failing to elicit testimony from Leon Saafir that McMillan had access to Saafir's gun, for failing to cross-examine McMillan about his relationship with the Carlton sisters, and for failing to ask McMillan whether he had spoken with the State about his testimony during a lunch break. (Id. at ¶¶ 222-25.) The portion of this claim concerning the Martin statements is redundant of Claim III.B.i.a, and will not be addressed separately here. The portion of this claim concerning Saafir is redundant of Claim III.B.iv.a, and will not be addressed separately here.
As for the Carlton sisters, on direct examination, McMillan testified at trial that he did know Tiffany and Cherelle Carlton, that he and Taylor went to their house and talked to them for about 20 minutes on the morning of the murders, that Cherelle Carlton wanted to talk to Taylor because "she was saying he is a handsome dude" and "trying to find out who he was," that he did not know Tiffany Carlton's last name "for sure," that Taylor gave the murder weapon to Tiffany shortly after the murders occurred, and that McMillan instructed her to keep it and not mess with it. (Vol. 6, R-15 at 955, 956-57, 970.) In his § 2254 Petition, Taylor faults trial counsel for not taking McMillan to task for "tr[ying] to disassociate himself from the Carlton sisters" and for "suggesting that Mr. Taylor was closer to them than he was." (Doc. 25, ¶ 224.) This criticism is unfounded. McMillan readily acknowledged in his direct examination that Cherelle Carlton did not know Taylor's identity on the morning of the murders, but that she was trying to find out who he was because she deemed him a "handsome dude." And McMillan's familiarity with Tiffany Carlton was evident from his testimony that he called her over to the car and told her not to mess with the gun that Taylor gave her. Simply put, there was nothing to impeach in McMillan's direct-examination testimony concerning his and Taylor's relationship with the Carlton sisters. It was certainly not constitutionally ineffective assistance for defense counsel not to devote a portion of cross-examination to suggesting that McMillan had somehow distorted or inappropriately downplayed his relationship with the Carlton sisters on direct examination, when he had done nothing of the sort. The Rule 32 courts did not err on this point.
Finally, on the morning of the second day of his direct examination at trial, McMillan revisited some of his testimony from the previous day.
In Claim III.B.iii.c, Taylor presents an argument that trial counsel rendered ineffective assistance by not using physical evidence to impeach McMillan's testimony about the position of Steve Dyas's body at the time he was murdered. Taylor says his lawyers should have directed the jury to evidence that the bullet traveled upward through Dyas's head, that blood was on the floor and not on the wall, and that the bullet was lodged in the floor, all of which Taylor says discredit McMillan's account that Dyas was kneeling at the time he was shot. (Doc. 25, ¶ 226.)
Although Taylor raised this claim in his state post-conviction proceedings, he failed to offer any evidence in support of it at the Rule 32 hearing. On that basis, the Alabama courts deemed the claim abandoned. (Vol. 53, R-131 at 10 ("Taylor presented no expert testimony at the evidentiary hearing and abandoned this claim."); vol. 53, R-134 at 17 (observing that in his appellate brief in Rule 32 proceedings, Taylor "has not made any specific argument about the trial court's resolution of" that claim, such that the Court of Criminal Appeals "agree[s] with the circuit court that Taylor abandoned" that claim).) Such a determination is well-supported by Alabama law. See, e.g., Brooks v. State, 929 So.2d 491, 497 (Ala.Crim.App. 2005) ("We have held that a petitioner is deemed to have abandoned a claim if he fails to present any evidence to support the claim at the evidentiary hearing.").
Even if this claim were properly considered on the merits, there is no constitutional deprivation here. During the trial, the State called a forensic pathologist, Julia Goodin, M.D., who performed autopsies on the three victims of the Steve Dyas Motors murders. On cross-examination, defense counsel sought to elicit testimony from Dr. Goodin about bullet trajectories and the position of Steve Dyas's body at the time he was shot. (Vol. 7, R-15 at 1176-78.) Judge Johnstone sustained the State's objection to such questioning because Dr. Goodin lacked training or expertise in that area, and testified, "I cannot determine the position the body was in at the time the shot was fired." (Id. at 1178, 1181-84.) Nonetheless, Taylor now says his trial counsel were constitutionally ineffective because they failed to cobble together certain ambiguous facts (i.e., that the bullet traveled slightly upward through Dyas's head, that the bullet was found lodged in the floor, that there was a pool of blood underneath him) to argue to the jury that McMillan must have testified falsely when he said Dyas was kneeling when Taylor pulled the trigger. (Doc. 25, ¶ 226.) Perhaps those ambiguous facts are consistent with a defense theory that Dyas was lying down on the floor when Taylor murdered him. Perhaps they are equally consistent with McMillan's narrative that Dyas was kneeling as if in prayer (i.e., with his head bowed down) when Taylor put the .380 pistol to the back of his head and pulled the trigger.
In Claim III.B.iv.a of his § 2254 Petition, Taylor asserts that trial counsel rendered ineffective assistance by failing "to investigate and elicit testimony that Mr. McMillan had access to Leon Saafir's gun . . . prior to the murders." (Doc. 25, ¶ 229.) At trial, McMillan testified that on the day of the murders he and Taylor went to Saafir's apartment, that they used a key and went inside, that McMillan did not "know where exactly the pistol was," and that Taylor "went down the hall and came back with the pistol and we left on from there." (Vol. 6, R-15 at 947.) Taylor posits that if defense counsel had ever asked, Saafir would have impeached McMillan's testimony denying knowledge of "where exactly" Saafir kept the pistol.
As an initial matter, Claim III.B.iv.a faces a significant exhaustion problem. In his Corrected First Amended R32 Petition, Taylor framed his ineffective assistance claim relating to Saafir as follows: "McMillan tried to down play his association with Leon Saafir, . . . when in fact McMillan had known Saafir for four years and had stayed with Saafir in his home for a period of time — facts within which McMillan could have been confronted." (Vol. 22, R-56 at ¶ 133.) Nowhere in that petition did Taylor present argument or suggestion that trial counsel were deficient for not asking Saafir if McMillan knew where he kept the .380 pistol. That issue, of course, is the gravamen of Claim III.B.iv.a. Taylor did not fairly present this issue to the state courts in his Corrected First Amended R32 Petition; indeed, he offered no specific factual foundation or exposition in Rule 32 proceedings that he faulted his lawyers for not asking Saafir about McMillan's access to the gun. Therefore, Claim III.B.iv.a is unexhausted and is not properly considered on the merits in these federal habeas proceedings.
Even if Claim III.B.iv.a were to be considered on the merits, § 2254 relief would remain unavailable to Taylor. Saafir's testimony at the Rule 32 hearing showed only that McMillan know generally that Saafir kept the .380 pistol in his bedroom. Saafir did not testify that McMillan had ever seen the gun in that location, or that McMillan had any knowledge of where in the bedroom Saafir kept that weapon. Thus, Saafir's testimony on this point would not have effectively impeached McMillan's testimony at trial that he did not know "where exactly the pistol was" in Saafir's home or that Taylor went down the hall and retrieved the weapon on the day of the murders. It was not constitutionally deficient performance for defense counsel to fail to ask Saafir about McMillan's knowledge of the location of the gun, and Taylor was not prejudiced by the omission of this extremely weak purported "impeachment" testimony.
In Claim III.B.iv.b, Taylor presents six pages of allegations and argument under the heading that his trial counsel were constitutionally ineffective because they "failed to investigate and elicit testimony regarding pressure placed upon Cherelle and Tiffany Carlton to testify they saw Mr. Taylor with a gun on the day of the murders." (Doc. 25, at 101.) At trial, each of the Carlton sisters testified that she saw Taylor in possession of a gun on the day of the Steve Dyas Motors murders.
A significant portion of Claim III.B.iv.b is procedurally defaulted. In his Corrected First Amended R32 Petition, Taylor asserted ineffective assistance claims based on allegations that "[t]rial counsel failed to confront . . . the Carlton sisters regarding their whereabouts between 1:00 and 2:00 p.m." (vol. 22, R-56 at ¶ 148) and "unreasonably failed to cross-examine Cherelle and Tiffany Carlton regarding any pressure upon them to testify for the State" (id. at ¶ 151) as part of R32 Claim IV.B.4.f; and that "trial counsel failed to cast into sharp relief the contradictions between the testimony, on the one hand, of McMillan and Matthews, and, on the other hand, of the Carlton sisters, which call into question the Carlton sisters' claim that they saw Mr. Taylor with a gun on the day of the murders" (id. at ¶ 154), as part of R32 Claim IV.B.4.g. The Alabama Court of Criminal Appeals found that R32 Claim IV.B.4.f and R32 Claim IV.B.4.g had been waived for purposes of appellate review by application of Rule 28(a)(10). (Vol. 53, R-128 at *10-11.)
The portion of Claim III.B.iv.b that is not procedurally defaulted is that which corresponds to R32 Claim IV.B.4.e, in which Taylor had alleged that "trial counsel failed to investigate several discrepancies" that might have contradicted the Carltons' testimony as timing, such as that "McMillan and Mr. Taylor could not have been both with Matthews and with the Carlton sisters miles apart at the same time;" and further alleged that trial counsel never investigated "allegations that the Carltons testified under pressure by threats from State officials." (Vol. 22, R-56 ¶ 142.) The Alabama courts addressed these arguments on the merits in Rule 32 proceedings.
As to counsel's failure to investigate alleged "pressure" or "threats" by the State, the Alabama Court of Criminal Appeals concluded that "Taylor did not sustain his burden of proof on this claim" for either deficient performance or prejudice. (Vol. 53, R-134 at 7.) Finding no deficient performance under Strickland, the Alabama appellate court reasoned as follows:
(Id.)
As to counsel's failure to investigate the discrepancies between the Carltons' testimony and those of other witnesses as to Taylor's whereabouts between 1:00 and 2:00 p.m. on the day of the murders, Alabama courts likewise rejected this ineffective assistance claim in state post-conviction proceedings. In finding neither deficient performance nor prejudice under Strickland, the Alabama Court of Criminal Appeals wrote the following:
(Vol. 53, R-134 at 9-10.)
In his § 2254 Petition, Taylor argues that "proper investigation" about these timelines "could have uncovered evidence . . . that would have contradicted the Carlton sisters' incriminating testimony" and also "could have . . . investigated and possibly disproved" Tiffany Carlton's testimony that Taylor and McMillan drove her to her boyfriend's house between 1:00 and 2:00 p.m. (Doc. 25, ¶ 242.) Taylor does not identify what that evidence was or how it might have been uncovered, but simply speculates about what might have been "possibly disproved." Besides, Taylor acknowledges (as he must) that the jury heard conflicting evidence about where Taylor was at 1:00 p.m., with a Steve Dyas Motors employee testifying that Taylor was present at the dealership at around 1:00 - 1:15 p.m. (Id.) The jury resolved those discrepancies adversely to Taylor. The Court agrees with the Alabama Court of Criminal Appeals that Taylor has not shown that further investigation into conflicting evidence about timelines was necessary as a constitutional minimum for effective defense representation, much less that such investigation was reasonably likely to yield a different result.
In Claim III.B.v of his § 2254 Petition, Taylor asserts another claim for ineffective assistance of counsel, this time arguing that "[t]rial counsel failed to competently investigate evidence that Mr. McMillan confessed to shooting the three victims." (Doc. 25, ¶ 246.) As pleaded, this claim has two subparts. First, Taylor points to the testimony of Bryann Scott Clark, a jailhouse witness who first testified for the defense that McMillan had confessed to shooting the Steve Dyas Motors victims himself, then returned to the stand two days later as a rebuttal witness for the State to recant his previous testimony. Taylor maintains that "[t]rial counsel unreasonably failed to investigate and elicit testimony regarding the basis for . . . Clark's recantation during the trial." (Id., ¶ 247.) Second, Taylor says that trial counsel were ineffective because they "failed to investigate Mr. McMillan's statements regarding the crimes to Robert `Detroit' Lewis, who was Mr. McMillan's cellmate in 1998, prior to Mr. Taylor's trial." (Id., ¶ 251.) McMillan's statements to Lewis ostensibly included that McMillan "was keeping the gun hidden because it had his fingerprints on it, and would therefore reveal that he had committed the murders," and that McMillan "saw Mr. Taylor count the money at Steve Dyas Motors and pay for the car." (Id.) The procedural and legal posture of these subclaims differs; therefore, each will be addressed separately.
With respect to Lewis, the State asserts (with no response from petitioner) that Taylor first raised a claim concerning Robert "Detroit" Lewis in his disallowed Second Amended R32 Petition. The Court has searched the Corrected First Amended R32 Petition in vain for any reference to Lewis or any suggestion that Taylor's trial counsel provided ineffective assistance as to that witness. Thus, the only information before the Court is that Taylor raised the issue of ineffective assistance pertaining to Lewis for the first time in his disallowed Second Amended R32 Petition.
With respect to Taylor's ineffective-assistance claim directed at trial counsel's purported failure to "investigate[] or more competently cross examine[] Mr. Clark regarding the basis for his recantation" (doc. 25, ¶ 248), that portion of Claim III.B.v was (at least in part) presented in Taylor's Corrected First Amended R32 Petition. In that pleading, Taylor asserted that "trial counsel unreasonably failed to cross-examine Brian [sic] Clark as to what caused him to recant his testimony during the trial." (Vol. 22, R-56 at ¶ 152.) But the Court of Criminal Appeals found this claim to be insufficiently pleaded on appeal and therefore waived for noncompliance with Rule 28(a)(10).
Taylor devotes a significant chunk of his § 2254 Petition to Claim III.C, which alleges ineffective assistance of trial counsel during the penalty phase. (Doc. 25, ¶¶ 263-354.) As pleaded in the § 2254 Petition, Claim III.C includes at least 16 subclaims, to-wit: (i) trial counsel failed to conduct "a professionally reasonable mitigation investigation" (Claim III.C.i); (ii) trial counsel failed to investigate and present evidence that Taylor was raised in a poor household with little adult supervision (Claim III.C.ii.a.i); (iii) trial counsel failed to investigate and present evidence that Taylor's mother attempted to safeguard her children from the risks of drugs, violence and molestation, that she held high expectations for her children, that she did not recall Taylor's poor academic record, and that she told Taylor that his father (who did not live with them and with whom she had never had any meaningful relationship) was stupid and worthless (Claim III.C.ii.a.ii); (iv) trial counsel failed to consult a mental health expert who would have discovered that Taylor was unable to appreciate consequences, had delusions of grandeur, had intellectual deficits, possessed poor reasoning and judgment skills, was unable to engage in routine tasks, displayed inability to plan long-term, and had hyperactivity (Claim III.C.ii.b.i); (v) trial counsel failed to investigate and present evidence that Taylor was unable to hold a job for more than a few months, could not perform basic tasks assigned to him at work, could not engage in long-term planning, and was unable to do laundry or pay bills (Claim III.C.ii.b.ii); (vi) trial counsel failed to investigate and present evidence of Taylor's poor academic record, including receiving barely passing grades, having difficulty with homework, and showing inability to concentrate (Claim III.C.ii.b.iii); (vii) trial counsel failed to investigate and present evidence that Taylor developed mental illness because his mother was cold to him, he had delusions of grandeur, and he had negative feelings of self-worth because his older brother criticized him (Claim III.C.ii.b.iv); (viii) trial counsel failed to consult a mitigation expert who might have performed a professional analysis of social and environmental factors that may have influenced Taylor's behavior (Claim III.C.ii.c.i); (ix) trial counsel failed to investigate and present evidence about the hardships of living in Prichard, Alabama during Taylor's childhood, including the crack cocaine epidemic and underfunded schools (Claim III.C.ii.c.ii); (x) trial counsel failed to investigate and present evidence about Taylor's mother's difficult life, including that she was raised in a broken home with an emotionally abusive stepmother and that she was deeply suspicious of stepfathers (Claim III.C.ii.c.iii); (xi) trial counsel failed to investigate and present evidence that Taylor's father was one of 16 children and had fathered approximately 15 children of his own, that he rarely saw many of his children, and that he had a drinking problem (Claim III.C.ii.c.iv); (xii) trial counsel failed to elicit testimony about Taylor's seven-year old son, Kenny, the fact that Kenny's stepfather is a physically abusive drug dealer, and the likelihood that executing Taylor would have an enormous impact on Kenny (Claim III.C.ii.d.i); (xiii) trial counsel failed to elicit testimony that Glenda Washington viewed Taylor as kind, loyal, and generous, that Glenn Hockaday was a close friend of Taylor's in junior high school and early high school, and that Patricia Ramos had observed Taylor to be sweet and kind during a two-week hospital orderly training session at USA Medical Center because he had once captured a mouse while nurses and patients were scared (Claim III.C.ii.d.ii); (xiv) trial counsel elicited damaging testimony from Bishop James Finley that he did not know Taylor personally and that Taylor attended church only occasionally (Claim III.C.iii.a); (xv) trial counsel failed to elicit helpful testimony from Taylor's mother and sisters by not preparing them or asking the right questions that would have led to unspecified significant mitigation evidence (Claim III.C.iii.b); and (xvi) trial counsel failed to elicit helpful testimony from Taylor about the meaning of the term "misprision of a felony," an offense of which he had previously been convicted (Claim III.C.iii.c).
Taylor never presented the overwhelming majority of these subclaims to the Alabama courts during Rule 32 proceedings prior to the disallowed Second Amended R32 Petition. In stark contrast to the 42-page, 92-paragraph claim of penalty-phase ineffective assistance of counsel presented in his § 2254 Petition, the corresponding claim in Taylor's Corrected First Amended R32 Petition consisted of only six pages and 14 paragraphs. (R32 Claim IV.C.5 (vol. 22, R-56 at ¶¶ 162-175).) Taylor's Rule 32 penalty-phase ineffective-assistance claim asserted the following specific allegations: (i) trial counsel was ineffective in failing to call Taylor's older brother Jeff, who would have testified to his relationship with Taylor and his positive views of Taylor's character; (ii) trial counsel was ineffective in failing to elicit testimony about Taylor's son, Kenny, and the enormous impact Taylor's execution would have on Kenny; (iii) trial counsel was ineffective in failing to conduct an adequate mitigation investigation by not meeting with potential witnesses, interviewing family members or obtaining records; (iv) trial counsel was ineffective in failing to retain a mental health expert; (v) trial counsel was ineffective in failing to consult with a mitigation expert; and (vi) trial counsel was ineffective in failing to conduct re-direct examination of Taylor as to the meaning of the term "misprision of a felony." (Id.)
Upon side-by-side comparison of the two pleadings, the Court finds that the only subclaims set forth in Claim III.C of Taylor's § 2254 Petition that were fairly presented to the Alabama courts in his Corrected First Amended R32 Petition were Claim III.C.ii.b.i (failure to consult a mental health expert), Claim III.C.ii.c.i (failure to consult a mitigation expert), Claim III.C.ii.d.i (failure to elicit testimony about Taylor's son), and Claim III.C.iii.c (failure to examine Taylor as to the meaning of "misprision of a felony"). All other subparts of Claim III.C were not exhausted in the Alabama courts in the Rule 32 proceedings because they are inadequately presented (if they were even presented at all) in the Corrected First Amended R32 Petition. Those unexhausted subparts (Claims III.C.i, III.C.ii.a.i, III.C.ii.a.ii, III.C.ii.b.ii, III.C.ii.b.iii, III.C.ii.b.iv, III.C.ii.c.ii, III.C.ii.c.iii, III.C.ii.c.iv, III.C.ii.d.ii, III.C.iii.a, and III.C.iii.b) are procedurally defaulted and will not be considered on the merits in these federal habeas proceedings.
Of the four subparts to Claim III.C that Taylor did fairly present to Alabama courts in his Corrected First Amended R32 Petition, three of them are nonetheless procedurally defaulted. With respect to each of Claim III.C.ii.b.i (failure to consult a mental health expert), Claim III.C.ii.c.i (failure to consult a mitigation expert), and Claim III.C.ii.d.i (failure to elicit testimony about Taylor's son), the Alabama Court of Criminal Appeals declined to consider those issues on the merits because Taylor's appellate brief did not comply with the requirements of Rule 28(a)(10).
The only subclaim in Claim III.C that is properly exhausted and available for § 2254 review on the merits is Claim III.C.iii.c, in which Taylor argues that trial counsel furnished ineffective assistance of counsel by failing to examine Taylor as to the term "misprision of a felony."
In state post-conviction proceedings, the trial court concluded that Taylor had failed to carry his burden on that claim because, during the Rule 32 hearing, Taylor neglected to question trial counsel about the strategy underlying that decision. In light of Taylor's failure to develop a record as to that particular subclaim, the trial court presumed that trial counsel's determination not to ask that follow-up question was reasonable. After all, the trial court wrote, "[t]rial counsel would have been quite reasonable, for example, in preferring to quickly move past Taylor's prior conviction rather than lingering over it and allowing further details of the crime to be presented." (Vol. 53, R-131 at 18.) The Alabama Court of Criminal Appeals agreed with the trial court's reasoning, which it supplemented by accurately observing that "Taylor failed to allege or prove that he would have been able to provide the correct meaning of `the arcane legal term' if he had been asked that question by trial counsel." (Vol. 53, R-134 at 15.) If counsel had asked the question, then, the record does not show that Taylor was capable of answering it correctly. The appellate court also found no prejudice and rejected Taylor's speculative argument that "an explanation of the meaning of misprision of a felony would have prompted more of the jurors to recommend life without parole." (Id.) The Court finds nothing objectively unreasonable in the state courts' application of Strickland principles to this subclaim. It was neither constitutionally deficient performance nor prejudicial under Strickland for trial counsel to refrain from asking Taylor to define the term "misprision of a felony" for the jury on re-direct examination during the penalty phase. No habeas relief is warranted on this subclaim.
Because Subclaim III.C.iii.c fails on the merits, and all other subclaims are procedurally defaulted, Claim III.C is properly denied in its entirety.
Claim III.D of Taylor's § 2254 Petition is grounded in the premise that "Defense counsel provided constitutionally ineffective assistance by failing to competently litigate Mr. Taylor's motion for a new trial." (Doc. 25, ¶ 355.) As framed in the § 2254 Petition, this claim is subdivided into two subclaims. First, in Claim III.D.i, Taylor argues that trial counsel failed to investigate a juror's statement on a radio show that the jury was aware of Taylor's criminal history, and specifically criticizes trial counsel for failing to examine exhibits admitted into evidence to discern how the jury could have had access to that information. (Id., ¶¶ 356-61.) Second, in Claim III.D.ii, Taylor maintains that trial counsel failed to investigate the Clark recantation issue by interviewing or eliciting testimony from Sergeant Goode and Lieutenant York, who were alleged to have been present when Warden Gaston allegedly threatened Clark into recanting. (Id., ¶¶ 362-67.)
With respect to Claim III.D.i, the State posits that this subclaim was never raised in state post-conviction proceedings, such that it is not exhausted. (Doc. 33, at 90.) In response, Taylor makes a blanket argument that Claim III.D.i was exhausted because he "clearly alleged in the Corrected First Amended Petition that Trial Counsel provided ineffective assistance of counsel by failing to adequately pursue Mr. Taylor's motion for new trial" and that he "similarly alleged his claim regarding a new trial in the Second Amended Petition." (Doc. 43, at 40.) Taylor's assertions miss the point. To be sure, both his Corrected First Amended R32 Petition and his disallowed Revised Second Amended R32 Petition included ineffective-assistance claims asserting that trial counsel failed adequately to pursue the motion for new trial. (Vol. 22, R-56 at ¶¶ 177-79; vol. 46. R-102 at ¶¶ 255-57.) But nowhere in those claims did Taylor allege that trial counsel "[f]ailed to competently pursue the grounds that the jury considered improper evidence regarding Mr. Taylor's criminal record," which is the theory animating Claim III.D.i. Indeed, nowhere in the Rule 32 petitions did Taylor even suggest that trial counsel had been ineffective as to the access-to-criminal-record portion of the motion for new trial.
As for Claim III.D.ii, it was presented in the Corrected First Amended R32 Petition; however, the Alabama Court of Appeals rejected it because Taylor's appellate brief as to this claim was not compliant with Rule 28(a)(10).
In Claim III.F of his § 2254 Petition, Taylor seeks to aggregate his numerous claims of ineffective assistance of trial counsel into a separate claim of cumulative error, arguing that the cumulative effect of counsel's errors deprived him of effective assistance as guaranteed under the Sixth and Fourteenth Amendments. During state post-conviction proceedings, the Alabama Court of Criminal Appeals rejected this claim because "upon consideration of the properly-pleaded claims of ineffective assistance of counsel, Taylor failed to prove even one instance of deficient performance, let alone several." (Vol. 53, R-134 at 21.) On that basis, the Alabama appellate court concluded that even if a claim of cumulative ineffective assistance could be viable, Taylor would not succeed, in that "we would find that [Taylor's] substantial rights had not been affected, because we have found no error in the instances argued in the petition." (Id. (citation omitted).)
The state courts' rejection of Taylor's cumulative ineffective-assistance claim was not an objectively unreasonable application of Strickland principles for at least two distinct reasons. First, it is far from certain that the cumulative error doctrine is even applicable to claims of ineffective assistance of counsel. In an unpublished decision, the Eleventh Circuit made the following observations:
Forrest v. Florida Dep't of Corrections, 342 Fed.Appx. 560, 564-65 (11
Second, even if cumulative ineffective-assistance claims were available as a matter of clearly established federal law (which Taylor has not shown to be the case), Claim III.F would fail. Considering all of Taylor's ineffective-assistance claims that are exhausted, not procedurally defaulted, and for which he has shown or may have shown constitutionally deficient performance, Taylor has not established a reasonable probability that, but for those purported errors by trial counsel, the outcome at trial would have been different. Moreover, he has not shown that the state courts' resolution of this issue was objectively unreasonable or that no fairminded jurists could resolve Claim III.F as the state courts did. Accordingly, no relief is warranted on Taylor's claim of cumulative ineffective of assistance of counsel. See, e.g., Hunt v. Commissioner, Alabama Dep't of Corrections, 666 F.3d 708, 731-32 (11
As Claim V.A of his § 2254 Petition, Taylor contends that the guilt-phase jury instructions violated his federal constitutional rights in three enumerated respects, to-wit: (i) the trial court refused to give an instruction on the lesser included offense of robbery (Claim V.A.i.a); (ii) the trial court gave an improper instruction on the lesser-included offense of felony murder (Claim V.A.i.b); and (iii) the trial court's instructions enabled the jury to convict Taylor of capital murder without finding specific intent (Claim V.A.ii). Each of these subclaims was exhausted in the state courts on direct appeal, and will be addressed in turn.
With respect to Claim V.A.i.a, Taylor asserts that he was entitled to a lesser included offense instruction for robbery because "the evidence presented at trial was such that the jury rationally could have found him guilty of committing a robbery while also acquitting him of murder," yet based on the instructions given "[t]he jury . . . had no opportunity to convict Mr. Taylor of robbery without also convicting him of murder." (Doc. 25, ¶¶ 399-400.)
The state courts' denial of this claim was not an unreasonable application of clearly established federal law. In advancing Claim V.A.i.a here, Taylor relies on the line of decisions flowing from Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Such reliance is misplaced. Those cases do not stand for the proposition that a defendant has a constitutional right to every single lesser included offense jury instruction that might conceivably fit the evidence. To the contrary, Beck and its progeny expressly refute that proposition. In Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991), the defendant argued — just as Taylor does here — that "the due process principles underlying Beck require that the jury in a capital case be instructed on every lesser included noncapital offense supported by the evidence, and that robbery was such an offense in this case." Id. at 646. In rejecting this contention, the Schad Court explained as follows:
501 U.S. at 646-47. Unlike in the Beck line of decisions, Taylor's jury was not given an all-or-nothing choice of either convicting him of a capital crime or acquitting him altogether. As such, the rule announced in Beck is inapplicable here.
Next, in Claim V.A.i.b, Taylor maintains that Judge Johnstone's felony murder instruction was unconstitutional because it "effectively deprived the jury of the opportunity to consider the lesser-included offense of felony murder . . . by suggesting that the jury could not reasonably find Mr. Taylor guilty of that charge." (Doc. 25, ¶ 404.) This claim hinges in its entirety on the trial judge's stray comment to the jury that intentional murder was "the only type of non-capital murder you could find because felony murder would require that the killing take place during the course of a robbery." (Vol. 9, R-23 at 1512.) Taylor is correct that Judge Johnstone uttered those words while instructing the jury. But Taylor ignores (i) the context in which such comments were made, including a previous, detailed, correct instruction on felony murder (id. at 1473-78); (ii) Judge Johnstone's immediate self-correction prefaced by the phrase "I will have to back up" (id. at 1512); and (iii) his detailed, accurate instruction on felony murder thereafter.
Taylor's Claim V.A.ii is predicated on the notion that Judge Johnstone's "capital murder instruction unconstitutionally relieved the State of its burden to prove Mr. Taylor's specific intent to kill." (Doc. 25, ¶ 415.) Once again, Taylor's argument focuses on a tiny excerpt of the trial judge's instructions to the jury, to-wit:
(Vol. 9, R-23 at 1473.) Taken in isolation, these two sentences appear to state that Taylor could be found guilty of capital murder so long as he killed a victim, attempted to kill a victim,
After careful review of the transcript, the Court finds no error in the Alabama appellate court's reasoning or conclusion. Throughout his instructions, Judge Johnstone repeatedly emphasized that the jury could not return a verdict of capital murder against Taylor unless they found beyond a reasonable doubt that he had a specific intent to kill. (Vol. 9, R-23 at 1467-68 ("For purposes of proof of a capital murder charge murder is the intentional, unjustified killing of another human being."), 1468 ("A person commits the crime of murder if with intent to cause the death of another person, he causes the death of that person or of another person. . . . [T]hat is the type of murder that must be or that is an essential element of capital murder. It is an intentional killing."), 1468-69 ("If the state's evidence on count two, three or four convinces you beyond a reasonable doubt that . . . [d]uring the commission of the robbery . . . the defendant committed intentional murder . . . then that is evidence that will sustain a conviction of capital murder on counts two, three and four."), 1471 ("In order for you to convict this defendant under count one the evidence would have to convince you beyond a reasonable doubt that this defendant . . . intended in his own brain . . . that he would kill or that he and his accomplice would kill, two or more of these victims . . . ."), 1471-72 ("If, however, you were to harbor a reasonable doubt that this defendant intended to kill more than one of these three victims, then you could not find the defendant guilty of this type of capital murder."), 1472 ("a defendant may not be convicted of capital murder as an accomplice to that capital murder unless the evidence convinces you beyond a reasonable doubt that the defendant had the particularized intent to kill"), 1505 ("If you have a reasonable doubt . . . that the defendant intentionally killed two or more people as part of the same scheme or course of conduct, then you couldn't convict him of capital murder . . . ."), 1507 ("if you don't find the requisite intent, you can't convict him"), 1508 ("In order for the state to get a capital conviction the state would have to prove that the defendant intended to kill somebody during the robbery . . . ."), 1509 ("And while that activity was going on, . . . which would constitute a first degree robbery, . . . the defendant intended to kill one of the three people there"), 1510 ("That would constitute capital murder because it's the intentional murder during the course of a robbery. That's capital murder.").
Reviewing these instructions as a whole, rather than opportunistically parsing an isolated line or two out of context as Taylor has done, the Court readily finds that Judge Johnstone's instructions to the jury did not eliminate or reduce the State's burden to prove beyond a reasonable doubt that Taylor possessed the requisite specific intent to kill. The Court finds no error in the Alabama courts' determination that the trial court gave a complete and correct instruction on the requirements to convict for capital murder. Claim V.A.ii lacks merit.
Claim V.B of Taylor's § 2254 Petition asserts that the trial court violated his constitutional rights by "fail[ing] to clearly instruct the jury that each juror should individually consider the mitigation evidence presented." (Doc. 25, ¶ 425.) The legal foundation of this claim is Supreme Court precedent holding that "individualized consideration of mitigating factors . . . [is] required by the Eighth and Fourteenth Amendments in capital cases." Lockett v. Ohio, 438 U.S. 586, 606, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). On that basis, the Supreme Court has vacated death sentences where "there is a substantial probability that reasonable jurors. . . well may have thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance." Mills v. Maryland, 486 U.S. 367, 383, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988); see also McKoy v. North Carolina, 494 U.S. 433, 442-43, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990) ("Mills requires that each juror be permitted to consider and give effect to mitigating evidence when deciding the ultimate question whether to vote for a sentence of death," meaning that "each juror must be allowed to consider all mitigating evidence").
Taylor's position is that there is Mills error here because the trial judge "failed to clearly instruct the jury that each juror should individually consider the mitigation evidence presented" (Doc. 25, ¶ 425). However, the Eleventh Circuit has expressly rejected the notion that clearly established federal law requires such an affirmative instruction where the trial court has not suggested that unanimity as to mitigating factors is necessary. See Lucas v. Warden, Georgia Diagnostic and Classification Prison, 771 F.3d 785, 807 (11
In Claim VI of his § 2254 Petition, Taylor raises a challenge to the sufficiency of the evidence to support his capital murder convictions. Petitioner's position is that the evidence presented by the State "fell far short of satisfying the State's burden to prove each element of the capital murder charge beyond a reasonable doubt." (Doc. 25, ¶ 434.) Expounding on this theory, Taylor argues that McMillan's testimony was the only evidence placing him at Steve Dyas Motors at the time of the murders, that McMillan's testimony was inherently untrustworthy, and that all other "evidence presented at trial was circumstantial and did no more than give rise to inferences of suspicious conduct." (Id., ¶ 436.) Because "generalized inferences are constitutionally insufficient to sustain a conviction" (id.), Taylor contends that his capital murder convictions violate the Fourteenth Amendment.
When Taylor presented this claim on direct appeal, the Alabama Court of Criminal Appeals emphatically rejected it in the following terms:
Taylor, 808 So.2d at 1202.
The Supreme Court has explained that sufficiency-of-the-evidence challenges "face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference." Coleman v. Johnson, 566 U.S. 650, 132 S.Ct. 2060, 2062, 182 L.Ed.2d 978 (2012). The first layer is the principle that, on direct appeal, "[a] reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury." Id. (citation omitted). "The evidence is sufficient to support a conviction whenever, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Parker v. Matthews, 567 U.S. 37, 43, 132 S.Ct. 2148, 183 L.Ed.2d 32 (2012). The second layer of deference is that a federal court on § 2254 review may overturn a state court's sufficiency ruling "only if the state court decision was objectively unreasonable." Coleman, 132 S.Ct. at 2062 (citation omitted). In conducting such an inquiry, "a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court." Cavazos v. Smith, 565 U.S. 1, 2, 132 S.Ct. 2, 181 L.Ed.2d 311 (2011). And of course, "the minimum amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of federal law." Coleman, 132 S.Ct. at 2064.
Taylor's attack on the sufficiency of the evidence to convict him of capital murder cannot overcome either of these layers of judicial deference, much less both of them. After careful examination of the trial record and the Alabama appellate court's ruling on direct appeal, the Court readily concludes that (i) viewing the evidence in the light most favorable to the State, a rational trier of fact could have found the essential elements of capital murder beyond a reasonable doubt as to each count of conviction; and (ii) it was not objectively unreasonable for the Alabama Court of Criminal appeals so to determine.
As Claim VII of his § 2254 Petition, Taylor maintains that the trial court violated the Eighth and Fourteenth Amendments by considering "statements by the victims' family members regarding their views as to the appropriate sentence for Mr. Taylor" at the sentencing hearing. (Doc. 25, ¶ 440.) In particular, two family members of the victims gave statements at the sentencing hearing in which they articulated their wishes that Taylor receive the death penalty. (Vol. 10, R-37 at 1614-16.) Letters of a similar tenor from various additional family members were received by Judge Johnstone at the sentencing hearing and marked as a bench hearing exhibit. (Id. at 1612, 1617-18.) Defense counsel did not object to any of these items. (Id. at 1612-18.) Also, the presentence investigation report reflected that Steve Dyas's widow had expressed her opinion that death was the appropriate punishment for Taylor. (Vol. 10, R-41 at 1773.) The trial judge's sentencing order expressly states that he "considered" the presentence investigation report and the "evidence and materials submitted at the final sentencing hearing." (Vol. 1, R-2 at 154.) In light of these record facts, Taylor contends that, in deciding to override the jury's recommendation of a life sentence, Judge Johnstone violated Taylor's Eighth and Fourteenth Amendment rights by considering the victims' family members' wishes that a death sentence be imposed. (Doc. 25, ¶ 445.)
Federal law is clear that "the Eighth Amendment erects no per se bar against the introduction of victim impact evidence." United States v. Brown, 441 F.3d 1330, 1351 (11
On direct appeal, Taylor argued that Judge Johnstone improperly considered victim-impact statements containing recommendations as to the appropriate punishment. The Alabama Court of Criminal Appeals properly acknowledged Payne v. Tennessee and correctly observed that "the trial court could not consider that part of the victim-impact evidence regarding . . . recommendations of an appropriate punishment." Taylor, 808 So.2d at 1167. Nonetheless, the appellate court found no error, reasoning that "[w]e find absolutely no evidence that the family members' sentence recommendations were considered by the trial court at sentencing." Id. at 1168. In so concluding, the Alabama Court of Criminal Appeals relied on (i) "[o]ur review of the record and the trial court's sentencing order;" (ii) Judge Johnstone's clear statement that the victim-impact letters were "not evidence" but would simply be marked as a "bench hearing exhibit offered by the State;" (iii) Judge Johnstone's comment at the close of the sentencing hearing that "I am going to follow the law to the letter" in deliberating on Taylor's sentence; (iv) Judge Johnstone's remark immediately before pronouncing sentence that he had "considered all materials appropriate for consideration;" and (v) the legal presumption that "[t]rial judges are presumed to know the law and to follow it in making their decisions." Id.
After careful review of the parties' briefs, the record, and applicable law, the Court finds that Alabama courts' adjudication of this issue was neither contrary to, nor an unreasonable application of, clearly established Supreme Court precedent. Nowhere in the sentencing hearing or sentencing order did Judge Johnstone suggest that he would take, or that he was taking, into account the victims' family members' sentencing recommendations in deciding whether to override the jury's 7-5 vote in favor of life imprisonment. It is well settled that "[t]rial judges are presumed to know the law and to apply it in making their decisions." Lambrix v. Singletary, 520 U.S. 518, 532 n.4, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997) (citation omitted) (where there was a question as to whether the trial judge appropriately narrowed an aggravating factor in sentencing deliberations, explaining that "there is always a `reason to believe' that" he had done so because of this presumption, "which we consider fully adequate").
Next, Taylor brings a series of subclaims under the heading, "The Alabama State Courts Deprived Jarrod Taylor of an Opportunity to Fully and Fairly Litigate His Claims" (doc. 25, at 211.) In this Claim X, Taylor essentially rehashes the Alabama courts' refusal to allow him to file his Second Amended R32 Petition and his Revised Second Amended R32 Petition, although this time he frames these arguments in terms of due process, as opposed to the state-law theories advanced in his procedural objections previously addressed in section II.A.3 and elsewhere in this Order. Specifically, in Claim X.A, Taylor asserts that it violated due process and fundamental fairness for the Alabama courts neither to allow him to amend his Rule 32 petition on limited remand nor to order a separate remand for the sole purpose of facilitating such amendments. In Claims X.B.i, X.B.ii, X.B.iii and X.B.iv, Taylor identifies various claims and allegations he sought to add via his disallowed Second Amended R32 Petition and Revised Second Amended R32 Petition, characterizes them as "extraordinary" and says those claims and evidence involved "newly discovered meritorious claims and . . . greater specificity to claims he previously had asserted." (Doc. 25, ¶ 472.)
If Claim X feels like déjà vu, it should. At its core, Claim X is simply an avenue for Taylor to relitigate — more than 200 pages and 450 paragraphs into his § 2254 Petition — the procedural issues relating to the disallowed Second Amended R32 Petition and Revised Second Amended R32 Petition, to which the undersigned has already devoted more than 30 pages of analysis in this Order. (See Sections III.A and III.D, supra.) The Court has already explained in extensive detail why it was not error for the Alabama courts to decline to allow Taylor to amend his Rule 32 petition following limited remand. The Court has further examined Taylor's numerous arguments that his procedural default should be excused and that he should be allowed to raise those claims now. As to each issue, the Court has already found that Taylor has failed to satisfy the cause-and-prejudice standard; that is, each one of the claims described in Claim X.B either could have been raised before but was not, or would not have had a reasonable probability of changing the result of the guilt or penalty phase of Taylor's trial. Little purpose would be served by engaging in a redundant reiteration of that analysis here.
Rather than re-plowing the same ground covered in great detail in sections III.A and III.D of this Order, the Court will simply incorporate it by reference here, and supplement it with additional findings and conclusions. The key conclusion is that Taylor's efforts to recast his attack on the Alabama courts' interpretation of the limited-remand rule in the procedural default analysis as a separate due process claim in his § 2254 Petition are unavailing. It is well settled that due process protections are limited in the state postconviction context, to-wit:
Cunningham v. District Attorney's Office for Escambia County, 592 F.3d 1237, 1260-61 (11
In Count X, Taylor apparently seeks to travel under a theory of fundamental fairness. But there was nothing fundamentally unfair about the manner in which the Alabama courts adjudicated his Rule 32 proceedings. Represented by substantially the same legal team that represents him today, Taylor filed his original Rule 32 Petition in Mobile County Circuit Court on July 31, 2002, more than a year after the certificate of judgment was entered on his direct appeal. He was allowed to amend the Rule 32 Petition three times, once in August 2002 and twice more in May 2003 after motion practice and a hearing on the State's motion to dismiss. For 26 months after the third amendment (which Taylor styled his "Corrected First Amended Rule 32 Petition"), Taylor's Rule 32 petition was pending at the trial court level. His legal team was free to conduct an investigation, interview witnesses, review exhibits, and (if appropriate) move for further amendments of that Rule 32 petition to assert more or different claims if and as they saw fit.
After five years of appeals, in October 2010 the Alabama Court of Criminal Appeals issued a limited remand of the Rule 32 proceedings to Mobile County Circuit Court for the sole purpose of resolving those claims that the parties agreed had not been properly dismissed by the trial judge. Following that remand, Taylor repeatedly sought to amend his Rule 32 proceedings to assert brand new claims in the Mobile County Circuit Court. The Alabama courts' refusal to allow him to do so was not repugnant to principles of fundamental fairness. Alabama courts routinely disallow (for lack of jurisdiction) Rule 32 amendments that are beyond the scope of a limited appellate remand. What's more, the vast majority of the new claims and issues that Taylor sought to raise in his disallowed Second Amended R32 Petition and Revised Second Amended R32 Petition involved facts that were either previously known to him or could have been discovered by him with diligence prior to August 2005. As for any disallowed claims that may have been based on truly new, previously unavailable evidence, such claims were not reasonably likely to make any difference in the outcome of Taylor's trial. There was nothing fundamentally unfair about any of this.
Implicit in Count X is Taylor's apparent belief that the Due Process Clause entitled him to amend his Rule 32 petition whenever he wished, as frequently as he wished, and that the state courts were required to keep his postconviction proceedings open indefinitely to account for the possibility that he might desire amendments sometime in the distant future. Taylor cites no authority, much less clearly established federal law, for that proposition, and the undersigned is aware of none. Moreover, while Count X is laden with statements that Taylor was not allowed to pursue these claims in Alabama courts "[t]hrough no wrongdoing of his own" and "[d]espite Mr. Taylor's diligent efforts," such characterizations of the facts are inaccurate. As discussed in Section III.D of this Order, supra, Taylor had unfettered access to most of these witnesses and could readily have performed an investigation prior to 2005 that would have revealed the factual predicate of the vast majority of the new, disallowed claims in his Second Amended R32 Petition and Revised Second Amended R32 Petition.
Simply put, the Alabama courts were under no constitutional obligation to allow Taylor to keep on amending his Rule 32 petition at will (as he had already done thrice) years after the fact, particularly after a limited remand from state appellate courts. It was entirely proper under state law for Alabama courts to disallow petitioner's Second Amended R32 Petition and Revised Second Amended R32 Petition. Those rulings did not infringe upon Taylor's due process rights or implicate principles of fundamental fairness. The new claims Taylor sought to raise via those disallowed Rule 32 amendments were not extraordinary. On the contrary, they were claims that he either (i) could and should have raised years earlier with reasonable diligence, or (ii) would not have made any difference in the outcome of the guilt or penalty phases of trial. Given these circumstances, no independent constitutional violation arises from the state courts' refusal to allow Taylor to amend his Rule 32 petition a fourth or a fifth time, roughly nine years after those Rule 32 proceedings commenced and six years after the Rule 32 petition was initially dismissed by the trial court. Nor does due process demand that an evidentiary hearing be convened to allow Taylor to present evidence supporting these procedurally barred, disallowed claims, none of which can withstand the requisite cause-and-prejudice analysis to excuse the default.
Claim X and all of its constituent subparts, which essentially repackage and reargue in constitutional guise the procedural default issue as to disallowed new claims in state postconviction proceedings, are properly denied in their entirety.
Taylor's § 2254 Petition also includes an array of claims challenging the constitutionality of the death penalty, both on its face and as applied to him. Beginning with Claim XI.A.i, Taylor posits that, generally speaking, "the death penalty is unconstitutional because it constitutes cruel and unusual punishment." (Doc. 25, at 230.) The State responds that this claim is unexhausted. Even if Taylor had exhausted such a claim in the Alabama courts, it would not matter. The Supreme Court has categorically rejected the notion that the death penalty itself violates the Eighth Amendment's prohibition on cruel and unusual punishment. See, e.g., Baze v. Rees, 553 U.S. 35, 47, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) ("We begin with the principle, settled by Gregg, that capital punishment is constitutional."); Woodson v. North Carolina, 428 U.S. 280, 285, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) ("The petitioners argue that the imposition of the death penalty under any circumstances is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. We reject this argument . . . ."); Gregg v. Georgia, 428 U.S. 153, 187, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) ("We hold that the death penalty is not a form of punishment that may never be imposed, regardless of the circumstances of the offense, regardless of the character of the offender, and regardless of the procedure followed in reaching the decision to impose it.").
In Claim XI.A.iii, Taylor advances a theory that "[t]he modern death penalty violates the Eighth and Fourteenth Amendments because the systemic delay between sentencing and execution does not further either of the government's penological goals of deterrence or retribution." (Doc. 25, ¶ 509.) Taylor never presented this subclaim to the Alabama courts, either on direct appeal or in his state postconviction proceedings. As such, this claim is not exhausted. In an effort to show cause and prejudice for this procedural default, Taylor insists that Claim XI.A.iii is "based on newly emerging trends" and "it was long after Mr. Taylor filed the Corrected First Amended [R32] Petition that the delays in the death penalty system that gave rise to Mr. Taylor's claim emerged." (Doc. 43, at 67.) Taylor's own citation to the Capital Punishment Statistical Tables found at the Bureau of Justice Statistics website belies his argument. Indeed, Table 10 (on which Taylor expressly relies in his Reply (doc. 43, at 67)) of those statistical tables reflects that in 1999 (three years before Taylor filed his original Rule 32 petition) the average elapsed time from sentence to execution was 143 months, and that in 2001 it was 142 months.
In sum, Taylor has neither made a factual showing nor advanced a viable argument that thse "delays in the death penalty system" of which he complains in Claim XI.A.iii were inadequately established as of 2003, when he last successfully amended his Rule 32 petition in state court. Moreover, the table on which he relies reflects only the nationwide trend. Taylor makes no suggestion that similar trends have occurred in the State of Alabama, whose death penalty procedures are, of course, the only ones relevant to his case. In short, Claim XI.A.iii was plainly available to Taylor at the time he commenced state post-conviction proceedings. Because he has failed to establish cause and prejudice to excuse his failure to exhaust it, Claim XI.A.iii cannot and will not be considered on the merits.
Taylor next moves from general attacks on the constitutionality of the death penalty to arguments that Alabama's death penalty statute is facially unconstitutional. In Claim XI.B.i, Taylor maintains that "[t]he Alabama capital statute violates the Eighth and Fourteenth Amendments by vesting the trial judge with almost complete discretion to impose a death sentence. . . . Such `unbridled discretion' creates a grave risk that the death penalty will be applied in an arbitrary and capricious manner." (Doc. 25, ¶ 518.) More than two decades ago, the Supreme Court rejected this argument, finding that the Alabama capital sentencing scheme "adequately channels the sentencer's discretion so as to prevent arbitrary results" because "[c]onsistent with established constitutional law, Alabama has chosen to guide the sentencing decision by requiring the jury and judge to weigh aggravating and mitigating circumstances." Harris v. Alabama, 513 U.S. 504, 511, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995). In so finding, the Harris Court expressly held that "the Eighth Amendment does not require the State to define the weight the sentencing judge must accord an advisory jury verdict." Id. at 512.
Although Taylor acknowledges (as he must) that Harris v. Alabama conclusively defeats Claim XI.B.i, he nonetheless insists that this claim has merit because "`evolving standards of decency' necessitate reconsideration of the constitutionality of Alabama's capital statute." (Doc. 25, ¶ 519.) But he cites no authority suggesting that the U.S. Supreme Court has changed its mind about the Harris holding that the Alabama capital scheme adequately channels the sentencer's discretion to prevent arbitrary results. In recent years, the Eleventh Circuit has continued to apply and accept Harris as settled law. See Madison v. Commissioner, Ala. Dep't of Corrections, 677 F.3d 1333, 1336 (11
As his next challenge, in Claim XI.B.ii Taylor maintains that Alabama's death penalty scheme violates Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). According to Taylor, the Alabama capital statute "violates Ring and Apprendi because its judicial override permits judges to displace the jury's responsibility to make the ultimate factual findings underlying the imposition of death sentences;" because it "permits judges to sentence a defendant to death without making the requisite factual finding, i.e., that the aggravating circumstances outweigh the mitigating circumstances, by the requisite standard of proof, i.e., beyond a reasonable doubt;" and because "it permits imposition of death sentences upon a less-than-unanimous jury recommendation of such a sentence." (Doc. 25, ¶¶ 530, 534, 539.)
The Alabama courts rejected Taylor's Ring claim, both because (i) Ring "does not apply to Taylor whose conviction became final before Ring was decided;" and (ii) "Alabama's capital-sentencing scheme is not unconstitutional under Ring and Apprendi." (R-128, at *11.) For the reasons explained below, neither of these determinations was contrary to or an unreasonable application of clearly established federal law.
As a threshold matter, the Alabama courts correctly ruled that Taylor's reliance on Ring v. Arizona is misplaced because that decision is not applicable here. The Supreme Court has declared that "Ring announced a new procedural rule that does not apply retroactively to cases already final on direct review." Schriro v. Summerlin, 542 U.S. 348, 358, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). The Ring opinion was handed down on June 24, 2002. By contrast, the U.S. Supreme Court denied Taylor's petition for writ of certiorari, effectively concluding his direct appeals and rendering his conviction and sentence final on direct review, some five and a half months earlier, on January 7, 2002. (Vol. 53, R-116.)
Additionally, Alabama courts properly concluded that even if Ring could be applied to Taylor, it would not advance his cause. The arguments presented by Taylor in Claim XI.B.ii venture far afield from the quite limited holding of that case. Ring explained that "[c]apital defendants, no less than noncapital defendants . . . are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment." 536 U.S. at 589. The specific legal effect of Ring was to overrule prior Supreme Court jurisprudence that "allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty." Id. at 609. "The holding of Ring is narrow: the Sixth Amendment's guarantee of jury trials requires that the finding of an aggravating circumstance that is necessary to imposition of the death penalty must be found by a jury." Lee v. Commissioner, Alabama Dep't of Corrections, 726 F.3d 1172, 1198 (11
On January 12, 2016, at the close of briefing on Taylor's § 2254 Petition, the Supreme Court decided Hurst v. Florida, 136 S.Ct. 616, 193 L.Ed.3d 504 (2016). In Hurst, the Court applied Ring to Florida's capital sentencing scheme and found it to be unconstitutional. The Hurst opinion stressed that "[l]ike Arizona at the time of Ring, Florida does not require the jury to make the critical findings necessary to impose the death penalty. Rather, Florida requires a judge to find these facts." 136 S.Ct. at 622. Therefore, "[i]n light of Ring, we hold that Hurst's sentence violates the Sixth Amendment." Id. The reasoning of Hurst is concisely summarized at the end of the opinion as follows:
Id. at 624 (emphasis added). To allow the parties a full and fair opportunity to be heard on the impact (if any) of Hurst v. Florida, the undersigned entered an Order (doc. 42) on January 12, 2016 directing supplemental briefing on the ramifications of Hurst for Taylor's federal habeas petition. Petitioner filed a 46-page supplemental brief (doc. 46) confined to Hurst, and the State filed an 18-page response (doc. 47). After careful review of the parties' arguments, the undersigned concludes that Hurst does not alter the reasoning or result of Taylor's Claim XI.B.ii for two distinct reasons.
First, as both the Eleventh Circuit and multiple district court opinions in this Circuit have already found, Hurst is not retroactively applicable on collateral review. See Lambrix v. Secretary, Florida Dep't of Corrections, 851 F.3d 1158, 1165 n.2 (11
To understand why Hurst cannot be applied retroactively in Taylor's case, we must utilize the framework set forth in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). In Teague, the Supreme Court "laid out the framework to be used in determining whether a rule announced in one of [its] opinions should be applied retroactively to judgments in criminal cases that are already final." Whorton v. Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007). "Under the Teague framework, an old rule applies both on direct and collateral review, but a new rule is generally applicable only to cases that are still on direct review," with two narrow exceptions. Id. Those exceptions are that "[n]ew substantive rules generally apply retroactively" and that retroactive effect is given to a "small set of watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Schriro v. Summerlin, 542 U.S. 348, 351-52, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (citations and internal quotation marks omitted). Hurst did not announce a "new rule" at all, but simply applied Ring v. Arizona to Florida's capital sentencing statute.
Alternatively, Hurst would not alter the result of Claim XI.B.ii even if it were properly applied to Taylor's § 2254 Petition (which it is not). Sifting through petitioner's rhetoric, it is important to be clear about what Hurst said and what it did not say. Hurst did not declare that any capital scheme vesting the final sentencing decision in a judge, rather than a jury, is unconstitutional.
The trouble for Taylor is that, on this point, the Alabama capital sentencing scheme under which he was sentenced to death is materially different from the Florida statute at issue in Hurst. In Alabama, unlike in Florida at the time of Hurst, a defendant is not death-eligible unless a jury unanimously finds beyond a reasonable doubt the existence of an aggravating circumstance. See In re Bohannon v. State, 222 So.3d 525, 534 (Ala. 2016) ("the finding required by Hurst to be made by the jury, i.e., the existence of the aggravating factor that makes a defendant death-eligible, is indeed made by the jury, not the judge, in Alabama"). Thus, the portion of the Florida capital sentencing scheme deemed constitutionally objectionable in Hurst is simply not present in Alabama. Multiple federal and state courts applying Hurst to the Alabama scheme have so concluded.
In Taylor's case, the proof is in the pudding. Taylor was charged with two different types of capital offenses, to-wit: (i) three violations of Alabama Code § 13A-5-40(a)(2), which covers "[m]urder by the defendant during a robbery in the first degree;" and (ii) one violation of Alabama Code § 13A-5-40(a)(10), which covers "[m]urder wherein two or more persons are murdered by the defendant by one act or pursuant to one scheme or course of conduct." Each of these capital offenses has a corresponding aggravating circumstance in the Alabama statutory scheme. Indeed, the robbery-murder offense described at § 13A-5-40(a)(2) pairs with the statutory aggravating circumstance that "[t]he capital offense was committed while the defendant was engaged or was an accomplice in the commission of . . . robbery." Ala. Code § 13A-5-49(4). And the multiple-murder offense described at § 13A-5-40(a)(10) pairs with the aggravating circumstance that "[t]he defendant intentionally caused the death of two or more persons by one act or pursuant to one scheme or course of conduct." Ala. Code § 13A-5-49(9).
By the terms of the Alabama statute, "any aggravating circumstance which the verdict convicting the defendant establishes was proven beyond a reasonable doubt at trial shall be considered as proven beyond a reasonable doubt for purposes of the sentence hearing." Ala. Code § 13A-5-45(f). What this means is that when Taylor's jury unanimously found beyond a reasonable doubt that he was guilty of robbery-murder under § 13A-5-40(a)(2), they also unanimously found beyond a reasonable doubt the aggravating circumstance set forth at § 13A-5-49(4). And when Taylor's jury unanimously found beyond a reasonable doubt that he was guilty of murdering two or more persons pursuant to one scheme or course of conduct under § 13A-5-40(a)(10), they also unanimously found beyond a reasonable doubt the aggravating circumstance set forth at § 13A-5-49(9). Those jury findings as to the existence of aggravating circumstances are what made Taylor death-eligible in the Alabama capital sentencing scheme. Thus, there is no Hurst v. Florida problem here because Taylor's jury unanimously found multiple aggravating circumstances (each of which rendered him eligible for the death penalty) beyond a reasonable doubt. Taylor's Hurst argument thus fails on the merits, even if that decision could properly be retroactively applied to him (which it cannot).
As Claim XI.C.ii, Taylor essentially repackages various Ring-related objections to the judicial override that resulted in his death sentences. In particular, in subclaim XI.C.ii.a, he argues that the trial judge violated Ring and Apprendi because he "necessarily made the factual finding that the aggravating circumstances of the crimes outweighed any mitigating circumstances." (Doc. 25, ¶ 553.) This claim fails because, as discussed supra, (i) Ring does not apply here, (ii) the weighing of aggravating and mitigating circumstances is not a factual finding, (iii) Ring does not support the proposition that the trial judge must perform that weighing, and (iv) the Supreme Court has never extended Ring's holding to require that the jury weigh aggravating and mitigating circumstances. Taylor insinuates that Judge Johnstone found that the jury "was not functioning `properly'" and therefore failed to "afford[] proper weight to the jury's verdict." (Doc. 25, ¶ 555.) On direct appeal, the Alabama Court of Criminal Appeals rejected this assertion, explaining that "[w]e do not find that the trial court made a legal determination that the jury was not properly functioning during the sentencing phase of trial. Our plain-error review of the record reveals a properly functioning jury during sentencing." Taylor, 808 So.3d at 1170. There was nothing objectively unreasonable about the state courts' determination and resolution of this issue. Taylor is due no relief on his theory that the trial court failed to give "proper weight" to the jury's sentencing recommendation because there is no evidence to support such a conclusion.
In subclaim XI.C.ii.b, Taylor asserts that the judicial override in this case violates Ring and Apprendi because "the factual findings upon which Mr. Taylor was sentenced to death, i.e., that the aggravating circumstance outweighed the mitigating circumstances" were not made "by the requisite standard of proof, i.e., beyond a reasonable doubt." (Doc. 25, ¶ 557.) This claim lacks merit for multiple reasons. As discussed supra, the weighing of aggravating and mitigating circumstances is not a "factual finding" at all. Neither Ring nor Apprendi says otherwise. Nor does Taylor identify any authority whatsoever supporting the proposition that the weighing of aggravating and mitigating circumstances must be performed using a "beyond a reasonable doubt" standard. The Alabama courts did not err in declining to embrace these principles for which Taylor has identified no clearly established federal law that is on-point.
Finally, in subclaim XI.C.ii.c, Taylor argues that the "imposition of death sentences where there was no unanimous jury verdict recommending death sentences violates the requirements of Ring and Apprendi that any increased penalty be based on a unanimous jury verdict." (Doc. 25, ¶ 561.) Insofar as Taylor argues that a death sentence is unconstitutional unless the jury has imposed it, the law of the land is to the contrary. See Harris, 513 U.S. at 515 ("The Constitution permits the trial judge, acting alone, to impose a capital sentence."). More broadly, Taylor improperly conflates the finding of fact that is necessary to make a defendant death-eligible (i.e., the existence of an aggravating circumstance, which was found by a unanimous jury verdict) with the decision of whether to impose a death sentence on an eligible defendant (i.e., the weighing of aggravating and mitigating circumstances, which is not a fact-finding exercise and which the Supreme Court has never held that a jury must do, much less reach a unanimous decision as to the proper weighing). This subclaim is meritless.
For all of these reasons, no federal habeas relief is available to Taylor on Claim XI.C.ii, or any of its constituent subparts.
Lastly, in Claim XI.D, Taylor raises three constitutional objections to the method of execution that the State of Alabama intends to employ to carry out his death sentence. (Doc. 25, ¶¶ 577-601.) Petitioner concedes that he brought these claims in this § 2254 Petition rather than pursuing a separate § 1983 action only "in an abundance of caution." (Doc. 43, at 47 n.12.) It is well-settled, however, that "a method-of-execution claim must be brought under § 1983 because such a claim does not attack the validity of the prisoner's conviction or death sentence." Glossip v. Gross, ___ U.S. ____, 135 S.Ct. 2726, 2738, 192 L.Ed.2d 761 (2015); see also Boyd v. Warden, Holman Correctional Facility, 856 F.3d 853, 877 (11
The Eleventh Circuit has explained that "[t]he line of demarcation between a § 1983 civil rights action and a § 2254 habeas claim is based on the effect of the claim on the inmate's conviction and/or sentence." Hutcherson v. Riley, 468 F.3d 750, 754 (11
In December 2015, more than a year after initiating these federal habeas corpus proceedings, Taylor filed a 20-page Motion for Discovery and Evidentiary Hearing (doc. 38). Each aspect of this Motion will be addressed separately.
Taylor seeks discovery on three specific topics. First, he requests discovery of any and all "materials in the State's files relating to the State's interactions with [Kenyatta] McMillan," including materials relating to McMillan's trial testimony, discussions between the State and McMillan about McMillan's trial testimony and the underlying offenses, interviews of McMillan, and documents given to McMillan by the State. (Doc. 38, at 2-3.) Taylor says these materials are necessary to help him develop Brady / Giglio claims relating to the "talking points" given to McMillan. Second, Taylor requests discovery of various materials relating to the State's exercise of peremptory strikes at Taylor's trial, as well as materials spanning a 17-year period relating to allegations or investigations of race- or gender-based jury selection by the Mobile County District Attorney's Office or the specific prosecutors involved in Taylor's trial. According to Taylor, these materials are needed for his Batson claims because "the State is required to provide a race- or gender-neutral explanation" for its peremptory challenges and because he wants to show "a pattern and practice of Batson violations in the Mobile County District Attorney's Office." (Id. at 6.) Third, Taylor requests discovery concerning the blue duffel bag marked at trial as State's Exhibit 58. In particular, Taylor seeks documents relating to the contents of that duffel bag "at any time," the custodial history of the duffel bag from December 1997 through the present day, any investigation by the State concerning the duffel bag's contents, the identities of all persons who examined the duffel bag at any time from December 1997 through the present day, and discussions between the State and any juror regarding the duffel bag. (Id. at 8.)
These requests are governed by Rule 6(a) of the Rules Governing Section 2254 Cases in the United States District Courts, which provides that "a judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure and may limit the extent of discovery." Id. In accordance with Rule 6(a), the Eleventh Circuit has observed that "habeas petitioners are not entitled to discovery as a matter of ordinary course," but that "[i]t is within the discretion of the district court to grant discovery upon a showing of good cause." Bowers v. U.S. Parole Com'n, Warden, 760 F.3d 1177, 1183 (11
In the exercise of this discretion under Rule 6(a), the Court finds that Taylor has not established good cause and that no discovery on the enumerated subjects is appropriate in this case. Taylor seeks discovery to show misconduct by the State in the areas of witness tampering, evidence tampering and Batson violations, but he is attempting to embark on a fishing expedition nearly two decades after the fact, despite having enjoyed the benefit of multiple evidentiary hearings in state court (both on the motion for new trial and during Rule 32 proceedings) to attempt to ferret out evidence supporting his claims. This is not a proper use of the Rule 6(a) discovery mechanism. See Borden v. Allen, 646 F.3d 785, 810 n.31 (11
Turning to the particular discovery requests outlined in the Motion, Taylor's claims of prosecutorial misconduct relating to alleged pressure on Kenyatta McMillan and failure to disclose evidence relating to same are found at Claims II.A.i and II.B.i of the § 2254 Petition. As set forth in section III.A. of this Order, however, these claims are procedurally defaulted from federal habeas review because Taylor failed to present them to the state courts until his disallowed Second Amended R32 Petition. Furthermore, in section III.D.2 of this Order, the undersigned found that Taylor has not shown cause and prejudice to excuse his procedural default of Claims II.A.i and II.B.i. Even if Taylor were to obtain discovery showing that the State gave McMillan written "talking points" to testify at trial that Steve Dyas was in a "praying-like" position when Taylor shot him in the head or that Sherry Gaston voiced fear about her two children when Taylor shot her in the head, the procedural default and cause-and-prejudice analyses would be unchanged. Taylor has shown no good cause to believe that discovery would develop facts showing that he is entitled to relief on Claims II.A.i and II.B.i; therefore, the Court in its discretion denies petitioner's request for discovery on the subject of McMillan's testimony.
Next, Taylor requests discovery concerning the State's exercise of peremptory challenges, as raised in Count I of his § 2254 Petition. Taylor's Batson issues were exhausted before the state courts; however, he points to nothing in the record suggesting that the Alabama courts ever denied any requests for discovery he may have made relating to his Batson claims, or any efforts to develop such evidence via evidentiary hearing. The obvious, unanswered question presented by Taylor's Motion for Discovery as to Count I is why he did not develop the record he now requests during the state-court proceedings. More fundamentally, however, the undersigned has written to the merits of Claim I in section IV.A. of this Order. For the reasons stated in section IV.A., supra, none of the discovery he seeks concerning Claim I appears likely to assist Taylor in establishing a viable Batson claim. Contrary to his Motion for Discovery, Taylor never made a prima facie case of race discrimination, and his gender discrimination claim is procedurally defaulted for noncompliance with Rule 28(a)(10); therefore, inspecting the State's notes to look for race- or gender-neutral explanations to rebut a nonexistent prima facie case is unnecessary and unhelpful. None of the requested materials would change the fact that no pattern of racially discriminatory strikes appears in this case, or that the state courts' resolution of his Batson claim was not contrary to clearly established federal law. And his requests for 17 years of records about jury selection procedures utilized by the Mobile County District Attorney's Office are a classic example of an improper fishing expedition, particularly given that he has identified no specific allegations (and cited no Alabama or federal authorities finding fault with that office's jury selection procedures) giving rise to any reason to believe that any pattern or practice of Batson violations existed during that time period. Speculation does not equate to good cause warranting habeas discovery. In its discretion, the Court finds that Taylor's discovery requests relating to Count I are not supported by good cause within the meaning of Rule 6(a), and denies them on that basis.
Finally, Taylor requests discovery relating to the contents and chain of custody of the blue duffel bag marked as State's Exhibit 58 for a nearly 20-year period. Taylor's claims about Exhibit 58 were presented as Claims II.C (prosecutorial misconduct in admitting those materials into evidence) and III.B.ii.a (ineffective assistance of trial counsel in failing to object to the admission of the duffel bag) of his § 2254 Petition. As discussed supra, however, Claims II.C and III.B.ii.a are procedurally defaulted because Taylor did not raise them in Alabama courts until his disallowed Second Amended R32 Petition; moreover, as addressed in sections III.D.6 and 7 of this Order, Taylor has failed to establish cause and prejudice to excuse the procedural default. No discovery is appropriate on procedurally defaulted claims that are not properly presented on federal habeas review. Because none of the discovery requested by Taylor would affect that analysis in any way, the Court in its discretion finds that he has not shown good cause to warrant discovery on this topic pursuant to Rule 6(a).
For all of the foregoing reasons, Taylor's Motion for Discovery is
In the same Motion, Taylor argues that he should be granted an evidentiary hearing to allow him to present evidence on the following specific topics: (i) the existence vel non of the written "talking points" that purportedly influenced Kenyetta McMillan's trial testimony; (ii) the contents of the blue duffel bag admitted into evidence as State's Exhibit 58; (iii) the existence vel non of the purported written confession by McMillan that Bryann Clark produced to Taylor's counsel for the first time in March 2012; and (iv) evidence of mitigating circumstances, such as Taylor's upbringing, family relationships, cognitive and functional impairments, mental illness and environmental/social background. (Doc. 38, at 9-19.)
Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts instructs the district court to "determine whether an evidentiary hearing is warranted." Id.
No hearing is warranted on any of the four grounds identified by Taylor's Motion for Evidentiary Hearing. First, as to the McMillan "talking points," the habeas claims to which that evidence relates (Claims II.A.i and II.B.i) are procedurally defaulted and petitioner has not shown cause and prejudice to excuse the default. Moreover, even if Taylor could prove the written "talking points" existed, they would not establish any reasonable likelihood that the outcome of the proceedings would have been different had those "talking points" been disclosed before trial. The differences in McMillan's allegedly "coached" and "uncoached" statements were too minor to make any meaningful difference; therefore, an evidentiary hearing on this topic would be unhelpful. Second, as to the contents of the blue duffel bag, the habeas claims to which that evidence relates (Claims II.C and III.B.ii.a) are likewise procedurally defaulted, and Taylor has not shown cause and prejudice. For that reason, it is unnecessary to resolve any factual disputes as to what the duffel bag did or did not contain at the time of Taylor's trial in order to resolve the § 2254 Petition completely. Moreover, Taylor was not diligent in developing a record in state court as to the contents of the duffel bag. Third, as to the purported written "confession" by McMillan produced by Bryann Clark some 14 years after the fact, the habeas claim to which that evidence relates (Claim IX) is procedurally defaulted, and Taylor has not shown cause and prejudice. At any rate, the Court assumes that, if an evidentiary hearing were conducted on this issue, Clark's testimony would correspond to his statements in the affidavit dated March 27, 2012 and contained in the habeas record. (Vol. 44, R-98.) As discussed in section III.D.5 of this Order, such testimony would not lead to the granting of habeas relief on Claim IX even if that claim were not procedurally barred. As state courts have observed, Clark effectively destroyed his own credibility by telling multiple flip-flopping, mutually inconsistent stories. Clark's present version — that he received McMillan's written confession in 1998 and held onto it for 14 years without identifying its existence of furnishing it to anyone, despite cooperating with Taylor's attorneys throughout that time period — is so implausible on its face that it strains credulity. And nothing in that purported written confession would exonerate Taylor from guilt on four counts of capital murder or raise a reasonable likelihood that he would not have been sentenced to death for his role in the triple homicide at Steve Dyas Motors even if he did not pull the trigger. Accordingly, Taylor is not entitled to an evidentiary hearing to present evidence relating to Count IX.
Finally, Taylor seeks an evidentiary hearing to present mitigation evidence in support of various ineffective assistance claims presented at Claim III.C of the § 2254 Petition. As discussed in sections III.D.8 and IV.L of this Order, the overwhelming majority of the subclaims presented in Claim III.C are procedurally defaulted, and Taylor has not shown cause and prejudice to excuse the default. Taylor did not present evidence in support of these claims to the state courts because he was not diligent in developing that previously available factual record in Rule 32 proceedings; therefore, § 2254(e)(2) forecloses any evidentiary hearing on Claim III.C at this time unless the stringent requirements of § 2254(e)(2)(A) and (B) are satisfied, which Taylor has not done and cannot do. No evidentiary hearing is warranted to enable Taylor to present unspecified (and, by all appearances, weak or otherwise unremarkable) mitigation evidence that he could and should have developed before the state courts many years ago.
In light of the foregoing, Taylor's Motion for Evidentiary Hearing is
For all of the foregoing reasons, Jarrod Taylor's Amended Petition for Writ of Habeas Corpus by Prisoner in State Custody under Death Sentence (doc. 25) is
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts,
DONE and ORDERED.
Second, some explanation may be helpful for the Court's conclusion that Claim III.C.i (lack of mitigation investigation generally) is not exhausted. It is true that paragraphs 167 and 168 of the Corrected First Amended R32 Petition generally track the portions of Claim III.C.i alleging that trial counsel failed in their responsibility to obtain "complete and accurate information relevant to Mr. Taylor's medical history, educational history, employment and training history, family and social history, correctional history, and any religious or cultural influences." (Compare vol. 22, R-56 at ¶ 167 to doc. 25 at ¶ 270.) The problem is that the Rule 32 iteration of this claim gives no inkling as to what trial counsel would have discovered had they performed such a mitigation investigation, what they would have learned via such investigation that they did not know already and how such additional information might have affected the outcome of the penalty phase of Taylor's trial. Taylor simply never presented this information or these allegations to the state courts in an allowed Rule 32 petition. In the general/ cursory form in which Claim III.C.i was presented in the Corrected First Amended R32 Petition, the state courts had no factual basis for evaluating Strickland prejudice. Petitioner failed to present this claim to the state courts in the manner required by the fair presentment doctrine by failing to furnish them with any factual predicate that might indicate prejudice under Strickland. See, e.g., Gray v. Netherland, 518 U.S. 152, 163, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996) ("for purposes of exhausting state remedies, a claim for relief in habeas corpus must include . . . a statement of the facts that entitle the petitioner to relief"); French v. Warden, Wilcox State Prison, 790 F.3d 1259, 1270-71 (11
Third, Taylor generically argues in his § 2254 reply brief that the various subclaims presented in Claim III.C that were never submitted to Alabama courts on post-conviction review "merely provide additional factual support" for the claims set forth in his Corrected First Amended R32 Petition. (Doc. 43, at 28-29.) The Court cannot agree. Again, it is black-letter law that a state petitioner must "fairly present federal claims to the state courts in order to give the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Raleigh v. Secretary, Florida Dep't of Corrections, 827 F.3d 938, 956 (11
Fourth, Taylor insists in his § 2254 reply that subclaims III.C.ii.c.ii (difficulties of life in Prichard), II.C.ii.c.iii (Taylor's mother's difficult childhood), and II.C.ii.iv (Taylor's father's drinking problem and large number of children) were exhausted. (Doc. 43, at 37-38.) Taylor's argument is that the vague references to "family and social history" and "cultural influences" in his Corrected First Amended R32 Petition were sufficient to exhaust Claims III.C.ii.c.ii, III.C.ii.c.iii, and III.C.ii.c.iv. (Id. at 38.) Based on the foregoing authorities and fundamental principles of the fair presentment doctrine, the Court finds this argument unpersuasive and concludes that those specific subclaims were not exhausted because Taylor never gave the Alabama courts a fair opportunity to pass on them in his Corrected First Amended R32 Petition. Name-checking buzzwords and catchphrases in their most vanilla and generic form, devoid of any factual predicate, does not suffice to constitute exhaustion. See, e.g., French, 790 F.3d at 1270-71 ("Oblique references which hint that a theory may be lurking in the woodwork will not turn the trick.").
Moreover, obscured by petitioner's labyrinthine presentation of Claim III.C is the inescapable fact that the additional mitigation evidence Taylor says trial counsel should have offered was weak, speculative, cumulative or inconsistent with the mitigation case counsel developed and presented on Taylor's behalf. Several examples illustrate the point. First, as to Taylor's childhood, evidence that he was raised in a poor household by a single mother in a rough neighborhood is neither remarkable nor helpful, particularly when his siblings (such as his brother Jeffrey, an Army veteran and South Carolina police officer) had grown up in the same environment and thrived as productive, law-abiding citizens. See, e.g., Lee v. Commissioner, Alabama Dep't of Corrections, 726 F.3d 1172, 1194 (11
Despite representing Taylor for well over a decade, with access to large-firm investigative resources, habeas counsel have been able to develop only meager additional mitigation evidence. This showing supports neither a claim of Strickland deficient performance nor Strickland prejudice. And again, "the fact that the jury recommended life imprisonment counsels against a determination that [Taylor] was prejudiced under Strickland." Lee, 726 F.3d at 1196. In sum, even taking all the alleged new mitigating evidence as true, and considering it with the evidence of mitigating and aggravating circumstances presented at trial, the undersigned concludes that Taylor has not shown a reasonable probability that the sentencing judge would have arrived at a different conclusion, as needed to show prejudice under Strickland. See Parker, 565 F.3d at 1285 ("To show prejudice, Parker must prove that there is a reasonable probability that the sentencing judge would have arrived at a different conclusion after being presented with the additional evidence and reweighing the aggravating and mitigating circumstances."). Accordingly, no relief would be warranted on Claim III.C even if it were properly considered on the merits in its entirety.
