MEMORANDUM OPINION

R. DAVID PROCTOR, District Judge.

Petitioner Casey A. McWhorter has petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his 1994 capital murder conviction and death sentence in Alabama state court. McWhorter alleges that a variety of constitutional violations require reversal of his conviction and/or sentence. The parties have fully briefed McWhorter's claims. (Docs. 14, 20). After careful consideration of the record, the pleadings, and the applicable provisions of 28 U.S.C. § 2254, the court finds that McWhorter has not shown that he is due an evidentiary hearing, and he is not entitled to habeas relief. Accordingly, and for the reasons stated below, his petition for a writ of habeas corpus is due to be denied.

Table of Contents

I. PROCEDURAL HISTORY

In May 1993, McWhorter was indicted in the Marshall County Circuit Court on one count of capital murder for the shooting death of Edward Lee Williams. (Vol. 1, Tab 1 at 10).2 The indictment charged that McWhorter intentionally killed Mr. Williams by shooting him with a rifle during the course of a robbery, in violation of § 13A-5-40(a)(2). (Id.). McWhorter was represented at trial by Thomas E. Mitchell and James R. Berry. (Vol. 3, Tab 8 at 98-99).

The guilt phase of the trial began on March 17, 1994. (Vol. 6 at 706; Vol. 7, Tab 11 at 921). On March 22, 1994, the jury found McWhorter guilty as charged. (Vol. 11, Tab 20 at 1758). After a brief recess, the penalty phase of the trial began. (Id., Tab 21 at 1764). Later that day, the jury recommended by a vote of 10-2 that McWhorter be sentenced to death. (Vol. 1, Tab 1 at 9; Vol. 12, Tab 30 at 1852). At the May 13, 1994 sentencing hearing, the trial court followed the jury's recommendation and sentenced McWhorter to death. (Vol. 12, Tab 32 at 1872).

Mitchell and Berry continued to represent McWhorter on direct appeal. (Vol. 14, Tab 37). McWhorter raised a variety of issues on appeal, including claims that the trial court erred by (1) failing to instruct the jury on lesser included offenses, (2) excluding a venireperson from serving on the jury, (3) coercing the jury into returning a death sentence after the jury was deadlocked, and (4) directing prospective jurors to give a specific answer to a crucial voir dire question. (Id.).

The Alabama Court of Criminal Appeals affirmed McWhorter's conviction and sentence on August 27, 1999, and denied his application for rehearing on December 3, 1999. McWhorter v. State, 781 So.2d 257 (Ala. Crim. App. 1999). On August 11, 2000, the Alabama Supreme Court affirmed the judgment of the Alabama Court of Criminal Appeals. Ex parte McWhorter, 781 So.2d 330 (Ala. 2000). The United States Supreme Court denied McWhorter's petition for a writ of certiorari on April 16, 2001. McWhorter v. Alabama, 532 U.S. 976 (2001).

On April 11, 2002, McWhorter, through new counsel,3 timely filed a Rule 32 petition in the Marshall County Circuit Court. (Vol. 19, Tab 49). McWhorter filed an amended petition on February 28, 2005.4 (Vol. 21, Tab 56). On October 19, 2006, the trial court summarily dismissed a number of McWhorter's claims. (Vol. 36, Tab 80). On August 26-28, 2009, an evidentiary hearing was held on the remaining claims.5 (Vol. 25, Tab 66 — Vol. 29). On March 29, 2010, the trial court entered a final order denying McWhorter's Rule 32 petition. (Vol. 36, Tab 81).

McWhorter appealed the denial of his Rule 32 petition to the Alabama Court of Criminal Appeals. That court affirmed the trial court on September 30, 2011, and denied his application for rehearing on February 10, 2012. McWhorter v. State, 142 So.3d 1195 (Ala. Crim. App. 2011).6 On November 22, 2013, the Alabama Supreme Court denied McWhorter's petition for a writ of certiorari and affirmed the judgment. Id.

On November 25, 2013, McWhorter, through counsel,7 filed a § 2254 petition in this court. (Doc. 1). Respondent filed an answer and brief on February 10, 2014. (Docs. 14, 15). McWhorter filed a reply brief on April 11, 2014. (Doc. 20).

II. THE OFFENSE OF CONVICTION

In its opinion on direct appeal, the Alabama Court of Criminal Appeals quoted the trial court's sentencing order setting out the facts of the crime:

McWhorter v. State, 781 So.2d 257, 265-66 (Ala. Crim. App. 1999).

III. THE SENTENCE

The following excerpts are taken from the written order of the sentencing court:

In regard to the aggravating circumstances the Court finds the following:

The defendant presented some evidence of mitigating circumstances at the sentencing phase of the trial. The Court has thoroughly and conscientiously considered all statutorily enumerated mitigating circumstances as well as any non-statutory mitigating circumstances which might reasonably appertain to this case.

In regard to mitigating circumstances, the Court finds the following:

(Vol. 2 at 388-94).

IV. THE SCOPE OF FEDERAL HABEAS REVIEW

"The habeas statute unambiguously provides that a federal court may issue the writ to a state prisoner `only on the ground that he is in custody in violation of the Constitution or law or treaties of the United States.'" Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (quoting 28 U.S.C. § 2254(a)). As such, this court's review of claims seeking habeas relief is limited to questions of federal constitutional and statutory law. Claims that turn solely upon state law principles fall outside the ambit of this court's authority to provide relief under § 2254. See Alston v. Department of Corrections, 610 F.3d 1318, 1326 (11th Cir. 2010) (holding that a claim addressing either "an alleged defect in a collateral proceeding," or a state court's "interpretation of its own law or rules," does not provide a basis for federal habeas relief) (citations omitted).

A. Exhaustion of State Court Remedies: The First Condition Precedent to Federal Habeas Review

A habeas petitioner is required to present his federal claims to the state court and to exhaust all of the procedures available in the state court system before seeking relief in federal court. 28 U.S.C. § 2254(b)(1); Medellin v. Dretke, 544 U.S. 660, 666 (2005) (holding that a petitioner "can seek federal habeas relief only on claims that have been exhausted in state court"). That requirement ensures that state courts are afforded the first opportunity to address federal questions affecting the validity of state court convictions and, if necessary, correct violations of a state prisoner's federal constitutional rights. As the Eleventh Circuit has explained:

Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) (first and third alterations and redactions in original) (footnote added).

B. The Procedural Default Doctrine: The Second Condition Precedent to Federal Habeas Review

1. General principles

It is well established that if a habeas petitioner fails to raise his federal claim in the state court system at the time and in the manner dictated by the state's procedural rules, the state court can decide the claim is not entitled to a review on the merits. Stated differently, "the petitioner will have procedurally defaulted on that claim." Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2009) (emphasis added). The so-called "procedural default" doctrine was explained by the Supreme Court in Woodford v. Ngo, 548 U.S. 81 (2006), as follows:

Woodford, 548 U.S. at 92-93.

Generally, if the last state court to examine a claim states clearly and explicitly that the claim is barred because the petitioner failed to follow state procedural rules, and that procedural bar provides an adequate and independent state ground for denying relief, then federal review of the claim also is precluded by federal procedural default principles. See Coleman v. Thompson, 501 U.S. 722, 731 (1991); Cone v. Bell, 556 U.S. 449, 465 (2009) ("[W]hen a petitioner fails to raise his federal claims in compliance with relevant state procedural rules, the state court's refusal to adjudicate the claim ordinarily qualifies as an independent and adequate state ground for denying federal review.").

Johnson v. Singletary, 938 F.2d 1166, 1173 (11th Cir. 1991) (emphasis added).9

Federal deference to a state court's clear finding of procedural default under its own rules is strong:

Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir. 1999) (alterations and emphasis in original).

The Supreme Court defines an "adequate and independent" state court decision as one that "`rests on a state law ground that is independent of the federal question and adequate to support the judgment.'" Lee v. Kemna, 534 U.S. 362, 375 (2002) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)) (emphasis in Lee). The questions of whether a state procedural rule is "independent" of the federal question and "adequate" to support the state court's judgment, so as to have a preclusive effect on federal review of the claim, "`is itself a federal question.'" Id. (quoting Douglas v. Alabama, 380 U.S. 415, 422 (1965)).

To be considered "independent" of the federal question, "the state court's decision must rest solidly on state law grounds, and may not be `intertwined with an interpretation of federal law.'" Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001) (quoting Card v. Dugger, 911 F.2d 1494, 1516 (11th Cir. 1990)). An example of intertwining would be when "the State has made application of the procedural bar depend on an antecedent ruling on federal law, that is, on the determination of whether federal constitutional error has been committed." Ake v. Oklahoma, 470 U.S. 68, 75 (1985). Stated differently, if "the state court must rule, either explicitly or implicitly, on the merits of the constitutional question" before applying the state's procedural rule to a federal constitutional question, then the rule is not independent of federal law. Id.

To be considered "adequate" to support the state court's judgment, the state procedural rule must be both "`firmly established and regularly followed.'" Lee v. Kemna, 534 U.S. at 375 (quoting James v. Kentucky, 466 U.S. 341, 348 (1984)). In other words, the rule must be "clear [and] closely hewn to" by the state for a federal court to consider it as adequate. James, 466 U.S. at 346. That does not mean that the state's procedural rule must be rigidly applied in every instance, or that occasional failure to do so will render the rule inadequate. "To the contrary, a [state's] discretionary [procedural] rule can be `firmly established' and `regularly followed' — even if the appropriate exercise of discretion may permit consideration of a federal claim in some cases but not others." Beard v. Kindler, 558 U.S. 52, 60-61 (2009). Rather, the adequacy requirement means only that the procedural rule "must not be applied in an arbitrary or unprecedented fashion." Judd, 250 F.3d at 1313 (emphasis added).

Thus, in summary, if the procedural rule is not firmly established, or if it is applied in an arbitrary, unprecedented, or manifestly unfair fashion, it will not be considered adequate, and the state court decision based upon such a rule can be reviewed by a federal court. Card, 911 F.2d at 1517. Conversely, if the rule is deemed adequate, the decision will not be reviewed by this court.

2. Overcoming procedural default

Generally, there are three circumstances in which an otherwise valid state-law ground will not bar a federal habeas court from considering a constitutional claim that was procedurally defaulted in state court: (1) where the petitioner demonstrates that he had good "cause" for not following the state procedural rule, and, that he was actually "prejudiced" by the alleged constitutional violation; or (2) where the state procedural rule was not "firmly established and regularly followed"; or (3) where failure to consider the petitioner's claims will result in a "fundamental miscarriage of justice." See Edwards v. Carpenter, 529 U.S. 446, 455 (2000) (Breyer, J., concurring); see, e.g., Coleman, 501 U.S. at 749-50 (holding that a state procedural default "will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice") (citations and internal quotation marks omitted); Murray v. Carrier, 477 U.S. 478, 496 (1986) ("[W]here a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default."); Smith v. Murray, 477 U.S. 527, 537 (1986) (same); Davis v. Terry, 465 F.3d 1249, 1252 n.4 (11th Cir. 2006) ("It would be considered a fundamental miscarriage of justice if `a constitutional violation has probably resulted in the conviction of one who is actually innocent.'") (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995) (in turn quoting Murray, 477 U.S. at 496)).

a. The "cause and prejudice" standard

"A federal court may still address the merits of a procedurally defaulted claim if the petitioner can show cause for the default and actual prejudice resulting from the alleged constitutional violation." Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010) (citing Wainwright v. Sykes, 433 U.S. 72, 84-85 (1977)) (emphasis added). This so-called "cause and prejudice" standard is clearly framed in the conjunctive; therefore, a petitioner must prove both parts.

i. "Cause"

To show "cause," a petitioner must prove that "some objective factor external to the defense impeded counsel's efforts" to raise the claim in the state courts. Carrier, 477 U.S. at 488; see also Amadeo v. Zant, 486 U.S. 214, 221-22 (1988).

McCleskey v. Zant, 499 U.S. 467, 493-94 (1991) (citations omitted) (first alteration in original, all other alterations added).

While "[a]ttorney error [on direct review] that constitutes ineffective assistance of counsel" has long been accepted as "cause" to overcome a procedural default, the constitutional ineffectiveness of post-conviction counsel on collateral review generally will not support a finding of cause and prejudice to overcome a procedural default. Coleman, 501 U.S. at 754. This is the case because "[t]here is no right to counsel in state post-conviction proceedings." Id. at 752 (citing Pennsylvania v. Finley, 481 U.S. 551 (1987); Murray v. Giarratano, 492 U.S. 1 (1989)).

Even so, in two recent landmark cases, the Supreme Court extended its prior decision in Coleman by deciding that, as a matter of equity, and, under specific, limited circumstances, errors by counsel on post-conviction collateral review could establish the necessary "cause" to overcome a procedurally defaulted claim. In the first such case, Maples v. Thomas, 565 U.S. 266 (2012), the Supreme Court found that post-conviction counsel's gross professional misconduct (e.g., abandonment of the petitioner) severed the agency relationship between counsel and the petitioner and, thus, established the necessary "cause" to overcome a procedural default. Id. at 281.

In the second case, Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court held that post-conviction counsel's failure to raise an ineffective assistance of trial counsel claim at an initial review collateral proceeding could serve as the necessary "cause" to overcome the procedural default of that type of claim when the state prohibits it from being raised during the direct review process. Id. at 11-12.

ii. "Prejudice"

In addition to proving the existence of "cause" for a procedural default, a habeas petitioner must show that he was actually "prejudiced" by the alleged constitutional violation. He must show "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis added); see also McCoy v. Newsome, 953 F.2d 1252, 1261 (11th Cir. 1992) (per curiam). If the "cause" is of the type described in Martinez v. Ryan, then the reviewing court should consider whether the petitioner can demonstrate "that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit." Martinez, 566 U.S. at 12-15 (citing for comparison Miller-El v. Cockrell, 537 U.S. 322 (2003) (describing standards for certificates of appealability to issue)).

b. The "fundamental miscarriage of justice" standard

In a "rare," "extraordinary," and "narrow class of cases," a federal court may consider a procedurally defaulted claim in the absence of a showing of "cause" for the default if either: (a) a fundamental miscarriage of justice "has probably resulted in the conviction of one who is actually innocent," Smith, 477 U.S. at 537-38 (quoting Carrier, 477 U.S. at 496); or (b) the petitioner shows "by clear and convincing evidence that[,] but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty." Schlup, 513 U.S. at 323-27 & n.44 (quoting Sawyer v. Whitley, 505 U.S. 333, 336 (1992)) (emphasis in Schlup); see also, e.g., Smith, 477 U.S. at 537-38.

C. The Statutory Overlay: The Effect of the Antiterrorism and Effective Death Penalty Act of 1996 on Habeas Review

The writ of habeas corpus "has historically been regarded as an extraordinary remedy." Brecht v. Abrahamson, 507 U.S. 619, 633 (1993). That is especially true when federal courts are asked to engage in habeas review of a state court conviction pursuant to 28 U.S.C. § 2254.

Id. (emphasis added) (quoting Barefoot v. Estelle, 463 U.S. 880, 887 (1983)). "Those few who are ultimately successful [in obtaining federal habeas relief] are persons whom society has grievously wronged and for whom belated liberation is little enough compensation." Fay v. Noia, 372 U.S. 391, 440-41 (1963).

"Accordingly, . . . an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment." Brecht, 507 U.S. at 634. That is due to the fact that, under the federal system of governments created by the United States Constitution,

Engle v. Isaac, 456 U.S. 107, 128 (1982).10

Congress legislated these principles in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which amended preexisting habeas law.11 Indeed, several provisions of AEDPA require federal courts to give even greater deference to state court determinations of federal constitutional claims than before.

1. 28 U.S.C. § 2254(e)(1)

Section 2254(e)(1) requires district courts to presume that a state court's factual determinations are correct, unless the habeas petitioner rebuts the presumption of correctness with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); see also, e.g., Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001) (observing that § 2254(e)(1) provides "a highly deferential standard of review for factual determinations made by a state court"). Section 2254(e)(1) "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002) (citing Williams v. Taylor, 529 U.S. 362, 403-04 (2000)).

The deference that attends state court findings of fact pursuant to Section 2254(e)(1) applies to all habeas claims, regardless of their procedural stance. Thus, a presumption of correctness must be afforded to a state court's factual findings, even when the habeas claim is being examined de novo. See Mansfield v. Secretary, Department of Corrections, 679 F.3d 1301, 1313 (11th Cir. 2012) (acknowledging the federal court's obligation to accept a state court's factual findings as correct, if unrebutted by clear and convincing evidence, and proceeding to conduct a de novo review of the habeas claim).

The presumption of correctness also applies to habeas claims that were adjudicated on the merits by the state court and, therefore, those claims are subject to the standards of review set out in 28 U.S.C. § 2254(d)(1) or (d)(2) discussed in the following section.

2. 28 U.S.C. § 2254(d)

"By its terms § 2254(d) bars relitigation of any claim `adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. 86, 98 (2011). It does not matter whether the state court decision contains a lengthy analysis of the claim, or is a summary ruling "unaccompanied by explanation." Id.

Further, the "backward-looking language" of the statute requires an examination of the state court decision on the date it was made. Cullen v. Pinholster, 563 U.S. 170 (2011). That is, "[s]tate court decisions are measured against [the Supreme] Court's precedents as of `the time the state court renders its decision.'" Id. at 182 (quoting Lockyer v. Andrade, 588 U.S. 63, 71-72 (2003)).

Finally, "review under § 2254(d)(1) [and (d)(2)] is limited to the record that was before the state court that adjudicated the claim on the merits." Id. at 181. Therefore, a federal habeas court conducting 2254(d) review should not consider new evidence "in the first instance effectively de novo." Id. at 182.

A closer look at the separate provisions of 28 U.S.C. § 2254(d)(1) and (d)(2) reveals that when a state court has made a decision on a petitioner's constitutional claim, habeas relief cannot be granted unless it is determined that the state court's adjudication of the claim either:

28 U.S.C. § 2254(d).12

The "contrary to" and "unreasonable application" clauses of § 2254(d) have been interpreted as "independent statutory modes of analysis." Alderman v. Terry, 468 F.3d 775, 791 (11th Cir. 2006) (citing Williams, 529 U.S. at 405-07).13 When considering a state court's adjudication of a petitioner's claim, therefore, the habeas court must not conflate the two modes of analysis.

a. The meaning of § 2254(d)(1)'s "contrary to" clause

A state court determination can be "contrary to" clearly established Supreme Court precedent in at least two ways:

Williams, 529 U.S. at 405. See also, e.g., Brown v. Payton, 544 U.S. 133, 141 (2005) (same); Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (same); Putman v. Head, 268 F.3d 1223, 1240-41 (11th Cir. 2001) (same).

As the Eleventh Circuit has noted, the majority opinion in Williams does not limit the construction of § 2254(d)(1)'s "contrary to" clause to the two examples set forth above.14 Instead, the statutory language "simply implies that `the state court's decision must be substantially different from the relevant precedent of [the Supreme] Court.'" Alderman, 468 F.3d at 791 (quoting Williams, 529 U.S. at 405).

b. The meaning of § 2254(d)(1)'s "unreasonable application" clause

A state court's determination of a federal constitutional claim can result in an "unreasonable application" of clearly established Supreme Court precedent in either of two ways:

Williams, 529 U.S. at 407. See also, e.g., Putman, 268 F.3d at 1240-41 (same).

It is important to note that "an unreasonable application of federal law is different from an incorrect application of federal law." Williams, 529 U.S. at 410 (emphasis in original). A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411 (emphasis added).

In other words, the question that should be asked is not whether the state court "correctly" applied Supreme Court precedent when deciding the federal constitutional issue, but whether the state court's determination was "unreasonable." Id. at 409 ("[A] federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable."). See also, e.g., Bell, 535 U.S. at 694 (observing that the "focus" of the inquiry into the reasonableness of a state court's determination of a federal constitutional issue "is on whether the state court's application of clearly established federal law is objectively unreasonable," and stating that "an unreasonable application is different from an incorrect one"); Harrington v. Richter, 562 U.S. 86, 100-103 (2011) (same).15

In order to demonstrate that a state court's application of clearly established federal law was "objectively unreasonable," the habeas petitioner "must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87. Stated another way, if the state-court's resolution of a claim is debatable among fairminded jurists, it is not objectively unreasonable.

"By its very language, [the phrase] `unreasonable application' refers to mixed questions of law and fact, when a state court has `unreasonably' applied clear Supreme Court precedent to the facts of a given case." Neelley v. Nagle, 138 F.3d 917, 924 (11th Cir. 1998) (citation and footnote omitted). Mixed questions of constitutional law and fact are those decisions "which require the application of a legal standard to the historical-fact determinations." Townsend v. Sain, 372 U.S. 293, 309 n.6 (1963).

c. The meaning of § 2254(d)(2)'s clause addressing an "unreasonable determination of the facts in light of the evidence presented in the state court proceeding"

Title 28 U.S.C. § 2254(d)(2) "imposes a `daunting standard — one that will be satisfied in relatively few cases.'" Cash v. Maxwell, 565 U.S. 1138, 132 S.Ct. 611, 612 (2012) (Sotomayor, J., respecting denial of certiorari) (quoting Maxwell v. Roe, 628 F.3d 486, 500 (9th Cir. 2010)). As the Supreme Court has noted,

Wood v. Allen, 558 U.S. 290, 301 (2010). Therefore, "even if `[r]easonable minds reviewing the record might disagree' about the finding in question, `on habeas review that does not suffice to supersede the trial court's . . . determination." Id. (quoting Rice v. Collins, 546 U.S. 333, 341-42 (2006)) (alteration in original). Conversely, "when a state court's adjudication of a habeas claim result[s] in a decision that [i]s based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, this Court is not bound to defer to unreasonably-found facts or to the legal conclusions that flow from them." Adkins v. Warden, Holman Correctional Facility, 710 F.3d 1241, 1249 (11th Cir. 2013) (quoting Jones v. Walker, 540 F.3d 1277, 1288 n.5 (11th Cir. 2008) (en banc) (alterations in original).

d. Evaluating state court factual determinations under 28 U.S.C. §§ 2254(d)(2) and (e)(1)

As set out previously, 28 U.S.C. § 2254(d)(2) regulates federal court review of state court findings of fact. That provision limits the availability of federal habeas relief on any claims by a state prisoner that are grounded in a state court's factual findings, unless the state court's findings were "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2).

Moreover, it must be remembered that 28 U.S.C. § 2254(e)(1) provides that factual determinations made by a state court are "presumed to be correct," and that the habeas petitioner bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." See 28 U.S.C. § 2254(e)(1); Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010) (holding that the presumption of correctness attending a state court's findings of fact can be overcome only by clear and convincing evidence).

Nevertheless, there is Eleventh Circuit authority which indicates that the manner in which subsections 2254(d)(2) and(e)(1) relate to one another remains an open question. See Cave v. Secretary for Department of Corrections, 638 F.3d 739, 744-45 (11th Cir. 2011) ("`[N]o court has fully explored the interaction of § 2254(d)(2)'s `unreasonableness' standard and § 2254(e)(1)'s `clear and convincing evidence' standard.") (quoting Gore v. Secretary for Department of Corrections, 492 F.3d 1273, 1294 n.51 (11th Cir. 2007)).

Even so, the Eleventh Circuit's earlier opinion in Ward v. Hall clearly held that federal habeas courts "must presume the state court's factual findings to be correct unless the petitioner rebuts that presumption by clear and convincing evidence." Id. at 1177 (citing § 2254(e)(1); Parker v. Head, 244 F.3d 831, 835-36 (11th Cir. 2001)). That same opinion also observed that 28 U.S.C. § 2254(e)(1) "commands that for a writ to issue because the state court made an `unreasonable determination of the facts,' the petitioner must rebut `the presumption of correctness [of a state court's factual findings] by clear and convincing evidence.'" Ward, 592 F.3d at 1155 (alteration in original).

D. The Burden of Proof and Heightened Pleading Requirements for Habeas Petitions

Federal habeas "exists only to review errors of constitutional dimension." McFarland v. Scott, 512 U.S. 849, 856 (1994); see also 28 U.S.C. § 2254(a).16 Further, "[w]hen the process of direct review . . . comes to an end, a presumption of finality and legality attaches to the conviction and sentence." Barefoot v. Estelle, 463 U.S. 880, 887 (1983). Two consequences flow from those fundamental propositions.

First, the habeas petitioner bears the burden of overcoming the presumption of "legality" that attaches to the state court conviction and sentence, and of establishing a factual basis demonstrating that federal post-conviction relief should be granted. See, e.g., 28 U.S.C. §§ 2254(d) and (e)(1);17 Hill v. Linahan, 697 F.2d 1032, 1036 (11th Cir. 1983) ("The burden of proof in a habeas proceeding is always on the petitioner.") (citing Henson v. Estelle, 641 F.2d 250, 253 (5th Cir. 1981)).

Second, the habeas petitioner must meet "heightened pleading requirements." McFarland v. Scott, 512 U.S. 849, 856 (1994); Borden v Allen, 646 F.3d 785, 810 (11th Cir. 2011) (holding that Section 2254 requires "fact pleading," and not merely "notice pleading"). The mere assertion of a ground for relief, without sufficient factual detail, does not satisfy either the petitioner's burden of proof under 28 U.S.C. § 2254(e)(1), or the requirements of Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts, which requires a state prisoner to "specify all the grounds for relief available to the petitioner," and to then "state the facts supporting each ground." Rule 2(c)(1) and (2), Rules Governing Section 2254 Cases in the United States District Courts. See also 28 U.S.C. § 2242 (stating that an application for writ of habeas corpus "shall allege the facts concerning the applicant's commitment or detention").

In short, a habeas petitioner must include in his statement of each claim sufficient supporting facts to justify a decision for the petitioner if the alleged facts are proven true. See, e.g., Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) (observing that a habeas petition must "state facts that point to a `real possibility of constitutional error'") (quoting Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts). Cf. Diaz v. United States, 930 F.2d 832, 835 (11th Cir. 1991) (holding in a case premised upon 28 U.S.C. § 2255 that, despite the liberal construction due a pro se petitioner's allegations, dismissal was appropriate because the movant did not allege "facts that, if proven, would entitle him to relief").18

In addition, "[c]itation of the controlling constitutional, statutory, or other bases for relief for each claim also should be stated." 1 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure § 11.6, at 654 (5th ed. 2005). As another district court has held:

Nail v. Slayton, 353 F.Supp. 1013, 1019 (W.D. Va. 1972).

E. Ineffective Assistance of Counsel Claims19

Federal ineffective assistance of counsel claims are specifically limited to the performance of attorneys who represented a state prisoner at trial, or on direct appeal from the conviction. See 28 U.S.C. § 2254(i) ("The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254."). See also Coleman v. Thompson, 501 U.S. 722, 752 (1991) ("There is no constitutional right to an attorney in state post-conviction proceedings. Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.").

The Supreme Court's "benchmark" standard for determining ineffective assistance is well established. The question is whether a trial or appellate attorney provided representational assistance to a state prisoner that was so professionally incompetent as to create issues of federal constitutional proportions. In other words, the court asks "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). If an objective answer to that question is "yes," then counsel was constitutionally ineffective. Strickland requires that the issue be approached in two steps:

Id. at 687 (emphasis added); see also, e.g., Williams, 529 U.S. at 390 (same); Grayson v. Thompson, 257 F.3d 1194, 1215 (11th Cir. 2001) (same).

Both parts of the Strickland standard must be satisfied: that is, a habeas petitioner bears the burden of proving, by "a preponderance of competent evidence," that (1) the performance of his trial or appellate attorney was deficient; and (2) that such deficient performance prejudiced his defense. Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc). Thus, a federal court is not required to address both parts of the Strickland standard when the habeas petitioner makes an insufficient showing on one of the prongs. See, e.g., Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) ("Because both parts of the test must be satisfied in order to show a violation of the Sixth Amendment, the court need not address the performance prong if the defendant cannot meet the prejudice prong, or vice versa.") (citation to Strickland omitted).

1. The performance prong

"The burden of persuasion is on the petitioner to prove by a preponderance of the evidence that counsel's performance was unreasonable." Stewart v. Secretary, Department of Corrections, 476 F.3d 1193, 1209 (11th Cir. 2007) (citing Chandler, 218 F.3d at 1313). To satisfy the performance prong of the Strickland test, a defendant must prove that counsel made errors so serious that he or she was not functioning as the counsel guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. The standard for gauging attorney performance is "reasonableness under prevailing professional norms." Id. at 688; see also, e.g., Williams, 529 U.S. at 390-91 (same); Darden v. Wainwright, 477 U.S. 168, 184 (1986) (same); Chandler, 218 F.3d at 1313 (same). "The test of reasonableness is not whether counsel could have done something more or different," but whether counsel's performance "fell within the broad range of reasonable assistance at trial." Stewart, 476 F.3d at 1209 (citing Chandler, 218 F.3d at 1313). Furthermore, courts must "recognize that `omissions are inevitable, but, the issue is not what is possible or `what is prudent or appropriate, but only what is constitutionally compelled.'" Id. (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)). The Sixth Amendment does not guarantee a defendant the very best counsel or the most skilled attorney, but only an attorney who performed reasonably well within the broad range of professional norms. "The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial." White v. Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992).

The reasonableness of counsel's performance is judged from the perspective of the attorney at the time of the alleged error and in light of all the circumstances. See, e.g., Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001) (giving lawyers "the benefit of the doubt for `heat of the battle' tactical decisions"); Mills v. Singletary, 161 F.3d 1273, 1285-86 (11th Cir. 1998) (noting that Strickland performance review is a "deferential review of all of the circumstances from the perspective of counsel at the time of the alleged errors").

Michael v. Crosby, 430 F.3d 1310, 1320 (11th Cir. 2005) (first alteration added, second alteration in original). Judicial scrutiny of counsel's performance must be "highly deferential," because representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another. See Strickland, 466 U.S. at 697. Indeed, reviewing courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689.

Strickland, 466 U.S. at 689 (emphasis added) (citations and internal quotation marks omitted); see also, e.g., Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994) ("When reviewing whether an attorney is ineffective, courts should always presume strongly that counsel's performance was reasonable and adequate.") (internal quotation marks omitted).

"Based on this strong presumption of competent assistance, the petitioner's burden of persuasion is a heavy one: `petitioner must establish that no competent counsel would have taken the action that his counsel did take.'" Stewart, 476 F.3d at 1209 (quoting Chandler, 218 F.3d at 1315) (emphasis added). "Even if many reasonable lawyers would not have done as defense counsel did at trial, no relief can be granted on ineffectiveness grounds unless it is shown that no reasonable lawyer, in the circumstances, would have done so." Rogers, 13 F.3d at 386 (emphasis added).

2. The prejudice prong

"A petitioner's burden of establishing that his lawyer's deficient performance prejudiced his case is also high." Van Poyck v. Florida Department of Corrections, 290 F.3d 1318, 1322 (11th Cir. 2002). See also, e.g., Gilreath v. Head, 234 F.3d 547, 551 (11th Cir. 2000) (holding that a habeas petitioner "must affirmatively prove prejudice, because `[a]ttorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial'") (quoting Strickland, 466 U.S. at 693) (alteration in original). "It is not enough for the [habeas petitioner] to show that the errors had some conceivable effect on the outcome of the proceeding." Strickland, 466 U.S. at 693; see also Harrington, 562 U.S. at 111-112 ("The likelihood of a different result must be substantial, not just conceivable.") (emphasis added) (citing Strickland, 466 U.S. at 693).

Instead, to prove prejudice, the habeas petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; see also Williams, 529 U.S. at 391 (same). When that standard is applied in the context of the death sentence itself, "`the question is whether there is a reasonable probability that, absent the errors, the sentencer [i.e., in Alabama, the trial court judge] . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.'" Stewart, 476 F.3d at 1209 (quoting Strickland, 466 U.S. at 695).

That is a high standard, and in order to satisfy it a petitioner must present competent evidence proving "that trial counsel's deficient performance deprived him of `a trial whose result is reliable.'" Brown v. Jones, 255 F.3d 1272, 1278 (11th Cir. 2001) (quoting Strickland, 466 U.S. at 687). In other words, "[a] finding of prejudice requires proof of unprofessional errors so egregious that the trial was rendered unfair and the verdict rendered suspect." Johnson, 256 F.3d at 1177 (quoting Eddmonds v. Peters, 93 F.3d 1307, 1313 (7th Cir. 1996) (in turn quoting Kimmelman v. Morrison, 477 U.S. 365, 374 (1986))) (internal quotation marks omitted).

3. Deference accorded state court findings of historical fact and decisions on the merits when evaluating ineffective assistance of counsel claims

State court findings of historical fact made in the course of evaluating a claim of ineffective assistance of counsel are subject to a presumption of correctness under 28 U.S.C. § 2254(d)(2) and (e)(1). See, e.g., Thompson v. Haley, 255 F.3d 1292, 1297 (11th Cir. 2001). To overcome a state-court finding of fact, the petitioner bears the burden of proving contrary facts by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

Additionally, under AEDPA, a federal habeas court may grant relief on a claim of ineffective assistance of counsel only if the state-court determination involved an "unreasonable application" of the Strickland standard to the facts of the case. Strickland itself, of course, also requires an assessment of whether counsel's conduct was professionally unreasonable. Those two assessments cannot be conflated into one. See Harrington, 562 U.S. at 101-02. Thus, habeas relief on a claim of ineffective assistance of counsel can be granted with respect to a claim actually decided by the state courts only if the habeas court determines that it was "objectively unreasonable" for the state courts to find that counsel's conduct was not "professionally unreasonable." As the Harrington Court explained:

Harrington, 562 U.S. at 105; see also Premo v. Moore, 562 U.S. 115, 121-23 (2011).

V. McWHORTER'S CLAIMS

McWhorter asserts a number of claims in his petition. The court addresses each of them below.

A. McWhorter's Claim That He Was Denied the Right to an Impartial Jury Because a Juror Intentionally Hid Critical Facts During Voir Dire

During voir dire, defense counsel presented the potential jurors with a questionnaire. In question 21, the veniremembers were asked: "Have you or any member of your family or anyone you know ever been the victim of a crime?" (Doc. 1 at 11). Anyone answering "yes" to that question was directed to identify the type of crime, their relationship to the victim, and whether there was an arrest or conviction. (Id.). Juror Linda Burns answered "no" to question 21. (Id.). The defense later learned that Ms. Burns' father had drowned when she was a child, and there was some confusion as to whether it was an accident or the result of a crime. (Id. at 12-15).

1. The Parties' Arguments

McWhorter alleges that Juror Burns intentionally hid critical facts from the defense during voir dire, violating his right to a fair trial by a panel of "indifferent jurors," in violation of Irvin v. Dowd, 366 U.S. 717, 722 (1961) and McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984). (Vol. 1 at 10-26). McWhorter unsuccessfully raised this claim in his Rule 32 petition and on appeal from the denial of his Rule 32 petition. The Rule 32 court denied the claim after conducting an evidentiary hearing at which Juror Burns testified extensively. (Vol. 25, Tab 60 at 40-90; Vol. 26 at 110-26).

Respondent counters that McWhorter is not entitled to relief because, in addressing this claim on appeal from the denial of his Rule 32 petition, the Alabama Court of Criminal Appeals properly applied clearly established federal law and denied the claim. (Doc. 14 at 11-15).

2. Analysis

McWhorter argues that the decision of the Alabama Court of Criminal Appeals was contrary to and involved an unreasonable application of Irvin v. Dowd, 366 U.S. 717, 722 (1961) and McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984). In Irvin, the Court held that "[i]n essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, `indifferent' jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process." 366 U.S. 717, 722 (citing In re Oliver, 333 U.S. 257 (1948) and Tumey v. State of Ohio, 273 U.S. 510 (1927)).

In McDonough, the Court concluded that "[v]oir dire examination serves to protect that right by exposing possible biases, both known and unknown, on the part of potential jurors." 464 U.S. at 554. "[T]o obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause." Id. at 556.

The first prong requires a determination of whether the juror answered honestly, "that is, whether he was aware of the fact that his answers were false." United States v. Perkins, 748 F.2d 1519, 1531 (11th Cir.1984). The second prong — whether a correct response would have provided a valid basis for a cause challenge — requires the party seeking a new trial because of a juror's nondisclosure during voir dire to show actual bias. Id. at 1532.

During the Rule 32 evidentiary hearing, Juror Burns testified extensively about the death of her father:

McWhorter, 142 So.3d 1195, 1214-17 (2011).

The circuit judge who heard her testimony found that:

Id. at 1218.

The Alabama Court of Appeals gave "great weight" to the trial court's credibility determination, concluding that McWhorter failed to prove that Juror Burns intentionally failed to answer question 21 honestly:

Id. at 1218-19.

The circuit judge also found that McWhorter failed to establish that Juror Burns' answer to question 21 prejudiced him in any way:

Id. at 1220-22.

The Alabama Court of Criminal Appeals likewise found McWhorter was not prejudiced by Juror Burns' answer to question 21:

Id. at 1221.

The appellate court's findings — that McWhorter failed to prove that Juror Burns intentionally gave an answer she knew to be false, and failed to prove that Ms. Burns' answer prejudiced him in any way — are consistent with both Irvin and McDonough. McWhorter has not shown that the decision of the Alabama Court of Criminal Appeals was contrary to, or an unreasonable application of either case.

McWhorter also argues that the trial court's "virtually verbatim" adoption of the state's proposed order denying his Rule 32 petition was unreasonable. (Doc. 1 at 21). He points out that "[s]uch adoption has been criticized by the U.S. Supreme Court. See Anderson v. Bessemer City, 470 U.S. 564, 572 (1985)." (Doc. 1 at 21). He maintains that "[t]he consequence of the Court's verbatim adoption of the State's proposed order is most evident in the fact that the Court's opinion (like the State's proposed order) made no mention of the testimony cited above by Juror L.B. and Juror Stonecypher concerning the statements made by Juror L.B. to her fellow jurors during penalty-phase deliberations." (Id.).

When McWhorter presented this claim on appeal from the denial of his Rule 32 petition, the Alabama Court of Criminal Appeals denied it:

McWhorter, 142 So. 3d at 1224-29.

Although in Anderson v. City of Bessemer, 470 U.S. at 572, the Supreme Court criticized the trial court's verbatim adoption of findings of fact prepared by prevailing parties, it ultimately held "that even when the trial judge adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous." Anderson, 470 U.S. at 572. In reviewing McWhorter's claim on appeal from the denial of his Rule 32 petition, the Alabama Court of Criminal Appeals noted that McWhorter claimed in a "two-sentence argument," that "it was apparent that [the circuit court] adopted the State's proposed findings of fact, almost verbatim . . . only five phrases differed in any way from the State's proposed order." McWhorter, 142 So. 3d at 1224-25 (quoting McWhorter's appellate brief, Vol. 33, Tab 71 at 18). The court specifically found that "the circuit court's order is its own and not merely an unexamined adoption of a proposed order submitted by the State," and that the circuit court's findings were not "clearly erroneous." Id. at 1229.

McWhorter has failed to demonstrate that the appellate court's holding on this claim (that the Rule 32 court's findings of fact were not "clearly erroneous"), as it was presented in the state courts, is contrary to or an unreasonable determination of clearly established Federal law, or that it was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

McWhorter further argues that by ignoring this evidence, the Rule 32 hearing court failed to fulfill its obligation to make independent findings and conclusions, as required by Jefferson v. Upton, 560 U.S. 284 (2010). In Jefferson, the Court applied the pre-AEDPA version of § 2254, holding that the state court had denied the death-penalty petitioner a full, fair, and adequate hearing, because: (1) the state court had adopted factual findings drafted exclusively by the state's attorneys, pursuant to an ex parte request from the state court judge; (2) the state court did not notify the petitioner of the request made to opposing counsel; and (3) the findings proposed by the state recounted evidence from a non-existent witness. See 560 U.S. at 292. But McWhorter's case is both legally and factually distinguishable from Jefferson.

In rejecting a similar claim in Jones v. GDCP Warden, the Eleventh Circuit held:

Jones, 815 F.3d 689, 715 (11th Cir. 2016). Simply put, Jones concluded that the legal analysis in Jefferson does not apply to the post-AEDPA version of § 2254.

This case is also factually distinct from Jefferson. See Jones, 815 F. 3d at 715 (declining to apply Jefferson because "the facts of this case are critically different from Jefferson"). Specifically, in this case, as in Jones, the Rule 32 court requested that both McWhorter and the state submit briefs or proposed opinions after receiving transcripts of the evidentiary hearing. (Vol. 29 at 726-27; Vol. 32, Tab 70 at 116). Similarly, the Rule 32 court conducted an evidentiary hearing on McWhorter's petition on August 26-28, 2009. (Vol. 25, Tab 66 — Vol. 29). At that hearing, McWhorter was represented by counsel, who presented sixteen witnesses and a variety of exhibits. (Vol. 25, Tab 66 — Vol. 32). McWhorter submitted his memorandum of law to the court on December 2, 2009. (Vol. 32, Tab 70 at 117-193).

On February 23, 2010, the state submitted its proposed final order denying McWhorter's petition. (Vol. 24, Tab 65 at 1037-1114). The Rule 32 court issued its order denying the petition on March 29, 2010. (Vol. 24, Tab 65 at 1115-91). Thus, like the petitioner in Jones, and in contrast to the petitioner in Jefferson, the circumstances here demonstrate that McWhorter received a full and fair hearing on his petition. The Jefferson decision does not entitle McWhorter to relief.

B. McWhorter's Claim That He Was Sentenced to Death Based on Extraneous Evidence

1. The Parties' Arguments

McWhorter next claims that juror Linda Burns "infected all the other jurors with her obvious bias against what she perceived to be a convicted killer getting too light a sentence." (Doc. 1 at 28). More specifically, he contends that:

(Id.). He argues that this "extraneous evidence improperly introduced into the jury room actually and severely prejudiced" him, because immediately after she shared her story, several jurors changed their votes, resulting in the recommended death sentence. (Id. at 29). According to McWhorter, Juror Burns' remarks during deliberations, about her father's death, deprived him of his rights to due process, confrontation, a fair trial, and an impartial jury, in violation of Turner v. Louisiana, 379 U.S. 466 (1965). (Doc. 1 at 27-29).

Respondent first argues that this claim is procedurally defaulted because McWhorter failed to "fairly present" it to the Alabama Court of Criminal Appeals on appeal from denial of his Rule 32 petition. (Doc. 14 at 15-17). Specifically, Respondent maintains that "[a] review of McWhorter's merits brief to the Alabama Court of Criminal Appeals will reflect that he relied on state law and that he cited neither federal cases nor the Constitution of the United States in support of his argument. (Vol. 33, Tab # R-71, pp. 38-41)." (Doc. 14 at 15-16).

In his brief to the Alabama Court of Criminal Appeals, McWhorter argued the hearing court improperly dismissed his extraneous evidence claim without a hearing:

(Vol. 33, Tab 71 at 38). In light of this language, it is at least arguable that McWhorter's allegation that his "federal and state constitutional rights were violated because the jury considered extraneous evidence during its deliberations" was sufficient to "fairly present" this claim to the appellate court. Therefore, the court will consider this claim on the merits.

Respondent alternatively argues that McWhorter is not entitled to relief because the Alabama Court of Criminal Appeals correctly denied the claim on the merits. (Doc. 14 at 17). In addressing this claim, the appellate court held:

McWhorter v. State, 142 So.3d 1195, 1221-24 (Ala. Crim. App. 2011) (footnotes omitted) (alterations in original).

2. Analysis

McWhorter argues that the appellate court's decision was contrary to and an unreasonable application of Turner v. Louisiana, 379 U.S. 466 (1965). (Doc. 1 at 27, 29). He claims that the decision was "contrary to federal law because the State court drew the `extraneous evidence' line based on where the statements were made, rather than on the nature of the statements and thus held the statements were `therefore . . . insulated from inquiry.'" (Doc. 20 at 23) (quoting McWhorter, 142 So. 3d at 1223) (omission in original). He claims that the appellate court "unreasonably applied clearly established federal law by holding that Juror L.B.'s statements about her personal experiences did not qualify as `extraneous evidence.'" (Id.) (citing McWhorter, 142 So. 3d at 1222-23).

In Turner, the Court held that a jury must base its verdict only on evidence coming "from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel." 379 U.S. at 472-73. The Alabama Court of Criminal Appeals' discussion of the rule of evidence prohibiting a juror from testifying about the process of deliberation was grounded in the salient point that Juror Burns' comments to the jury were not "extraneous evidence" injected into the deliberations. Ms. Burns' comments about how she felt seeing the man possibly involved with her father's death walking the streets after being released from jail were part of the deliberative process itself, not something "extraneous" to the jury's deliberations. As such, the appellate court correctly concluded that the evidence offered on this issue was nothing more than prohibited juror testimony about the debate and deliberations of the jury.

The Alabama Court of Criminal Appeals' determination that Juror Burns's comments during the jury's deliberations were not "extraneous evidence" was neither contrary to nor an unreasonable application of Turner.

C. McWhorter's Claim That He Was Denied His Constitutional Right to Effective Assistance of Counsel

In introducing this claim, McWhorter has made clear that he "asserts a single ineffective assistance of counsel claim and does not present multiple, separate claims." (Doc. 1 at 30). He argues that he "should be permitted to prove each of the alleged facts as part of the overall ineffective assistance claim" because when considered together, they "easily satisfy the ineffectiveness standard." (Id.).

McWhorter made this same argument on appeal from the denial of his Rule 32 petition. (Vol. 33, Tab 71 at 41-44). After initially questioning whether the argument was properly before it,20 the court denied the claim on the merits:

McWhorter, 142 So. 3d at 1235.

McWhorter does not allege that the appellate court's decision was contrary to or an unreasonable application of clearly established federal law. However, as the Eleventh Circuit Court of Appeals has recognized, where individual claims of error or prejudice are without merit, a cumulative error claim must fail because "we have nothing to accumulate." Morris v. Sec'y, Dep't. of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012). Thus, the court must address McWhorter's ineffective assistance of counsel claims individually to see if they present any constitutionally deficient performance.

1. Inadequate Investigation and Failure to Present Mitigating Evidence

In the penalty phase of McWhorter's trial, counsel called four witnesses to testify on McWhorter's behalf: Vonnie Salee, Van Reid, Elsie Garrison, and Carolyn Rowland. Vonnie Salee testified that she had worked at Food World when McWhorter was a bag boy there. (Vol. 11, Tab 25 at 1772). She testified that he was a hard worker, while many of the other "kids goofed off"; he was nice to the customers; she felt like she was a mother figure to McWhorter; and that the "whole store was in absolute shock" when McWhorter was charged with murder. (Id. at 1772-76).

Van Reid, the owner of Reid's Restaurant, testified that McWhorter worked for him as a busboy for "a month or so." (Id. at 1776-77). He described McWhorter as a dependable worker who did a good job. (Id. at 1777-78).

McWhorter's aunt, Elsie Garrison, asked the jury to spare his life. (Id. at 1786). She testified that McWhorter's parents divorced when he was almost two years old. (Id. at 1780). After the divorce, McWhorter's mother remarried and she, her new husband, and McWhorter moved out of state for four to five years. (Id.). Garrison had no contact with McWhorter while he was living out of state, but she had regular contact with him after he returned to Alabama. (Id. at 1780-81). McWhorter came to live with her when he was almost sixteen years old because he was unhappy, unsure what he wanted to do with his life, and felt like he was not being treated fairly at home. (Id. at 1781). Garrison took McWhorter for a drug test after he was accused of using drugs in school, and the results were negative for drugs. (Id. at 1782). McWhorter began to miss his mother while he was living with Garrison, so he returned home in December 1992. (Id. at 1782-83). During that December, McWhorter became "antsie" because it was Christmas time and he was still a child at heart. (Id. at 1783). A few months after McWhorter moved out of Garrison's house, Daniel Miner, McWhorter's codefendant, apparently followed McWhorter to her house. (Id. at 1783-85). Garrison ended her testimony by telling the jury that McWhorter had a "very disturbed childhood," but is a "very bright, a very intelligent young man" who had a lot of tough breaks; that McWhorter got involved with the wrong people but is not a "bad boy at heart"; and that McWhorter is one of the most compassionate young men she has ever known. (Id. at 1785-86).

Finally, McWhorter's mother, Carolyn Rowland, also asked the jury to spare McWhorter's life. (Id. at 1794). She testified that her divorce from McWhorter's father was not particularly bitter or troublesome; she married David Rowland after the divorce; they moved to Tennessee for four or five years; McWhorter and Rowland had a "pretty good relationship" at the time, but McWhorter was not aware that Rowland was not his birth father until they moved back to Alabama; the discovery that Tommy McWhorter was his birth father did not seem to affect McWhorter at the time, but McWhorter hardly ever saw Tommy McWhorter; Tommy McWhorter told McWhorter that he did not have to listen to his stepfather, which caused problems for McWhorter; McWhorter was a "pretty good kid" until he became friends with Daniel Miner, Marcus Carter, and Lee Williams; when McWhorter got to know Miner, Carter, and Williams, he "got worse" about listening to his parents, and no longer cared about his appearance; and McWhorter is a good boy who respects people, but got in with the wrong friends. (Id. at 1788-97).

a. The Parties' Arguments

McWhorter alleges that trial counsel were constitutionally ineffective for failing to uncover crucial mitigating evidence concerning his life, character, and mental health. (Doc. 1 at 34-45). Specifically, he claims that:

(Doc. 1 at 34-36) (footnote omitted).

McWhorter maintains that counsel could have uncovered and presented an array of evidence that would have "deepened and sharpened trial counsel's theory of the case so that the jury could not simply disregard it." (Id. at 31). He claims that the evidence counsel should have discovered and presented at trial would have established that:

(Doc. 1 at 38-41) (footnotes in original omitted).

McWhorter further argues that counsel could have called expert witnesses in the penalty phase, who would have testified to evidence collected from McWhorter's family; he was genetically predisposed to substance abuse, given the alcoholism of his father and grandfather and the early onset of his own substance abuse; the same "mental condition" that predisposed McWhorter to substance abuse also made it difficult for him to control his behavior; and he "likely" had brain damage as a result of substance abuse. (Id. at 41-42).

McWhorter also contends there is a reasonable probability that had trial counsel presented this information in the penalty phase, the jury would not have made the same recommendation. (Id. at 42).

Respondent counters that this claim is due to be denied because the Alabama Court of Criminal Appeals denied it on the merits, and McWhorter cannot show that the decision was contrary to, or an unreasonable application of, federal law. (Doc. 14 at 19-42).

b. Analysis

McWhorter raised his failure to investigate and present mitigating evidence claim in his Amended Rule 32 petition. (Vol. 21, Tab 56 at 521-49). The trial court held an evidentiary hearing from August 26-28, 2009, at which McWhorter presented sixteen witnesses who he claims should have been called by counsel at the penalty phase of his trial. (Vol. 25, Tab 66 — Vol. 9). The trial court entered a final order denying the petition on March 29, 2010. (Vol. 24, Tab 65 at 1139-91). The Alabama Court of Criminal Appeals affirmed the denial the claim. McWhorter, 142 So. 3d at 1229-50.

In denying this claim, the Alabama Court of Criminal Appeals set out the pertinent law:

McWhorter, 142 So. 3d at 1229-32.

The Alabama Court of Criminal Appeals also summarized trial counsel's actions:

Id. at 1233-34.

The Alabama Court of Criminal Appeals issued a detailed opinion denying McWhorter's failure-to-investigate claim:

McWhorter, 142 So. 3d at 1238-50.

McWhorter argues that the appellate court's adjudication of this claim was contrary to and an unreasonable application of Strickland. (Doc. 20 at 35-38). To establish a violation of Strickland, McWhorter must show that counsel's failure to present the additional mitigation evidence was unreasonable, and that but for counsel's failure to present this evidence, he would not have been sentenced to death. McWhorter has not met this burden.

The appellate court reviewed the actions taken by trial counsel in representing McWhorter. The court noted that counsel interviewed McWhorter, his mother, his aunt and is half-sister, all of whom were cooperative and supportive. Counsel gleaned much information from a "Client Background Information" form completed by McWhorter's family, covering a myriad of topics such as early childhood development, living conditions, medical issues as a child, relationship information, education history, medical and mental health history, substance abuse history, criminal history, and family history; hired a neuropsychologist to evaluate McWhorter for any mental disease or disorder, or any evidence of psychopathology, diminished capacity, susceptibility to influence by others, or brain damage; and obtained and considered a variety of records, including hospital records from McWhorter's attempted suicide. Trial counsel, experienced criminal attorneys, also were aware that McWhorter's IQ was 88 and that his mother had been reported to DHR for "whipping" him hard enough to leave bruises. Given the information uncovered in their investigation, and because McWhorter's codefendant had already pleaded guilty and the jury had already heard evidence of gang activity during the trial's guilt phase, counsel believed it would be an uphill battle to persuade the jury to spare McWhorter's life. As a result, counsel made a judgment call and formulated the strategy they believed was most likely to save McWhorter's life: to portray McWhorter as a good boy who fell in with the wrong crowd and made a terrible mistake, but did not deserve the death penalty. The state court determined that counsel's investigation and strategic choice aimed at saving McWhorter's life were reasonable, and thus concluded that McWhorter had not met the deficient performance prong of Strickland. The state court's determination was not unreasonable.

Similarly, McWhorter is unable to establish that counsel's failure to uncover and present additional evidence in the penalty phase prejudiced him under Strickland. McWhorter faults trial counsel for failing to introduce the following evidence: parental abuse and neglect; McWhorter's suicidal behavior, including playing Russian roulette; and McWhorter's significant drug usage, demonstrating that he was maladjusted and indicating that his behavioral problems might have resulted from a genetic predisposition. (Doc. 1 at 42-45). He argues there is a reasonable probability that had this evidence been presented, the jury would have recommended life imprisonment rather than death. That argument misses the mark.

As the appellate court correctly noted:

McWhorter, 142 So. 3d at 1250 (quoting Wiggins v. Smith, 539 U.S. 510, 534 (2003)).

After hearing all of the evidence that was not introduced in the guilt phase of his trial, the trial court found that the omitted evidence would not have outweighed the aggravating circumstance that McWhorter killed the victim while committing a robbery. The Alabama Court of Criminal Appeals reweighed that evidence and also concluded that, even if the additional evidence had been presented, it would have had no effect on the death sentence. Given the overwhelming evidence of McWhorter's guilt, the fact that the crime was pre-planned, and the fact that McWhorter and his codefendant waited in the victim's house for several hours, preparing silencers for the guns they intended to use to kill the victim when he returned home, it is not unreasonable to conclude that the additional evidence offered by McWhorter would not have resulted in a different sentence.

Thus, the appellate court's determinations that trial counsel were not deficient and that, in any event, McWhorter was not prejudiced by trial counsel's failure to present additional mitigating evidence, were neither contrary to nor an unreasonable application of Strickland.

2. Failure to Object to McWhorter's Being Transported to and from the Courtroom in Handcuffs

a. The Parties' Arguments

McWhorter next claims that throughout his trial, "authorities transported him to and from the courtroom in handcuffs . . . applying and removing McWhorter's handcuffs . . . in full view of the jury." (Doc. 1 at 45). He argues that this "undermined his presumption of innocence and likely impacted the jury's impression of him" and the "resulting shame and embarrassment likely endured, burdening his courtroom interactions with counsel and his emotional connection to the jury." (Id. at 45-46). He maintains that trial counsel were ineffective for failing to object to the routine shackling without a strategic reason. (Id. at 47).

In his amended Rule 32 petition, McWhorter alleged the following:

McWhorter, 142 So. 3d at 1261-62.

The Rule 32 judge stated the following in the final order denying McWhorter's amended petition:

McWhorter, 142 So. 3d at 1262-63. The Alabama Court of Criminal Appeals affirmed the dismissal of this claim. Id. at 1263-64.

Respondent argues that the Alabama Court of Criminal Appeals decision on this claim is not contrary to or an unreasonable application of Strickland. In dismissing this claim, the appellate court held:

McWhorter, 142 So. 3d at 1263-64.

b. Analysis

The Alabama Court of Criminal Appeals found that in presenting this claim McWhorter had not met the burden of pleading imposed by Rule 32.3 or the specificity requirements of Rule 32.6(b). Id. at 1263. The Eleventh Circuit has held that a Rule 32 dismissal for lack of specificity is a merits determination. Borden v. Allen, 646 F.3d 785, 812-13 (11th Cir. 2011). As such, this court must conduct a deferential AEDPA review of the state court's decision pursuant to 28 U.S.C. § 2254(d).

After review, the court concludes that the state appellate court's decision was neither contrary to nor an unreasonable application of Strickland. To prevail on a Strickland claim, McWhorter must show that counsel's performance was deficient and that he was prejudiced by the deficient performance. 466 U.S. at 687. To prove counsel's performance was deficient, McWhorter must establish that being transported to and from the courtroom in handcuffs violated his right to a fair trial. However, the "well established rule in this circuit is that a `brief and fortuitous encounter of the defendant in handcuffs is not prejudicial and requires an affirmative showing of prejudice by the defendant.' Wright v. Texas, 533 F.2d 185, 187 (5th Cir. 1976); United States v. Bankston, 424 F.2d 714 (5th Cir. 1970); Hardin v. United States, 324 F.2d 553 (5th Cir. 1963)." Allen v. Montgomery, 728 F.2d 1409, 1414 (11th Cir. 1984).

McWhorter failed to establish that he was prejudiced by being handcuffed while transported to and from the courtroom. Thus, counsel were not deficient for failing to object to the handcuffs. Furthermore, even assuming McWhorter could establish deficient performance by showing that counsel's failure to object to McWhorter being transported in handcuffs was objectively unreasonable (and, to be clear, he has not made that showing), he has not shown prejudice, i.e., that the result of the trial would have been different if counsel had made such an objection. Thus, McWhorter is not entitled to relief on this claim.

3. Failure to Object to the Trial Court's Preparation of a Sentencing Order Prior to the Sentencing Hearing

Immediately after the May 13, 1994 sentencing hearing, the trial judge informed McWhorter that he was not going to postpone sentencing him, but would do it "at this time." (Vol. 12, Tab 31 at 1871). The judge stated: "I have prepared and will file a complete order making numerous findings that I incorporate herein into this sentencing." (Id.). He then sentenced McWhorter to death. (Id. at 1872). The trial judge signed the sentencing order the same day. (Vol. 36, Tab 76).

a. The Parties' Arguments

McWhorter claims that counsel were ineffective for failing to object to the "trial judge's failure to consider [his] sentencing arguments by drafting his opinion prior to the sentencing hearing." (Doc. 1 at 48).

McWhorter unsuccessfully raised this claim in his Rule 32 petition. (Vol. 21, Tab 56 at 512). The trial court denied the claim in its final order denying McWhorter's Rule 32 petition:

(Vol. 24, Tab 65 at 1150-51). McWhorter did not appeal the denial of this claim to the Alabama Court of Criminal Appeals. (See Vol. 33, Tab 71 at 1-89).

Respondent argues that because McWhorter did not raise this claim on appeal from the denial of his Rule 32 petition, it is unexhausted and, therefore, procedurally barred from review in this court. (Doc. 14 at 45-46).

b. Analysis

First, and as an initial matter, this court finds McWhorter has failed to satisfy the requirement that a petitioner exhaust his federal claims in state court before presenting them in a federal habeas petition. See 28 U.S.C. § 2254(b)(1)(A). To properly exhaust this claim, McWhorter was required to "give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In Alabama, a complete round of the established appellate review process includes an appeal to the Alabama Court of Criminal Appeals, an application for rehearing to that court, and a petition for a writ of certiorari in the Alabama Supreme Court. See Smith v. Jones, 256 F.3d 1135, 1140-41 (11th Cir. 2001); Pruitt v. Jones, 348 F.3d 1355, 1359 (11th Cir. 2003) (applying the exhaustion requirement to state post-conviction proceedings as well as direct appeals).

After the trial court denied this claim, McWhorter was required to present the claim to the Alabama Court of Criminal Appeals, but he did not. A claim that was not presented to the state court and can no longer be litigated under state procedural rules is procedurally barred from federal review. See Boerckel, 526 U.S. at 839-40, 848; Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). Alabama law does not allow successive collateral petitions and provides a one-year limitations period for filing such petitions. See Ala. R. Crim. P. 32.2(b) and (c). Because McWhorter cannot return to state court to file an untimely appeal from the denial of his Rule 32 petition or another postconviction motion, this claim is procedurally defaulted. McWhorter makes no argument that he can show cause for, or prejudice from, the default of this claim. Thus, the claim is barred from review in this court.

Additionally, and in the alternative, the court notes that even if it were to consider this claim on its merits, it would clearly fail. McWhorter cannot show that the Rule 32 court unreasonably denied his ineffective assistance of counsel claim for at least two reasons. First, McWhorter's trial counsel were not deficient for failing to object to the trial judge's decision to draft his sentencing order prior to his sentencing hearing because no Alabama or federal law forbids that practice. As the Rule 32 court explained, the trial judge remained "free to scrap his draft sentencing order after he heard evidence and arguments during sentencing hearing." (Vol. 24, Tab 65 at 1150-51).

Second, McWhorter was not prejudiced by his counsel's failure to object the pre-drafted sentencing order for the same reason that his trial counsel were not deficient: there is nothing improper about drafting a sentencing order before a sentencing hearing and, therefore, any objection by McWhorter's counsel would have been unavailing. The drafting of such an order does not in any way cabin the judicial officer into a particular ruling. The judge was free to rethink the issue, revise or scrap the draft, or take any of a number of other steps. Under § 2254(d), McWhorter simply cannot show that the state court's decision was contrary to or an unreasonable application of clearly established federal law, as determined by the U.S. Supreme Court.

4. The Rule 32 Court's Exclusion of Evidence Does Not Warrant an Evidentiary Hearing in this Court

a. The Parties' Arguments

McWhorter also claims that "[a]dditional evidence demonstrating trial counsel's shortcomings was never heard because the Hearing Court improperly excluded it on hearsay grounds." (Doc. 1 at 49). He argues that this court "must" consider that evidence here in determining whether trial counsel were ineffective.

Specifically, McWhorter argues that:

(Doc. 1 at 49-52).

b. Analysis

When McWhorter raised this claim on appeal from the denial of his Rule 32 petition, the Alabama Court of Criminal Appeals affirmed, finding that the testimony in question was properly excluded under Alabama law. McWhorter, 142 So. 3d at 1253-55. To the extent McWhorter may be challenging the state courts' rulings that this evidence was properly excluded under Alabama law, his claim is foreclosed because a state court's interpretation of its own laws provides no basis for federal habeas relief. See, e.g., Beverly v. Jones, 854 F.2d 412, 416 (11th Cir. 1988) (state court construction of state law is binding on federal courts entertaining petitions for habeas relief); Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (same); Pulley v. Harris, 465 U.S. 37, 42 (1984) (perceived errors of state law provide no basis for federal habeas relief); Callahan v. Campbell, 427 F.3d 897, 932 (11th Cir. 2005) ("It is a fundamental principle that state courts are the final arbiters of state law, and federal habeas courts should not second-guess them on such matters.").

Rather than raising this claim about the alleged improper exclusion of testimony by Dr. Ralph Tarter and Ms. Janet Vogelsang as an independent claim for relief, McWhorter appears to advance the claim as a basis for seeking an evidentiary hearing in this court. In particular, he makes the following argument in support of an evidentiary hearing on his claim that trial counsel were ineffective because they failed to investigate and present mitigating evidence:

(Doc. 1 at 52).

Section 2254(e)(2) provides as follows:

28 U.S.C. § 2254(e)(2).

The question is whether McWhorter can properly present this claim in this court. Absent certain unique circumstances, a habeas court is barred from holding an evidentiary hearing if the petitioner fails to develop the factual basis of a failure to investigate claim in the state court. Williams v. Alabama, 791 F.3d 1267, 1276 (11th Cir. 2015) (citing 28 U.S.C. § 2254(e)(2)). Consistent with its opening clause, § 2254(e)(2) "applies only to prisoners who have `failed to develop the factual basis of a claim in State court proceedings.'" Id. (quoting Williams v. Taylor, 529 U.S. 420, 430 (2000)). "Failure" connotes some "omission, fault or negligence" on the part of the petitioner. Id. (quoting Taylor, 529 U.S. at 431). Thus, "a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Id. (emphasis added) (quoting Taylor, 529 U.S. at 432 and citing Breedlove v. Moore, 279 F.3d 952, 960 (11th Cir. 2002) ("[A] petitioner cannot be said to have `failed to develop' relevant facts if he diligently sought, but was denied, the opportunity to present evidence at each stage of his state proceedings.")).

Having said that, McWhorter can only be said to have failed to develop the factual basis of his failure to investigate claim if there is lack of diligence, or some greater fault, attributable to him or his counsel. In assessing this question, the court asks whether McWhorter "made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court; it does not depend . . . upon whether those efforts could have been successful." Id. at 1277 (quoting Taylor, 529 U.S. at 435).

McWhorter argues that he was diligent because he "sought to present evidence of trial counsel's ineffective assistance at every stage of his state proceedings." (Doc. 1 at 52). He maintains that the trial court refused to allow him to present additional testimony from Dr. Tarter and Ms. Vogelsang on the ground that hearsay testimony is not allowed in Rule 32 proceedings.39 When McWhorter objected to the Rule 32 court limiting the testimony of Ms. Vogelsang, the court overruled the objection, noting that under Alabama law, "[e]xperts without firsthand knowledge generally may not base opinions upon facts or data that have not themselves been admitted into evidence." (Vol. 28 at 526-27).

As the Alabama Court of Criminal Appeals pointed out, McWhorter could easily have remedied this by calling as witnesses his family members, friends and others with first-hand knowledge of the facts and data necessary to enable the expert witnesses to provide their complete opinions. McWhorter, 142 So. 3d at 1256-57. However, these witnesses were not called, and as a result, the experts were not allowed to provide opinions based upon facts and data provided to those experts outside of court. Under these circumstances, the court cannot say that McWhorter and his Rule 32 counsel acted with diligence in trying to elicit further testimony from either Dr. Tarter or Ms. Vogelsang. Importantly, McWhorter does not allege that his Rule 32 counsel were constitutionally ineffective for failing to call additional witnesses at the evidentiary hearing. McWhorter is not entitled to an evidentiary hearing on his failure-to-investigate claim.

D. McWhorter's Claim That the State Failed to Disclose Evidence Directly Relevant to Mitigation in Violation of Brady v. Maryland, 373 U.S. 83 (1963)

1. The Parties' Arguments

McWhorter contends that the prosecution violated his rights to due process, a fair trial, and a reliable sentencing by failing to inform him of certain exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). Specifically, he claims that

(Doc. 1 at 55). McWhorter argues that this evidence was "indisputably highly favorable material evidence of paramount importance to the jury's penalty phase deliberations" and "would tend to reduce [his] culpability and penalty." (Id.) (citing Brady).

Respondent argues that this claim is procedurally barred from review in this court and that, in any event, the claim fails on the merits.

2. Analysis

McWhorter raised his Brady claim concerning Timothy Rice's statement for the first time in his Rule 32 petition. The Rule 32 court summarily dismissed the claim pursuant to Rule 32.7(d) of the Alabama Rules of Criminal Procedure. (Vol. 23 at 865; Vol. 24, Tab 65 at 1126). On appeal, the Alabama Court of Criminal Appeals affirmed the Rule 32 court's summary dismissal of the claim because it was procedurally barred and because it was insufficiently pleaded. McWhorter, 142 So. 3d at 1257. The court concludes that the claim is procedurally defaulted and that, even were it to consider the claim on the merits, the claim would fail.

a. Procedural Default

The Alabama Court of Criminal Appeals held that McWhorter's Brady claim was procedurally barred under Alabama Rule of Criminal Procedure 32.2(a)(3) and (a)(5) "because it could have been raised at trial and on appeal but was not." McWhorter, 142 So. 3d at 1257. Rule 32.2(a) is titled "Preclusion of Grounds" and provides that a 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." Ala. R. Crim. P. 32.2(a)(3), (a)(5). The Court of Criminal Appeals explained that Rule 32.2(a)(3), (5) bars a petitioner's claim unless the petitioner shows "that the information [forming the basis of his claim] was not known, and could not reasonably have been discovered, at trial or in time to raise the issue in a motion for new trial or on appeal." McWhorter, 142 So. 3d at 1261 (alteration in original). The court concluded that Rule 32.2(a)(3) and (a)(5) required McWhorter "to plead that his claim [was] based on newly discovered evidence and could not have been raised at trial or on direct appeal." Id. at 1260. The court found that "McWhorter failed to include in his petition any facts indicating that the State's alleged suppression of Rice's statement taken two months before trial continued until such time as the claim could not have been raised in a posttrial motion or on appeal." Id. "Because McWhorter did not allege any facts in his Rule 32 petition indicating when he learned of the existence of Rice's alleged statement or indicating that the discovery of the statement did not occur until after the time for filing a motion for a new trial or an appeal had lapsed," the court concluded that his Brady claim was "procedurally barred." Id.

Under the procedural default doctrine, "[a] state court's rejection of a petitioner's constitutional claim on state procedural grounds will generally preclude any subsequent federal habeas review of that claim." Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). However, a federal claim rejected on state procedural grounds is procedurally defaulted only "if the state procedural ruling rests upon `adequate and independent' state grounds." Ward v. Hall, 592 F.3d 1144, 1156 (11th Cir. 2010). The court must therefore determine whether the procedural rule the Court of Criminal Appeals applied to bar McWhorter's Brady claim — that a Rule 32 Petition must contain allegations negating the preclusive bars of Rule 32.2(a)(3) and (a)(5) to survive summary dismissal — constitutes an "adequate and independent" state law ground for procedural default purposes.

The Eleventh Circuit applies a three-part test to determine whether a state court's procedural ruling is adequate and independent for purposes of procedural default doctrine: (1) "the last state court rendering a judgment in the case must clearly and expressly state that it is relying on state procedural rules to resolve the federal claim without reaching the merits of that claim"; (2) "the state court's decision must rest entirely on state law grounds and not be intertwined with an interpretation of federal law"; and (3) "the state procedural rule must be adequate, i.e., firmly established and regularly followed and not applied in an arbitrary or unprecedented fashion." Id. at 1156-57 (internal quotation marks omitted). There is no question the first two elements are met here. The Court of Criminal Appeals expressly stated that McWhorter's Brady claim "was procedurally barred because it could have been raised at trial and on appeal but was not" and cited Rule 32.2(a)(3) and (a)(5) for that proposition. McWhorter, 142 So. 3d at 1257. And the state court's procedural ruling rested solely on its finding that McWhorter's Rule 32 petition "did not allege any facts . . . indicating when he learned of the existence of Rice's alleged [exculpatory] statement." Id. at 1260. Thus, the only question is whether the procedural rule applied by the state court to bar McWhorter's Brady claim was "adequate."

One reason a state procedural bar might be "inadequate" is if the state court erroneously applied the state procedural rule to bar a federal claim that should not in fact be barred under a correct interpretation of the state procedural rule.40 See Ward, 592 F.3d at 1156 (explaining that "adequate" state procedural rules must not be applied "in an arbitrary or unprecedented fashion"). McWhorter contends the Court of Criminal Appeals erroneously applied Rule 32.2(a)(3) and (a)(5) to bar his Brady claim because those provisions do not require a habeas petitioner to affirmatively assert, at the pleading stage, that he could not have raised the claim at trial or on appeal. (Doc. 20 at 43). He thus appears to argue that the state procedural bar is not "adequate" to bar his federal claim because the Court of Criminal Appeals committed state-law error in applying the bar.

McWhorter is correct that the procedural rule applied to bar his Brady claim — that a Rule 32 Petition must contain affirmative allegations negating the preclusive bars of Rule 32.2(a)(3) and (a)(5) to survive summary dismissal — has since been squarely rejected by the Alabama Supreme Court. See Ex parte Beckworth, 190 So.3d 571, 575 (Ala. 2013) (holding that habeas petitioners have no burden to plead facts negating the preclusive bars of Rule 32.2(a)(3) and (a)(5) to survive summary dismissal of their petition). But the test for deciding if a state procedural rule is "adequate" is whether the rule was "firmly established and regularly followed at the time it was applied," not at some later time. Edwards v. Carpenter, 529 U.S. 446, 450 (2000) (emphasis added) (internal quotation marks omitted) (describing the holding of Ford v. Georgia, 498 U.S. 411, 423-424 (1991)).41 And there is no question that the rule applied to bar McWhorter's Brady claim was firmly established and regularly applied, both in 2005 when he filed his Amended Rule 32 Petition and in 2011 when the state appellate court ruled on the claim. See Beckworth v. State, 190 So.3d 527, 541 (Ala. Crim. App. 2009) (holding that a summarily dismissed Brady claim was procedurally barred because petitioner "failed to include in his petition any facts indicating when he learned of [the alleged exculpatory statement] or indicating that he did not learn about the statement in time to raise the issue in a posttrial motion or on appeal"); Bryant v. State, 181 So.3d 1087, 1123 (Ala. Crim. App. 2011) (same); Ray v. State, 80 So.3d 965, 973-74 (Ala. Crim. App. 2011) (same); Davis v. State, 44 So.3d 1118, 1143-44 (Ala. Crim. App. 2009) (same); Windsor v. State, 89 So.3d 805, 825 (Ala. Crim. App. 2009) (same); Smith v. State, 71 So.3d 12, 35 (Ala. Crim. App. 2008) (same); Boyd v. State, 913 So.2d 1113, 1142 (Ala. Crim. App. 2003); Williams v. State, 782 So.2d 811, 818 (Ala. Crim. App. 2000) (same). The fact that the Alabama Supreme Court later abrogated that rule in 2013, see Ex parte Beckworth, 190 So. 3d at 575, has no bearing on whether the rule was an "adequate" state ground of decision at the time it was applied to bar McWhorter's Brady claim. McWhorter's Brady claim is procedurally defaulted.

Any doubts about whether McWhorter's Brady claim is procedurally defaulted are resolved by binding Eleventh Circuit precedent. In Boyd, the Eleventh Circuit considered a Brady claim nearly identical to the one at issue here—i.e., that the prosecution failed to turn over exculpatory statements made by the petitioner's codefendants. 697 F.3d at 1334. The state court had rejected the Brady claim as procedurally barred for the same reason the Alabama Court of Criminal Appeals rejected McWhorter's claim here: because the petitioner "did not assert in his petition that the claim was based on newly discovered evidence or that any alleged suppression by the State continued until such time as the claim could not have been raised at [his] trial." Boyd, 913 So. 2d at 1142. The Eleventh Circuit held that Boyd's Brady claims were procedurally defaulted, Boyd, 697 F.3d at 1335, and that holding is controlling here.

McWhorter does not argue that he can show cause or prejudice to excuse his procedural default or that failure to consider his Brady claim would result in a "fundamental miscarriage of justice." Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). Moreover, as explained below, because McWhorter cannot establish the prejudice necessary to succeed on his Brady claim, he also cannot establish prejudice to excuse the procedural default of his Brady claim. See Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). The court also finds that McWhorter has not shown the "fundamental miscarriage of justice" exception to the procedural default doctrine applies.

b. Merits

Even if McWhorter's Brady claim, "somehow, were not procedurally barred," this court's review of the claim would still be governed by § 2254(d)'s deferential standard of review. Boyd, 697 F.3d at 1335. And under that standard, the court has no trouble concluding that the state appellate court's rejection of McWhorter's Brady claim was neither contrary to nor an unreasonable application of clearly established Supreme Court precedent.

The Eleventh Circuit has summarized the Brady doctrine as follows:

Boyd, 697 F.3d at 1334-35 (alterations and omission in original).

McWhorter has failed to satisfy the prejudice component with respect to his Brady claim. He claims that if the defense had been aware of Rice's statement, "trial counsel would have called Rice as a witness, thereby effectively bolstering the argument that Miner — not McWhorter — fired the fatal shot and was the most vicious participant in the crime." (Doc. 1 at 55). But if the defense had called Rice to testify, any testimony regarding what he had been told by Miner would have been inadmissible hearsay. See Snyder v. State, 683 So.2d 45, 46-47 (Ala. Crim. App. 1996). And suppressed evidence is prejudicial "only if the suppressed information is itself admissible evidence or would have led to admissible evidence." Spaziano v. Singletary, 36 F.3d 1028, 1044 (11th Cir. 1994). McWhorter has identified no admissible evidence that may have been gleaned from the disclosure of Rice's inadmissible statement. He therefore cannot establish prejudice. Id.

It is true that Rice's testimony regarding Miner's statement could have been admitted to impeach testimony by Miner that McWhorter fired the fatal shots. Trawick v. State, 86 So.3d 1105, 1109 (Ala. Crim. App. 2011). But Miner did not testify at McWhorter's trial, so the court cannot know whether Miner might have offered testimony inconsistent with his alleged prior statement to Rice that would have permitted Rice to testify as an impeachment witness. And where a witness did not testify at trial, a court cannot speculate about what the witness might have said to determine whether the witness's testimony might have resulted in favorable, admissible evidence sufficient to establish a Brady violation. Wright, 169 F.3d at 703.

Finally, even if Miner had testified, and even if he had offered testimony inconsistent with his alleged prior statement to Rice that would have enabled Rice to testify as an impeachment witness, the court is still unable to conclude that the production of Rice's statement by the prosecution would have created "a reasonable probability" that the result of McWhorter's guilt- or penalty-phase proceedings would have been different. Id. at 701. The evidence of McWhorter's guilt — including his own confession, physical and ballistic evidence, and the testimony of others to whom he confessed — was overwhelming. McWhorter, 781 So. 2d at 265-66. The court is not convinced that the hearsay testimony of a jailhouse informant — offered not for its truth but to impeach another witness — would have likely changed the outcome of the guilt or penalty phases of McWhorter's trial. And it certainly cannot say that the state court would have been unreasonable to deny McWhorter's Brady claim because he failed to show prejudice. Accordingly, McWhorter is not entitled to relief on this claim.

E. McWhorter's Claim That the Trial Court Erred by Failing to Instruct the Jury on Lesser Included Offenses

At the conclusion of the guilt phase of the trial, the trial judge instructed the jury on the elements of capital murder during the course of a robbery. (Vol. 11, Tab 19 at 1724-27, 1747-50).42 The court also instructed the jury that if it found the state failed to prove beyond a reasonable doubt any one or more of the elements of the offense of murder during robbery in the first degree, it would be the jury's duty to find McWhorter not guilty of capital murder. (Id. at 1727, 1733, 1750). The trial judge provided the jury with a verdict form listing only two possible verdicts: guilty of capital murder, and not guilty of capital murder. (Vol. 11, Tab 19 at 1733). McWhorter objected to the court's refusal to charge the jury on lesser included offenses. (Id. at 1662-64, 1751).

1. The Parties' Arguments

Here, McWhorter claims that the trial court's failure to instruct the jury on "any lesser included offenses, particularly the lesser included offense of felony murder (which was not a capital offense at the time)," violated his right to due process, impermissibly enhancing the risk of a guilty verdict on the capital offense. (Doc. 1 at 57, 63) (citing Wiggerfall v. Jones, 918 F.2d 1544 (11th Cir. 1990)). He offers the following argument in support of his claim:

(Doc. 1 at 59-63).

McWhorter unsuccessfully presented this claim on direct appeal. Both the Alabama Court of Criminal Appeals and the Alabama Supreme Court found the trial court did not err in failing to instruct the jury on lesser included offenses. McWhorter v. State, 781 So.2d 257, 266-272 (Ala. Crim. App. 1999); Ex parte McWhorter, 781 So.2d 330, 333-343 (Ala. 2000). Respondent contends that the state courts properly applied clearly established federal law in denying this claim. (Doc. 14 at 53-62).

In denying relief on this claim, the Alabama Supreme Court found as follows:

Ex parte McWhorter, 781 So.2d 330, 333-339 (Ala. 2000).

2. Analysis

McWhorter argues that the Alabama Supreme Court's decision involved an unreasonable application of Beck v. Alabama, 477 U.S. 625 (1980). (Doc. 20 at 49). The court disagrees.

In Beck, the Supreme Court held that a death sentence may not constitutionally be imposed "when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict." 447 U.S. at 627. "[W]hen the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense — but leaves some doubt with respect to an element that would justify conviction of a capital offense — the failure to give the jury the `third option' of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction" for a capital crime, because it "interjects irrelevant considerations into the factfinding process, diverting the jury's attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime." Id. at 637, 642. "[F]orcing the jury to choose between conviction on the capital offense and acquittal creates a danger that it will resolve any doubts in favor of conviction." Id. at 632.

"Beck held that due process requires that a lesser included offense instruction be given when the evidence warrants such an instruction. But due process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction." Hopper v. Evans, 456 U.S. 605, 611 (1982) (emphasis in original). The Court most recently explained its Beck decision as follows:

Bobby v. Mitts, 563 U.S. 395, 398 (2011).

McWhorter contends that "the Alabama Supreme Court's decision was an unreasonable application of clearly established law [for] at least five reasons." (Doc. 20 at 49). First, he argues that:

(Doc. 20 at 49-50).

Under Alabama law, "voluntary intoxication is never a defense to a criminal charge," but it "may negate the specific intent essential to a malicious killing and reduce it to manslaughter. § 13A-3-2, Code of Alabama (1975) (Commentary)." McConnico v. State, 551 So.2d 424, 426 (Ala. Crim. App. 1988). "However, to negate the specific intent required for a murder conviction, the degree of the accused's intoxication must amount to insanity." Whitehead v. State, 777 So.2d 781, 832 (Ala. Crim. App. 1999), aff'd, 777 So.2d 854 (Ala. 2000) (quoting Smith v. State, 756 So.2d 892, 906 (Ala. Crim. App. 1998), aff'd, 756 So.2d 957 (Ala. 2000)).

McWhorter maintains that the trial judge should have given an instruction about manslaughter, so the jury (rather than the court) could have decided whether to believe the portions of his statement in which he claimed to have been intoxicated during the crime. However, Alabama law provides that a defendant is entitled to a jury instruction on a lesser included offense only if there is a "reasonable theory from the evidence that would support" the lesser charge, Smith v. State, 246 So.3d 1086, 1098 (Ala. Crim. App. 2017), and that rule "clearly does not offend federal constitutional standards," Hopper, 456 U.S. at 612.

The Alabama Supreme Court was not unreasonable in concluding there was no reasonable theory from the evidence to support a finding that McWhorter was intoxicated to the point of insanity and thus entitled to a manslaughter instruction. The only evidence that McWhorter was intoxicated at all was found in his voluntary, unsworn statement to police. The brief portion of the statement in which he claimed he was drunk at the time of the killing and did not even remember being at the victim's house was wholly inconsistent with the remainder of his statement in which he described, in detail, the other events that took place the night of the crime. Marcus Carter testified that he saw no evidence that McWhorter was intoxicated or had even been drinking before or after the crime.43 (Vol. 10 at 1491-92). Detective Maze testified that when he interviewed McWhorter the following day in the hospital, McWhorter appeared to understand what was going on, and did not seem to be under the influence of any drugs or alcohol. (Vol. 9 at 1257). Further, despite having been in the hospital after the crime, there was no evidence indicating that McWhorter's admission to the hospital was in any way related to his claim that he was intoxicated during the crime.44 McWhorter presented no medical records shedding light on the reason for his hospitalization and no expert testimony regarding his medical condition during his overnight hospital stay.45

Given these facts, it was not unreasonable for the Alabama Supreme Court to hold that there was no reasonable theory from the evidence capable of supporting the conclusion that McWhorter was intoxicated to the point of insanity during the killing. It follows that it was not unreasonable for the Alabama Supreme Court to affirm the state trial court's refusal to give a manslaughter instruction. The Alabama Supreme Court did not unreasonably apply Beck, and its conclusion that the "evidence offered by McWhorter as to alleged intoxication was glaringly inconsistent with his own statement giving detailed descriptions of the events" cannot be overturned on habeas review.

Second, McWhorter next claims that:

(Doc. 20 at 50). McWhorter is correct that defense counsel never specifically stated on the record at trial what his defense strategy was. However, defense counsel introduced nothing at trial tending to show that McWhorter was intoxicated at the time of the killing and made no argument that he was intoxicated during the killing. Rather, defense counsel focused on turning blame for the killing away from McWhorter and onto Marcus Carter. (Vol. 10 at 1555 — Vol. 11 at 1633, 1689-1711). And while defense counsel never specifically stated that their intention was to cast blame for the killing on Marcus Carter, it is clear from the record that was in fact the strategy employed. Thus, contrary to McWhorter's suggestion, it is not problematic at all that the state court found that a manslaughter instruction was incompatible with his trial strategy.

McWhorter's third argument that the Alabama Supreme Court unreasonably applied Beck is as follows:

(Doc. 20 at 50).

During the charge conference, defense counsel requested charges on the lesser included offenses of ordinary murder and intentional murder showing extreme indifference to the life of another person:

(Vol. 11 at 1662-65).

McWhorter argues that it was wrong for the Alabama Supreme Court to hold that a manslaughter instruction was not requested because he "specifically cited Fletcher v. State, 621 So.2d 1010 (Ala. Crim. App. 1993), and informed the court that Fletcher was reversed because the trial court failed to instruct on the lesser included offense of manslaughter." (Doc. 20 at 50). However, it is abundantly clear from the record of the charge conference that defense counsel requested charges only on intentional/ordinary murder and intentional murder showing extreme indifference to the life of another person. Although defense counsel cited Fletcher, a case involving a lesser included charge on manslaughter, a reading of the transcript makes clear that, in context, the request was for an intentional murder charge, not a manslaughter charge. Thus, it was neither an unreasonable application of clearly established law nor an unreasonable factual determination for the court to conclude that a manslaughter charge was not requested. And even if McWhorter had requested a manslaughter charge, it was not unreasonable for the state court to conclude that the evidence did not warrant such a charge for the reasons explained above.

McWhorter's fourth argument goes as follows:

(Doc. 20 at 50-51).

McWhorter seems to imply that the Alabama Supreme Court discounted the portion of his statement in which he stated he was so drunk at the time of the killing that he did not even remember being at the victim's house, because the state introduced the statement into evidence rather than the petitioner himself. But that was clearly not the Alabama Supreme Court's position. In context, that court stated:

Ex parte McWhorter, 781 So. 2d at 341. The point was that McWhorter's self-serving statement — that he was intoxicated — stood in direct contrast to the remainder of his statement, in which he described the events leading up to and after the killing in great detail. As previously discussed, there was nothing in evidence to indicate that McWhorter's alleged intoxication amounted to insanity so as to negate specific intent to kill. The Alabama Supreme Court's statement that McWhorter "did not produce testimony regarding his alleged intoxication" did not amount to an unreasonable application of Beck.

Sixth, McWhorter argues that:

(Doc. 20 at 51).

McWhorter's argument finds no support in the record. Although he claims that he "consumed so much alcohol on the day of the crime that within hours of the shooting, he was treated for alcohol overdose in the intensive care unit of the Boaz-Albertville Hospital," (id.), there is nothing in the record indicating why McWhorter was hospitalized. The pages of the trial transcript cited by McWhorter are from part of Detective Maze's testimony where he was reading from McWhorter's statement. On those pages, Detective Maze read the portions of the statement in which McWhorter stated, "So I got drunk Thursday," and "then I got pretty much drunk and we went and did all this. I don't remember being at the house. I really don't this. I promise to God I don't." (Vol. 10 at 1438). There is no mention on the pages cited (i.e., Vol. 10 at 1438-39) of the reason for McWhorter's hospitalization. In fact, there was no testimony in the entire trial indicating the cause of his hospitalization, and no medical records pertaining to his hospitalization were admitted or even referenced. Moreover, Detective Maze testified at the preliminary hearing that Abraham Barnes told him McWhorter was in the hospital because he tried to commit suicide after the killing. (Vol. 3, Tab 3 at 31-32).

Finally, McWhorter argues that if the trial court had granted his request for a manslaughter instruction, "defense counsel would have been able to argue to the jury that McWhorter's intoxication rendered him unable to form the specific intent to kill." (Doc. 20 at 51). However, he disregards the fact that there was no reasonable theory from the evidence to support the conclusion that at the time of the killing McWhorter was intoxicated to the point of insanity. Simply stated, there was no evidence to support a verdict convicting McWhorter of manslaughter (as opposed to capital murder).

For all these reasons, McWhorter has failed to show that the Alabama Supreme Court's ruling on this claim was an unreasonable application of Beck.

F. McWhorter's Claim That the Trial Court Improperly Excluded a Venireperson from Serving on the Jury in Violation of Witherspoon v. Illinois, 391 U.S. 510 (1968)

After the initial qualification of all the jurors summoned for the week, but prior to voir dire, the trial judge invited all veniremembers to offer any excuses they had for not serving on a jury:

(Vol. 3 at 183-84). Several jurors approached the judge to offer their excuses. (Vol. 3 at 183 — Vol. 4 at 227). When juror Susie McLain approached the judge, the following conversation took place:

(Vol. 4 at 207).

The record does not indicate that McLain was excused by the trial court, but her name was not on the list of veniremembers from which McWhorter's jury was selected (Vol. 4 at 238), and no further mention of her appears in the record.

1. The Parties' Arguments

McWhorter claims that the trial court violated his rights to due process and to a fair trial by excusing McLain "simply because she expressed an opinion against the death penalty." (Doc. 1 at 66). He explains that by excusing Ms. McLain without asking her "any questions regarding her ability to follow the law," the trial court deprived him of a fair and impartial jury. (Id.).

Respondent answers that McWhorter is not entitled to relief because the Alabama Court of Criminal Appeals properly applied clearly established federal law in denying this claim. (Doc. 14 at 63-65). In denying the claim, the Alabama Court of Criminal Appeals found:

McWhorter, 781 So. 2d at 272-275.

2. Analysis

McWhorter argues that the Alabama Supreme Court's decision was contrary to and involved an unreasonable application of Witherspoon v. Illinois, 391 U.S. 510 (1968) and Wainwright v. Witt, 469 U.S. 412 (1985). In Witherspoon, the Supreme Court held that "a sentence of death cannot be carried out if the jury that imposed it was chosen by excluding potential jurors for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." 391 U.S. at 522. As the Court explained:

Id. at 522 n.21.

This legal standard was later clarified in Witt:

Witt, 469 U.S. at 424-26 (footnotes omitted).

In Uttecht v. Brown, 551 U.S. 1 (2007), the Court reviewed its Witherspoon-Witt line of opinions and identified "four principles of relevance":

Uttecht, 551 U.S. at 9.

"Reviewing courts owe deference to a trial court's ruling on whether to strike a particular juror `regardless of whether the trial court engages in explicit analysis regarding substantial impairment; even the granting of a motion to excuse for cause constitutes an implicit finding of bias.'" White v. Wheeler, 136 S.Ct. 456, 460 (2015) (quoting Uttecht, 551 U.S. at 7). "The judgment as to `whether a venireman is biased . . . is based upon determinations of demeanor and credibility that are peculiarly within a trial judge's province. Such determinations [are] entitled to deference even on direct review; the respect paid such findings in a habeas proceeding certainly should be no less.'" Uttecht, 551 U.S. at 7 (quoting Witt, 469 U.S. at 428). "A trial court's `finding may be upheld even in the absence of clear statements from the juror that he or she is impaired.'" Wheeler, 136 S. Ct. at 460 (quoting Uttecht, 551 U.S. at 7).

Further, in cases such as McWhorter's, where we must review the state court's ruling under the constraints imposed by AEDPA, this court "must accord an additional and `independent, high standard' of deference." Id. (quoting Uttecht, 551 U.S. at 10). "As a result, federal habeas review of a Witherspoon-Witt claim — much like federal habeas review of an ineffective-assistance-of-counsel claim — must be `doubly deferential.'" Id. (quoting Burt v. Titlow, 571 U.S. 12, 15 (2013)).

The critical question related to this claim is whether the Alabama Court of Criminal Appeals' decision to affirm the trial court's excusal of McLain from the venire was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Wheeler, 136 S. Ct. at 461 (quoting White v. Woodall, 572 U.S. 415, 420 (2014)). The trial court, who was in the best position to judge McLain's demeanor, apparently believed that her statement that she did not believe in capital punishment warranted excusing her from the venire from which McWhorter's jury was chosen. A fairminded jurist could conclude that the trial judge considered McLain's request to be excused from any capital jury, and that the court was fair in exercising its "broad discretion" in deciding to excuse her. Id. McLain's statements were at least ambiguous as to whether she would be able to give appropriate consideration in a case which involved the potential for imposition of the death penalty. Because there was "ambiguity in the prospective juror's statements," the trial court was "entitled to resolve it in favor of the State." Uttecht, 551 U.S. at 7 (quoting Witt, 469 U.S. at 434). Thus, the Alabama Court of Criminal Appeals' finding that McLain was properly excused was neither contrary to nor an unreasonable application of Witherspoon and Witt.

G. McWhorter's Claim That the Trial Court Improperly Coerced the Jury into Returning a Death Sentence after the Jury Was Deadlocked

1. The Parties' Arguments

McWhorter argues that the trial court violated his right to a reliable sentencing determination by coercing the jury into recommending that he be sentenced to death. (Doc. 1 at 67). Specifically, he alleges that during the sentencing phase of the trial, when the jury informed the judge that it was unable to reach a verdict, "[i]nstead of instructing the jurors to keep deliberating and trying to reach agreement without surrendering their conscientiously-held positions, the trial court pressured the jury by unnecessarily discussing the cost and wastefulness of a potential retrial." (Id.).

In particular, McWhorter objects to the portion of the supplemental jury instruction in which the court stated as follows:

(Id. at 68) (quoting Vol. 12, Tab 29 at 1848).

Petitioner maintains this instruction suggested that the jury reach a "particular verdict," "essentially" telling the jury that "their failure to achieve ten votes for death, or seven for life, was socially unacceptable." (Id. at 68, 69). He argues that it was improper for the court to instruct the jury about what would occur after a mistrial and to instruct the jury that it should consider the financial cost of another trial. (Id. at 69-70). He further asserts that the speed of the jury's decision after it received the supplemental instruction proves that the instruction was coercive.46 (Id. at 70) (citing Lowenfield v. Phelps, 484 U.S. 231, 240 (1988) ("We are mindful that the jury returned with its verdict soon after receiving the supplemental instruction, and that this suggests the possibility of coercion.")).

Respondent argues that McWhorter is not entitled to relief, pointing out that he unsuccessfully raised this claim on direct appeal. (Doc. 14 at 66-69). In denying the claim, the Alabama Court of Criminal Appeals found as follows:

McWhorter v. State, 781 So.2d 257, 275-80 (Ala. Crim. App. 1999).

2. Analysis

McWhorter argues that the Alabama Court of Criminal Appeals' denial of his claim "was contrary to, and involved an unreasonable application of, clearly established U.S. Supreme Court precedent." (Doc. 1 at 71). The court disagrees. The clearly established law against coercive jury instructions is "sparse." Wong v. Smith, 562 U.S. 1021, 131 S.Ct. 10, 11 (2010) (Alito, J., dissenting).47 At the time of McWhorter's direct appeal, Lowenfield v. Phelps, 484 U.S. 231, 237 (1988) was the only Supreme Court decision addressing the constitutional rule against coercive jury instructions. See Wong, 131 S. Ct. at 11. In Lowenfield, the Supreme Court held that "[a]ny criminal defendant, and especially any capital defendant, being tried by a jury is entitled to the uncoerced verdict of that body." Lowenfield, 484 U.S. 241. The review of an allegation that the jury was improperly coerced requires the court to "consider the supplemental charge given by the trial court `in its context and under all the circumstances.'" Id. at 237 (quoting Jenkins v. United States, 380 U.S. 445, 446 (1965) (per curiam)). As Justice Alito noted in his dissent in Wong:

Wong, 562 U.S. at 11-12. This general standard gives state courts "wide latitude for reasonable decisionmaking under AEDPA." Id. at 12 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) ("The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.")).

McWhorter has not met the heavy burden of demonstrating that the Alabama Court of Criminal Appeals' decision was contrary to or an unreasonable application of Lowenfield. He first argues that when the jury informed the judge that it was unable to reach a verdict, the trial court "pressured the jury" rather than "instructing the jurors to keep deliberating and trying to reach agreement without surrendering their conscientiously-held positions." (Doc. 1 at 67). However, contrary to his assertion, the judge went out of his way to explain to the jurors that they were not expected to surrender their conscientious views to reach a verdict. Indeed, the trial judge expressly instructed the jury that "no juror should surrender their conscientious views"; "[w]hat I've said to you mustn't be taken as any attempt on my part to require any of you to surrender your honest and reasonable convictions"; and "[m]y sole purpose is to impress on you your duty and the desirability and importance of your reaching a verdict if you can conscientiously do so." (Vol. 12, Tab 29 at 1848, 1850).

McWhorter next argues that the jury instruction suggested that the jury reach a "particular verdict," "essentially" telling the jury that their failure to reach a verdict was "socially unacceptable." (Doc. 1 at 68-69). Yet, he points to nothing in the supplemental jury charge which even remotely suggests that any particular verdict should be reached. Nor is there anything in the instruction indicating that it would be unacceptable for the jury not to reach a verdict. Rather, the court simply urged the jury to "deliberate longer and reach a verdict if possible." (Vol. 12, Tab 29 at 1850).

McWhorter also challenges the portion of the supplemental jury charge in which the court stated: "[i]f you can't decide this case, I'll have to declare a mistrial and it will have to be done over again." (Vol. 12, Tab 29 at 1848). He claims that it was "improper," "speculative," "cumulative," and "wrong" for the court to instruct the jury about what would occur after a mistrial. (Doc. 1 at 69 and n.7). He points out that pursuant to Ala. Code § 13A-5-46(g)(1975), if a mistrial is declared in the penalty phase, it is "possible" that "both parties with the consent of the court may waive the right to have an advisory verdict from a jury, in which event the issue of sentence shall be submitted to the trial court without a recommendation from a jury." (Doc. 1 at 69, n.7; Ala. Code § 13A-5-46(g)(1975)).

McWhorter argues that courts "routinely find improper jury instructions about what will occur after a mistrial." (Doc. 1, at 69). However, he cites only United States v. Johnson, 432 F.2d 626 (D.C. Cir. 1970) in support of his argument that it is an "unfortunate fiction" to instruct a jury that a new trial will occur after a mistrial, because the question of whether a mistrial will or will not be followed by a new trial is "so speculative." (Id.). But this argument is without merit. The Supreme Court has held that circuit court precedent "does not constitute `clearly established Federal law, as determined by the Supreme Court.'" Parker v. Matthews, 567 U.S. 37, 48 (2012) (quoting Renico v. Lett, 559 U.S. 766, 779 (2010)). Therefore, Johnson cannot form the basis for habeas relief under AEDPA. Id. McWhorter has pointed to no clearly established Supreme Court precedent finding it unconstitutional for the trial court to instruct the jury that a case would be retried after a mistrial.

McWhorter further challenges the portion of the supplemental jury instructions mentioning the expense of the current trial and the potential expense of a retrial. In the supplemental instruction, the trial judge indicated that the parties and the court had "gone to considerable expense for this trial," and "more expense [would] be incurred" if the jury could not reach a verdict. (Vol. 12, Tab 29 at 1848). McWhorter contends that it was "entirely improper for the trial court, at the moment the jury was struggling with whether [he] should live or die, to instruct the jury that it should consider the financial cost of another trial." (Doc. 1 at 70). He argues that the cost of another trial has "absolutely nothing to do with the jury's sentencing decision." (Id.). In support of this contention, McWhorter cites United States v. Thomas, 449 F.2d 1177, 1183-84 (D.C. Cir. 1971) for the proposition that instructing the jury about the expense of a retrial was coercive. In Thomas, the D.C. Circuit held that the trial court's supplemental jury instruction, which included a declaration that he was "not going to declare a mistrial, and thereby require a retrial of this case before some other jury," was coercive. Thomas, 448 F.2d at 1183-84. Thomas does not help McWhorter for two reasons. First, a D.C. Circuit decision does not constitute clearly established Federal law, as determined by the Supreme Court, so it provides no basis for habeas relief. And second, Thomas is, in any event, distinguishable. The supplemental jury instruction in Thomas did not mention the financial cost of a new trial. McWhorter has pointed to no clearly established Supreme Court law finding it coercive for the trial court to mention the financial cost of a potential retrial.

Finally, McWhorter argues that the coerciveness of the supplemental instruction is demonstrated by the fact that the previously deadlocked jury reached a decision in less than an hour. (Doc. 1 at 70). While the speed with which a jury returns a verdict after receiving a supplemental charge may suggest the possibility of coercion, it is not necessarily indicative of it. See Lowenfield v. Phelps, 484 U.S. 231, 240 (1988). After careful review of the trial court's supplemental charge to the jury, the court concludes that it was not coercive.

The supplemental instruction did not threaten the jury; it did not set a deadline; it did not give the jury the impression that they had to surrender their conscientiously held beliefs; it did not suggest to the jury that they reach a particular verdict; and it did not imply that failure to reach a verdict was unacceptable. Further, the trial court's brief reference to the possibility of and cost of a potential retrial did not place undue emphasis on those factors when considered in the context of the entire instruction. Rather, the supplemental instruction explained what would happen if the jury could not reach a verdict, asked the jurors to reexamine the evidence and their opinions, and stressed the importance of the jury reaching a verdict if they could conscientiously do so.

The Alabama Court of Criminal Appeals found the trial court's supplemental jury charge was not coercive, threatening, or improper. This finding was neither contrary to nor an unreasonable application of clearly established Supreme Court precedent.

H. McWhorter's Claim That the Trial Court Improperly Directed Prospective Jurors to Give a Specific Answer to a Crucial Voir Dire Question

The prospective jurors for McWhorter's trial were divided into five separate panels. During the voir dire questioning of the second panel, the trial judge stated to the panel:

(Vol. 5 at 434).

During the voir dire questioning of the third panel, the trial judge stated:

(Id. at 515).

During the voir dire questioning of the fourth panel, the trial judge stated to the panel:

(Vol. 6 at 624). McWhorter claims the trial judge's remarks essentially directed the jurors on those panels to answer a question in a certain way. That assertion is wide of the mark.

1. The Parties' Arguments

McWhorter argues that these statements "instructing jurors how to answer the question," denied defense counsel a meaningful opportunity to ask jurors if they would automatically impose the death penalty upon conviction, in violation of his rights to due process and a fair trial. (Doc. 1 at 71-72). He adds that:

(Id. at 72).

Respondent counters that McWhorter is not entitled to relief, because the Alabama Court of Criminal Appeals properly applied clearly established federal law in denying this claim. (Doc. 14 at 69-72). In denying the claim, the Alabama Court of Criminal Appeals found:

McWhorter, 781 So. 2d at 280-81.

2. Analysis

McWhorter argues that the Alabama Supreme Court's decision was contrary to and involved an unreasonable application of Witherspoon v. Illinois, 391 U.S. 510 (1968) and Morgan v. Illinois, 504 U.S. 719 (1985). The Constitution does not "dictate a catechism for voir dire," but it does require that a defendant be afforded an impartial jury. Morgan, 504 U.S. at 729.

Id. at 729-30. In Morgan, the Court held that a capital defendant is entitled to ask prospective jurors, even prior to the state's case-in-chief, whether they have predetermined views on the death penalty that would disqualify them from serving on the jury. Id. at 731-36 (citing Witherspoon).

McWhorter contends that his "opportunity to question the potential jurors" was foreclosed by the trial judge's "repeated, prior instructions to these potential jurors on how to answer that exact question." (Doc. 20 at 58). That is, he claims that the

(Id. at 58-59). McWhorter argues that when the potential jurors were asked whether they would automatically vote for the death penalty if he were convicted, they answered those questions in the negative—but that was only because of the judge's statements. However, this assertion is based purely on speculation.

The record plainly reflects that McWhorter had ample opportunity to question the potential jurors on their opinions about the death penalty. (Vol. 4 at 366-397; Vol. 5 at 398-427, 543-595; Vol. 6 at 641-706, 723-736; Vol. 7 at 823-882). McWhorter had ample opportunity to ask prospective jurors whether they had predetermined views on the death penalty that would disqualify them from serving on the jury, which is what Morgan requires. There is nothing in the record to indicate that any juror answered the defense's questions untruthfully, whether due to the comments made by the judge or for any other reason. In fact, a fair reading of the record indicates that the judge's comments were not made for the purpose of directing the potential jurors as to how to answer the parties' questions about whether they would automatically impose the death penalty, but rather informed them of what their obligations as jurors would be. McWhorter's argument that the judge's comments directed the prospective jurors about how to respond to voir dire questions is simply not supported by the record.

The Alabama Court of Criminal Appeals' found that considering the voir dire as a whole, there was no reasonable likelihood that the venire took the court's statements as instructions that they were to answer no when asked if they would automatically vote for the death penalty if McWhorter were convicted. This finding was neither contrary to nor an unreasonable application of Witherspoon or Morgan.

VI. CONCLUSION

For all these reasons, and after careful review, the court concludes that McWhorter's petition (Doc. 1) is due to be denied. A separate order will be entered.

DONE and ORDERED.