INGE PRYTZ JOHNSON, Senior District Judge.
This action seeks habeas corpus relief from Petitioner Renard Marcel Daniel's state court conviction and death sentence on a charge of capital murder. See 28 U.S.C. § 2254.
The Alabama Court of Criminal Appeals ("ACCA"), in its opinion on direct appeal, set out the relevant facts of the case as follows:
James Logan, an evidence technician with the Birmingham Police Department, testified that, on September 27, 2001, he and other officers entered the victims' apartment and secured the scene. At that time, the victims were on the kitchen floor just inside of the door and there were footprints in what appeared to be blood on the kitchen floor. Logan testified that he collected eight shell casings, seven spent projectiles, one live round, beer cans and bottles, and two shoe impressions from inside of the apartment. Four of the spent projectiles were in the wall, and two were in the floor where the victims were. He also testified that it appeared that three of the projectiles that were in the wall had been fired by someone who was on the steps or the ground outside of the apartment door. He further testified that they found two shell casings outside of the victims' apartment; one shell casing in the dumpster to which Jackson referred; and a pair of tennis shoes in the trunk of the vehicle the appellant had had towed to the apartments. The tennis shoes were the same size as two other pairs of shoes officers found in the appellant's apartment.
Forensic testing revealed that the shoe impressions officers recovered were made by tennis shoes that were the same size and pattern as the tennis shoes officers retrieved from the trunk of the vehicle the appellant had had towed to the apartments. Also, DNA testing showed that blood on the right tennis shoe matched McCulloch's DNA profile. Finally, firearms and toolmarks testing showed that the projectiles and shell casings were fired from the same firearm and that that firearm was probably a .380 semiautomatic.
Autopsies revealed that the victims sustained several gunshot wounds and that they died as a result of those wounds. Brodie had a gunshot wound to the head that was made from a distance of three inches to three feet, and McCulloch had a contact gunshot wound to the head. Testing showed that Brodie's blood alcohol content was .32 and McCulloch's was .17.[
Daniel v. State, 906 So.2d 991, 994-97 (Ala. Crim. App. 2004).
After the formal sentencing hearing, the trial court found the existence of three statutory aggravating circumstances and no statutory mitigating circumstances.
Id. at 11-12. In regard to nonstatutory mitigating evidence, the trial court found:
Id. at 14-15. "After consideration of all the matters that were presented to" the court, "the testimony heard at trial, the sentencing hearing before the jury, and the sentencing hearing before" the court, and "both statutory and non-statutory mitigating factors . . .", the court found that "the aggravating circumstances outweigh the mitigating circumstances and is [sic] sufficient to uphold the Jury's recommendation of punishment by death." Id. at 15.
On March 14, 2003, a jury found Petitioner Renard Marcel Daniel guilty of capital murder for the offense of murder of two or more persons pursuant to one scheme or conduct, in violation of Alabama Code § 13A-5-40(a)(10).
The trial court conducted a formal sentencing hearing as required by Alabama Code § 13A-5-47 on May 9, 2003. Id. at 5. See also C.R. Vol. 7, Tab 25, pp. 928-44. In accordance with the jury's recommendation, the trial judge sentenced Daniel to death. Id. Daniel's trial counsel declined to continue his representation. Id. at Tab 26, p. 945. The court appointed James Kendrick to handle Daniel's appeal. C.R. Vol. 14, p. 27, Order of June 26, 2003. Daniel filed a direct appeal in the ACCA. C.R. Vol. 9, Tab 28. The ACCA affirmed the trial court's ruling. Daniel, 906 So. 2d at 991; C.R. Vol. 23, Tab 59. The Alabama Supreme Court denied Daniel's petition for writ of certiorari on February 18, 2005. See id. On October 3, 2005, the United States Supreme Court denied Daniel's petition for writ of certiorari. C.R. Vol. 23, Tab 60.
On February 14, 2006, Daniel filed a Rule 32 post-conviction petition. C.R. Vol. 16, Tab 43. In the petition, Daniel argued ineffective assistance of trial and appellate counsel. Id. The State filed an answer and motion to dismiss largely arguing that Daniel's Rule 32 petition was insufficiently pleaded. C.R. Vol. 16, Tab 44. The trial court dismissed Daniel's petition finding, first, that the ineffective assistance of counsel claims were procedurally barred, because appellate counsel had a transcript of Daniel's trial and could have raised ineffective assistance claims on direct appeal. C.R. Vol. 14, p. 62, Order of July 31, 2006. The court also found that Daniel's Rule 32 petition largely failed to plead facts with specificity that, had they been presented, would have resulted in a different verdict. See id. pp. 4-5.
Daniel then filed a motion to reconsider, or in the alternative, leave to amend. C.R. Vol. 17, Tab 45. After holding a hearing on Daniel's motion to reconsider, the court vacated its order and allowed Daniel to amend his Rule 32 petition. C.R. Vol. 23, Tab 62. Daniel then filed an amended Rule 32 petition largely arguing the same issues presented in his habeas petition. C.R. Vol. 17, Tab. 46. The trial court held oral argument on May 23, 2007 to decide whether an evidentiary hearing was warranted on Daniel's amended Rule 32 petition. See C.R. Vol. 14, p. 54. Following oral argument, the trial court granted Daniel leave to file a second amended Rule 32 petition. Id.; see also C.R. Vol. 11, Tab 36. The trial court dismissed Daniel's Second Amended Rule 32 Petition and declined to hold an evidentiary hearing. C.R. Vol. 14, p. 56. The trial court also denied Daniel's motion for oral argument and motion to reconsider. C.R. Vol. 14, pp. 57-58.
Daniel appealed the trial court's Rule 32 denial to the ACCA. C.R. Vol. 19, Tab. 49. The ACCA noted that the trial court's opinion found that Daniel raised grounds that could have been raised at trial, but that the trial court denied Daniel's claims on alternative grounds as well. The ACCA affirmed on those alternative grounds. Daniel v. State, 86 So.3d 405, 414-15 (Ala. Crim. App. 2011). Daniel filed an application for rehearing, which the ACCA denied on July 15, 2011. C.R. Vol. 23, Tab 66, Notice of July 15, 2011. The Alabama Supreme Court then denied Daniel's petition for writ of certiorari on Dec. 16, 2011. C.R. Vol. 23, Tab 67. The United States Supreme Court also denied Daniel's petition for writ of certiorari on October 1, 2012. C.R. Vol. 23, Tab 68. On July 24, 2012, Daniel filed the instant habeas petition. Petition for Writ of Habeas Corpus (doc. 1).
Pursuant to 28 U.S.C. § 2254(a), a federal district court is prohibited from entertaining a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court" unless the petition alleges "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In other words, this Court's review of habeas claims is limited to federal constitutional questions. Claims pertaining solely to "an alleged defect in a [state] collateral proceeding" or to a "state's interpretation of its own laws or rules" do not provide a basis for federal habeas corpus relief under section 2254. Alston v. Dep't of Corr., Fla., 610 F.3d 1318, 1325-26 (11th Cir. 2010) (citations omitted). Accordingly, unless otherwise expressly stated, use of the word "claim" in this opinion presupposes a claim of federal constitutional proportion.
Under 28 U.S.C. §§ 2254(b) and (c), a federal court must limit its grant of habeas applications to cases where an applicant has exhausted his state remedies. Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). The purpose of this requirement is to ensure that state courts are afforded the first opportunity to correct federal questions affecting the validity of state court convictions. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) (quoting Smith v. Newsome, 876 F.2d 1461, 1463 (11th Cir. 1989) ("Federal courts are not forums in which to relitigate state trials."). Moreover, "to exhaust state remedies fully the petitioner must make the state court aware that the claims asserted present federal constitutional issues. `It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state-law claim was made.'" Id. (quoting Anderson v. Harless, 459 U.S. 4, 5-6 (1982)).
"[A]n issue is exhausted if `the reasonable reader would understand [the] claim's particular legal basis and specific factual foundation' to be the same as it was presented in state court." Pope v. Sec'y for Dep't of Corr., 680 F.3d 1271, 1286 (11th Cir. 2012) (quoting Kelly v. Sec'y, Dep't of Corr., 377 F.3d 1317, 1344-45 (11th Cir. 2004)). If a petitioner fails to raise his federal claim to the state court 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, i.e., "the petitioner will have procedurally defaulted on that claim." Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010). Moreover, "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." Ward v. Hall, 592 F.3d 1144, 1156 (11th Cir. 2010) (quoting Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (citation omitted).
Yet as the Eleventh Circuit has noted, a claim will only be procedurally defaulted in the following circumstance:
Ward, 592 F.3d at 1156-57 (footnote omitted).
The Supreme Court defines an "adequate and independent" state court decision as one which "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 original). To be "independent of the federal question," a state procedural rule "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)). To be considered "adequate," the state procedural rule must be both "firmly established and regularly followed." Kemna, 534 U.S. at 376 (quoting James v. Kentucky, 466 U.S. 341, 348 (1984)). This does not mean that the procedural rule must be rigidly applied in every instance, or that occasional failure to do so eliminates its "adequacy." 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.
There are also instances where the doctrines of procedural default and exhaustion intertwine. For instance, if a petitioner's federal claim is unexhausted, a district court will traditionally dismiss it without prejudice or stay the cause of action to allow the petitioner to first avail himself of his state remedies. See Rose v. Lundy, 455 U.S. 509, 519-20 (1982). But "if it is clear from state law that any future attempts at exhaustion [in state court] would be futile" under the state's own procedural rules, a court can simply find that the claim is "procedurally defaulted, even absent a state court determination to that effect." Bailey, 172 F.3d at 1305 (citation omitted).
"[A]n adequate and independent finding of 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." Coleman v. Thompson, 501 U.S. 722, 749-50 (1991) (citations and internal quotation marks omitted). See also 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.").
The "cause and prejudice" exception is framed in the conjunctive, and a petitioner must prove both cause and prejudice. To show cause, a petitioner must prove that "some objective factor external to the defense impeded counsel's efforts" to raise the claim previously. Carrier, 477 U.S. at 488. Examples of such objective factors include:
McClesky v. Zant, 499 U.S. 467, 493-94 (1991) (citations omitted). As for prejudice, a habeas petitioner must show "not merely that the errors . . . 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 in original).
A petitioner may also escape a procedural default bar if he "can demonstrate a sufficient probability that our failure to review his federal claim will result in a fundamental miscarriage of justice." Edwards v. Carpenter, 529 U.S. 446, 451 (2000). To make such a showing, a petitioner must establish that either: (1) "a constitutional violation has probably resulted in the conviction of one who is actually innocent," Smith v. Murray, 477 U.S. 527, 537-38 (1986) (quoting Carrier, 477 U.S. at 496), or (2) 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 v. Delo, 513 U.S. 298, 323 (1995) (quoting Sawyer v. Whitley, 505 U.S. 333, 336 (1992)) (emphasis in original).
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a petitioner is only entitled to relief on a federal claim if he shows that "the state court decision was (1) `contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States'; or (2) `based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Boyd v. Allen, 592 F.3d 1274, 1292 (11th Cir. 2010) (quoting 28 U.S.C. § 2254(d)); see also Alderman v. Terry, 468 F.3d 775, 791 (11th Cir. 2006) ("[T]he `contrary to' and `unreasonable application' clauses are interpreted as independent statutory modes of analysis." (citation omitted)). Moreover, "[a] state court's factual findings are presumed correct unless rebutted by the petitioner with clear and convincing evidence." Boyd, 592 F.3d at 1292 (citing § 2254(e)(1)).
A state-court determination can be "contrary to" clearly established Supreme Court precedent in either of two ways:
Williams, 529 U.S. at 405 (citation omitted). The Supreme "Court has held on numerous occasions that it is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme] Court." Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (citations and internal quotation marks omitted). Therefore, the proper inquiry under the AEDPA "is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable—a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citation omitted).
Finally, section "2254(d)(2) regulates federal court review of state court findings of fact; the section limits the availability of relief to `decisions that were based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Alderman, 468 F.3d at 791 (brackets omitted) (quoting § 2254(d)(2)). And commensurate with the deference accorded to a state court's factual findings, "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 1155-56 (alterations in original) (quoting § 2254(e)(1)). "This presumption of correctness applies equally to factual determinations made by state trial and appellate courts." Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir. 2003) (citing Sumner v. Mata, 449 U.S. 539, 547 (1981)).
Because habeas corpus review is limited to review of errors of constitutional dimension, a habeas corpus petition "must meet [the] heightened pleading requirements [of] 28 U.S.C. § 2254 Rule 2(c)." McFarland v. Scott, 512 U.S. 849, 856 (1994) (citation omitted). "[T]he petition must `specify all the grounds for relief available to the petitioner' and `state the facts supporting each ground.'" Mayle v. Felix, 545 U.S. 644, 655 (2005) (quoting Rule 2(c) of the Rules Governing Section 2254 Cases in the U.S. District Courts). The burden of proof is on the habeas petitioner "to establish his right to habeas relief and he must prove all facts necessary to show a constitutional violation." Blankenship v. Hall, 542 F.3d 1253, 1270 (11th Cir. 2008) (citation omitted). That is, to carry his burden, "a petitioner must state specific, particularized facts which entitle him or her to habeas corpus relief for each ground specified. These facts must consist of sufficient detail to enable the court to determine, from the face of the petition alone, whether the petition merits further habeas corpus review." Adams v. Armontrout, 897 F.2d 332, 334 (8th Cir. 1990). See Smith v. Wainwright, 777 F.2d 609, 616 (11th Cir. 1985) (holding that a general allegation of ineffective assistance of counsel is insufficient; a petition must allege specific errors in counsel's performance and facts showing prejudice).
The court now turns to Daniel's specific claims with these principles in mind.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established the following two-pronged standard for judging, under the Sixth Amendment, the effectiveness of attorneys who represent criminal defendants at trial or on direct appeal:
Id. at 687 (emphasis added). See also Reed v. Sec'y, Fla. Dep't of Corr., 593 F.3d 1217, 1239-41 (11th Cir. 2010).
Because Strickland's preceding two-part test is clearly framed in the conjunctive, a petitioner bears the burden of proving both "deficient performance" and "prejudice" by "a preponderance of competent evidence." Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc). See also 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."). Further, when assessing ineffective assistance of counsel claims:
Williams v. Allen, 598 F.3d 778, 789 (11th Cir. 2010) (brackets in original omitted) (citations omitted).
In order to establish deficient performance, a habeas petitioner "must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. That reasonableness is judged against "prevailing professional norms." Id. Moreover, under Strickland, lower federal courts must be "highly deferential" in their scrutiny of counsel's performance. As the Strickland court outlined:
Strickland, 466 U.S. at 689 (citations and quotation marks omitted). Simply put, a habeas petitioner "must establish that no competent counsel would have taken the action that his counsel did take" to overcome the presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Chandler, 218 F.3d at 1315 (citation omitted).
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., Newland v. Hall, 527 F.3d 1162, 1184 (11th Cir. 2008) ("We review counsel's performance `from counsel's perspective at the time,' to avoid `the distorting effects of hindsight.'" (quoting Strickland, 466 U.S. at 689)).
To satisfy the prejudice prong, a habeas petition "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. Stated differently, "[a] finding of prejudice requires proof of unprofessional errors so egregious that the trial was rendered unfair and the verdict rendered suspect." Johnson v. Alabama, 256 F.3d 1156, 1177 (11th Cir. 2001) (citations and quotation marks omitted).
Further, the fact that counsel's "error had some conceivable effect on the outcome of the proceeding" is insufficient to show prejudice. Strickland, 466 U.S. at 693. Therefore, "when a petitioner challenges a death sentence, `the question is whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.'" Stewart v. Sec'y, Dep't of Corr., 476 F.3d 1193, 1209 (11th Cir. 2007) (quoting Strickland, 466 U.S. at 695).
Because Strickland and § 2254(d) both mandate standards that are "highly deferential", "when the two apply in tandem, review is `doubly so.'" Harrington v. Richter, 131 S.Ct. 770, 788 (2011) (citations omitted). The inquiry is not then "whether counsel's actions were reasonable," but is instead "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. (citations omitted). The court must determine "whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard." Id. at 785.
An ineffective assistance of counsel claim presents "a mixed question of law and fact." Thompson v. Haley, 255 F.3d 1292, 1297 (11th Cir. 2001) (citation omitted). "State court findings of historical facts made in the course of evaluating an ineffectiveness claim are subject to a presumption of correctness under 28 U.S.C. § 2254(d)." Id.
Daniel asserts seventeen claims of ineffective assistance of counsel during the penalty phase of his trial, eight claims of ineffective assistance of counsel during the guilt phase, and one claim of ineffective assistance of appellate counsel. Although some of the factual allegations and legal arguments supporting Daniel's claims overlap, the court will address each claim separately in the interest of clarity. The court proceeds in the order laid out in Mr. Daniel's habeas petition.
Respondent argues that Daniel presents the following new factual allegations in support of his claim and that they are, therefore, procedurally barred from this court's review: "(1) the allegation that attorney Katheree Hughes, Daniel's trial counsel, `had yet to investigate Mr. Daniel's background for mitigation evidence' at the conclusion of Daniel's trial, and (2) the allegation that counsel's `failure to investigate resulted in the failure to present significant mitigation evidence, including the sexual abuse of Mr. Daniel as a child and his borderline mental retardation.'" Response p. 9 (doc. 16). As to Respondent's first claim, the court notes that Daniel's argument before the ACCA was that trial counsel was unprepared for the penalty phase. Daniel, 86 So. 3d at 428-29. Throughout his postconviction petition, Daniel alleged that trial counsel failed to produce mitigation evidence. By "unprepared", then, the court understands Daniel's argument to have been that trial counsel failed to investigate Daniel's background for mitigation evidence. Given that Daniel alleged that Hughes was not prepared to proceed with the penalty phase of trial, the court finds that Daniel sufficiently presented the claim to the ACCA that Hughes had yet to investigate Daniel's background for mitigating evidence at the conclusion of Daniel's trial. As to Respondent's second claim, the ACCA specifically addressed Daniel's contention that trial counsel was ineffective for failing to present evidence that he had been sexually abused by his stepfather. Id. at 430. Moreover, the ACCA addressed Daniel's argument that counsel was ineffective for failing to explore Daniel's possible mental retardation. Id. at 431. Accordingly, because the reasonable reader would understand these claims' particular legal basis and factual foundation to be the same as presented in state court, the factual claims are not barred from this court's review.
Daniel argues that the ACCA's denial of Daniel's claim that trial counsel was admittedly unprepared for the penalty phase was an unreasonable determination of facts and an unreasonable determination of the Supreme Court's ruling in Williams v. Taylor, 529 U.S. 362, 395 (2000). Daniel argues that in Williams, the United States Supreme Court "held that a one-week preparation for sentencing is deficient," and, therefore, Trial Counsel actually "requested a constitutionally inadequate amount of time to prepare." Reply Brief pp. 35-36 (doc. 23) (emphasis in original).
As to Daniel's claim that trial counsel admitted that he was unprepared for the penalty phase, the ACCA found that the claim was unsupported by the record. Daniel, 86 So. 3d at 428-29. The ACCA recited the record:
Id. at 428-29 (quoting C.R. Vol. 7, Tab 15, p. 885). The ACCA concluded that "[d]efense counsel did not state that he was not prepared to go forward with the penalty phase. Daniel's claim is not supported by the record." Id. at 429. Further, noted the court, "[a]n allegation that is refuted by the record fails to state a claim and does not establish that a material issue of fact or law exists as required by Rule 32.7(d)." Id. (citation omitted). Because the ACCA found that Daniel failed to state a claim and failed to establish a material issue of fact or law, this ruling was on the merits and is subject to AEDPA review by this court. See Borden v. Allen, 646 F.3d 785, 822 n. 44 (11th Cir. 2011) (finding that ". . . [r]ather than find it insufficiently pled, the Court of Criminal Appeals summarily dismissed it under Rule 32.7(d) because it failed to present a material issue of law or fact. This dismissal was on the merits, and therefore subject to AEDPA review by this court.").
This court disagrees with Daniel's simplistic reading of Williams. While in Williams, the Supreme Court noted that the trial counsel did not begin to prepare for the sentencing phase until a week before the trial, the Court also noted that in that case counsel "failed to conduct an investigation that would have uncovered extensive records graphically describing Williams' nightmarish childhood. . . ." Williams, 529 U.S. at 395. The Court further noted that had trial counsel adequately prepared for their client's sentencing hearing, "the jury would have learned that Williams' parents had been imprisoned for the criminal neglect of Williams and his siblings, that Williams had been severely beaten by his father, that he had been committed to the custody of the social services bureau for two years during his parents' incarceration (including one stint in an abusive foster home), and then, after his parents were released from prison, had been returned to his parents' custody." Id. Moreover, the testimony of the three witnesses in Williams's trial simply described "Williams as a nice boy and not a violent person." Williams, 529 U.S. at 369. Thus, trial counsel's deficiency did not merely lie in the amount of time they spent preparing for the defendant's sentencing hearing. Rather, the lack of preparation time resulted in trial counsel's failure to uncover and, therefore, present a wealth of potentially mitigating evidence.
That Daniel's attorney had only thirty minutes before beginning the penalty phase of Daniel's trial was not in itself indicative of deficient performance given that counsel presented a significant amount of mitigating evidence to the jury. Carolyn Daniel, the petitioner's mother, testified that Daniel suffered from ADHD, was diagnosed with dyslexia, dropped out of high school in the 10th grade, that she and Daniel's father had separated, that Daniel's father died when he was a child, that Daniel suffered physical abuse from his stepfather (abuse so severe that she came home to find Daniel beaten and suffering from what the hospital later determined was a damaged kidney), that Daniel was subsequently removed from her home, that Daniel was separated from his siblings, that Daniel was moved to a boys' home where he stayed ten months, that Daniel thereafter returned to his mother's home, and that Daniel began using alcohol and marijuana at the age of 16. C.R. Vol. 7, Tab 20, pp. 895-902. Daniel's case differs drastically from Williams where the postconviction counsel uncovered a wealth of mitigating evidence that the trial counsel had unreasonably failed to unearth. Here, Carolyn Daniel testified to the wealth of mitigating evidence in Daniel's case, much of which the trial judge relied on in sentencing Daniel. Accordingly, the ACCA's denial of Daniel's claim was not an unreasonable application of Williams.
Moreover, the ACCA is correct that trial counsel did not admit to being unprepared for the penalty phase. Rather, the record establishes that trial counsel requested additional time to go through information they needed to go through. Trial counsel did not request an exorbitant amount of time. Trial counsel merely requested to begin the penalty phase the next morning as opposed to the same afternoon that the guilt phase ended, indicating that trial counsel was not unprepared for the penalty phase but just needed more time to go through all his information. Additionally, the record establishes that Daniel's trial counsel did reach out to Daniel's mother in preparation for his trial. Daniel's letter to trial counsel dated February 28, 2003 states the following: "Please be advised it is I who am to stand trial, and, quite frankly, am facing a sentence of such grave seriousness of the death sentence.
Even assuming his trial counsel performed deficiently by failing to prepare more for the penalty phase of trial, Daniel is still unable to "show that the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687. After reviewing the record as well as the arguments before this court, this court concludes that Daniel has not proven "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."Id. at 694. In fact, a wealth of mitigating evidence concerning Daniel's upbringing and social background were presented to the jury during the penalty phase through the testimony of Carolyn Daniel. C.R. Vol. 7, Tab 20, 895-902. Accordingly, the ACCA's ruling was not contrary to nor did it involve an unreasonable application of Supreme Court precedent.
Although Respondent raises no procedural default concerns in regard to this claim, if the State does not explicitly waive procedural default, it is not waived. Under 28 U.S.C. § 2254(b)(3), "[a] State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." See also Dill v. Holt, 371 F.3d 1301, 1302 n. 1 (11th Cir. 2004) (stating that 28 U.S.C. § 2254(b)(3) requires a court to address exhaustion when it is not expressly waived by the State). Daniel did not present this claim to the ACCA as he presents it here. However, because it is cumulative of Daniel's other claims that trial counsel failed to present specific types of mitigating evidence to the jury, which Daniel did present to the ACCA, the court finds that Daniel did exhaust this claim before the state court because the reasonable reader would understand the legal and factual basis for the claim based on the postconviction petition. Accordingly, this claim is not procedurally barred from this court's review.
The court first notes that Daniel's habeas petition and reply brief present convoluted arguments for this claim, and the court understands Daniel's claim to be that his trial counsel failed to present the evidence listed in bullet points under this heading in his habeas petition. See Dupree v. Warden, 715 F.3d 1295, 1299 (11th Cir. 2013) ("A habeas petitioner must present a claim in clear and simple language such that the district court may not misunderstand it.") (citations omitted).
In his habeas petition, Daniel claims that a reasonable investigation by his trial counsel would have revealed the following mitigating evidence:
Habeas Petition pp. 24-25 (doc. 1). Daniel further alleges that this information was readily available from Tammi and Carolyn Daniel, given that they provided Daniel's current counsel with this information. Id. at 25-26.
In his Reply Brief, Daniel argues that the ACCA erred in several respects: (1) unreasonably applying Supreme Court precedent in finding that Daniel failed to plead how the evidence of childhood abuse would have been mitigating; (2) making an unreasonable determination of fact in concluding that Daniel failed to plead how such evidence would have been mitigating, because "trial counsel should have enlisted the services of a mitigation expert like Martha Loring to explain the impact of childhood abuse on Daniel's development"; (3) ignoring the evidence of sexual abuse presented by Daniel; (4) making the unreasonable determination of fact that Daniel's claims concerning childhood abuse were cumulative of evidence presented at trial; (5) unreasonably applying Supreme Court precedent in concluding that trial counsel was not ineffective for failing to present evidence of Daniel's non-violent character because, confronted with overwhelming aggravating circumstances, trial counsel could have reasonably determined that such character evidence would have been of little help; and (6) unreasonably applying Williams by failing to consider the prejudicial effect of trial counsel's deficient performance based on the totality of mitigating evidence. Reply Brief pp. 45-51 (doc. 23).
As to the claim concerning Daniel's childhood sexual abuse, the ACCA found that "Daniel was required to identify the names of the witnesses he alleged should have been interviewed, to plead with specificity what admissible information those witnesses would have provided, and to allege how the result of those proceedings would have been affected by the additional testimony." Daniel, 86 So. 3d at 430. This court finds that the ACCA's determination concerning Daniel's claims about sexual abuse was not an unreasonable determination of fact. Daniel pleaded that during an interview with current counsel, Tammi Daniel "confirmed that she had witnessed Mr. Western sexually abuse her brother and volunteered that he also forced the three Daniel children to engage in sexual acts with each other, threatening to kill Mrs. Daniel if any of them told." Id. Yet Daniel did not plead that Tammi Daniel would have testified to the sexual abuse Daniel suffered. Rather, Daniel pleaded that Tammi Daniel would be available to testify about the physical abuse, but not that she was available and willing to testify about the sexual abuse. See Habeas Petition pp. 32-34. Daniel claims that Carolyn Daniel alluded to the sexual abuse in her testimony. Yet Daniel does not allege that Carolyn Daniel would have testified about the sexual abuse. Thus, this court disagrees with Daniel's contention that the ACCA ignored the evidence of sexual abuse presented by Daniel, because the ACCA specifically addressed the alleged sexual abuse and found any such evidence lacking. Accordingly, the ACCA's ruling is not an unreasonable determination of fact.
This court also fails to see that the ACCA unreasonably applied Supreme Court precedent in determining that Daniel failed to establish how the additional evidence would have been mitigating. The cases Daniel cites in his petition are distinguishable. For instance, in Wiggins v. Smith, 539 U.S. 510 (2003), the Supreme Court noted that counsel's investigation was limited to one psychological examination, the written Presentence Investigation Report, and records kept by the Baltimore City Department of Social Services. Wiggins, 539 U.S. at 523. Moreover, the Court noted, counsel unreasonably failed to conduct an investigation into potentially mitigating evidence:
Wiggins, 539 U.S. at 525 (emphasis added). The Court further noted that although counsel in Wiggins "told the jury it would `hear that Kevin Wiggins has had a difficult life,' counsel never followed up on that suggestion with details of Wiggins' history. . . . Far from focusing exclusively on petitioner's direct responsibility, then, counsel put on a halfhearted mitigation case, taking precisely the type of "`shotgun'" approach the Maryland Court of Appeals concluded counsel sought to avoid." Id. at 526 (citations omitted).
Similarly, in Cooper v. Sec'y, Dept. of Corr., 646 F.3d 1328, 1352 (11th Cir. 2011), "the jury heard nothing about the abuse inflicted on Cooper by his father and brother, hearing only of the abuse Cooper's father inflicted on Cooper's mother. Dr. Merin actually testified that Cooper's father was `exceptionally abusive, both physically and verbally,' before the judge, but there was no testimony as to the specifics of the abuse directed toward Cooper." Moreover, in Rompilla v. Beard, 545 U.S. 374, 392-93 (2005), the Supreme Court found that counsel's failure to investigate prior convictions resulted in failure to present mitigating evidence, and the "jury never heard any of this and neither did the mental health experts." Moreover, "[t]his evidence adds up to a mitigation case that bears no relation to the few naked pleas for mercy actually put before the jury. . . ." Rompilla, 545 U.S. at 392-93.
Likewise, in Johnson v. Sec'y, DOC, 643 F.3d 907, 932 (11th Cir. 2011), Johnson's counsel's "investigation into Johnson's family background consisted of talking with Johnson's father, and `that's about the extent of it.' When Johnson's father denied having been an abusive alcoholic, [trial counsel] accepted the father's denial without checking with any other family member, several of whom were ready, willing, and able to testify that Johnson was telling the truth about his abusive upbringing." Id. Moreover, noted the court, "[t]his is not a case in which counsel relied on what his client told him, or failed to tell him, about his background. It is, instead, a case in which counsel failed to adequately investigate what his client did tell him." Id. at 933 (citations omitted).
Similarly, in Ferrell v. Hall, 640 F.3d 1199, 1231 (11th Cir. 2011), the court noted that "because of counsel's limited character investigation-which asked, essentially, only whether Ferrell was trustworthy and had a good reputation-counsel did not uncover readily available mitigating evidence of Ferrell's powerful mental health issues or his abused and difficult childhood, and failed to adequately utilize the witnesses who did testify on his behalf. Nor did counsel's approach reveal anything to suggest that a more comprehensive investigation would have been fruitless." Id. at 1231.
In Porter v. McCollum, 558 U.S. 30, 39 (2009), the Supreme Court noted that "counsel did not even take the first step in interviewing witnesses or requesting records." Porter, 558 U.S. at 39 (citations omitted). "Counsel thus failed to uncover and present any evidence of Porter's mental health or mental impairment, his family background, or his military service. The decision not to investigate did not reflect reasonable professional judgment." Id. at 40.
Daniel's trial counsel presented a variety of mitigating evidence through Carolyn Daniel's testimony. Daniel's case, then, is not one of altogether forgoing investigation or failing to present any mitigating evidence. See White v. Singletary, 972 F.2d 1218, 1225 (11th Cir. 1992) (finding that "[a] lawyer can almost always do something more in every case — the Constitution requires a good deal less than maximum performance."). That such mitigating evidence was presented through one witness's testimony does not defeat the wealth of evidence or the jury's ability to hear it. See Cullen v. Pinholster, 131 S.Ct. 1388, 1406 (2011) (finding that the Ninth Circuit misapplied Strickland because it "drew from [the Court's] cases a constitutional duty to investigate and the principle that it is prima facie ineffective assistance for counsel to abandon their investigation of the petitioner's background after having acquired only rudimentary knowledge of his history from a narrow set of sources.").
Daniel argues that "the CCA also made the unreasonable factual determination that the allegations concerning Daniel's childhood abuse were cumulative of the meager evidence presented at trial." Reply Brief p. 48 (doc. 23). In Daniel's case, however, the jury heard that Daniel's stepfather had on one occasion abused him so badly that he suffered a damaged kidney for which he had to go to the hospital. Moreover, the jury heard that as a result of this abuse, a court ordered Daniel to be removed from his mother and step-father's home. Additionally, Carolyn Daniel testified that the abuse was ongoing. Daniel was separated from his siblings, Daniel was moved to a boys' home where he stayed for ten months, then returned to his mother's home where he began using alcohol and marijuana at age 16. Considering the amount of mitigating evidence Daniel's counsel presented in the penalty phase of his trial, the court cannot determine that Daniel's counsel's failure to present more extensive details concerning the mitigating evidence already presented was an unreasonable decision. Moreover, the court disagrees with Daniel's contention in his Reply Brief that the ACCA erred in finding that Daniel did not plead how the additional evidence would be mitigating because Daniel pleaded that Martha Loring could have testified about the effects of Daniel's upbringing. That an expert like Loring could have testified about the impact of the abuse Daniel suffered does not establish that such evidence in itself would have been mitigating in addition to the mitigating evidence that had already been presented. And, as to Daniel's claim that the ACCA erred in finding that counsel was not ineffective for failing to present evidence of Daniel's non-violent character, this court finds that the ACCA's determination was not unreasonable because the jury had already found Daniel guilty of capital murder.
Daniel also argues that the ACCA erred in addressing each piece of mitigating evidence, rather than the overall prejudicial effect of trial counsel's alleged deficiencies. Reply p. 51 (doc. 23). This, Daniel claims, was an unreasonable application of Williams. Yet the ACCA did not err in determining that Daniel's cumulative error argument failed after thoroughly analyzing each of Daniel's arguments and finding that each was unavailing. See United States v. Murray, 154 Fed. Appx. 740, 745 (11th Cir. 2005) ("To establish cumulative error, each alleged incident must constitute error in itself. . . .).
While Daniel has failed to establish that the ACCA made unreasonable determinations of fact or unreasonably applied Supreme Court precedent in deciding that trial counsel did not perform deficiently, Daniel also cannot establish that he was prejudiced as a result of trial counsel's alleged deficiencies. In his habeas petition, Daniel claims that trial counsel's alleged deficiencies prejudiced him because "[a]s a result of Trial Counsel's gross ineffectiveness, the jury never heard of the chronic physical and sexual abuse Mr. Daniel suffered at the hands of Mrs. Daniel's second husband, despite obvious indications of the presence of such evidence. . . . Had available mitigating evidence been presented, there exists a reasonable probability that Mr. Daniel would have been sentenced to life without possibility of parole." Habeas Petition p. 26 (doc. 1). However, this evidence was presented as Carolyn Daniel testified that Daniel was severely abused as a child by his stepfather, that the abuse was ongoing because she was unaware of the abuse for a long time, and that it was serious enough that the Department of Human Resources removed not only Daniel but also his sisters from the home immediately. C.R. Vol. 7, Tab 20, p. 899. Moreover, the court finds Daniel's argument here to be misleading as a change in one juror's vote would have resulted in a mistrial of the sentence hearing rather than a vote for life imprisonment.
Id. at §13A-5-46(g).
As to prejudice, Daniel further argues that "[h]ad the wealth of available mitigating evidence been presented on Mr. Daniel's behalf, there is a reasonable probability that the Court would not have accepted a sentence of death. At the sentencing phase of trial, the Court expressly noted that the `only mitigating evidence offered during the sentencing phase was that — the defendant's background was that his father died in 1978 when he was three years old.' . . . Had the Court . . . been made aware of all the other circumstances of this case that militate strongly against Daniel's execution, including Daniel's horrific childhood. . . there is a substantial likelihood that it would not have sentenced Daniel to death." Habeas Petition p. 26 (doc. 1). Yet Daniel's allegation here is simply incorrect. In discussing the non-statutory mitigating circumstances pursuant to Ala. Code § 13A-5-52, the state trial court also relied on the following mitigating evidence in determining Daniel's sentence:
C.R. Vol. 23, Tab 58, pp. 15-16.
Daniel also argues, that "[t]here is simply no reason to think that if Trial Counsel had simply asked the same question that current counsel asked — `In addition to the physical abuse, did Renard experience any other kind of abuse growing up?' — their answers would have been different. Nor can there be any doubt that this information should have been presented to the jury during the penalty phase at Mr. Daniel's trial." Habeas Petition pp. 26-27 (doc. 1) (citations omitted). Yet trial counsel asked Carolyn an open-ended question about Daniel's childhood abuse, to which she could have easily responded about the sexual abuse. See C.R. Vol. 7, Tab. R. 20, p. 898-99 ("During his childhood was there any abuse that was inflicted upon your son?"; "Would you share the abuse that you learned that Renard experienced during the time that he was a child?"). Indeed, given that Carolyn Daniel was begging for her son's life and that she did not hide any of the other horrendous abuse Daniel suffered, the court sees no reason why she would have held back from testifying about the alleged sexual abuse had she been willing to do so.
In sum, the court finds that there is no reasonable probability that had the evidence that Daniel alleged was absent from the penalty phase been adduced at trial, the result of the proceeding would have been different. The court again notes that Carolyn Daniel testified that Daniel's step-father abused him, so much so on one occasion that Daniel ended up in the hospital with a damaged kidney, and that as a result of this abuse, Daniel was removed from their home. Daniel testified in his own defense during the guilt phase of his trial, testimony that the jury obviously discredited in finding him guilty of capital murder. Additionally, at the penalty phase, Daniel's claim, and his trial counsel's theory of the case, remained that he was innocent of the crime. Indeed, Carolyn Daniel testified that she did not believe that Daniel had committed the murders because of his non-violent character. Accordingly, introduction of the asserted mitigation evidence concerning why Daniel may have been more inclined to commit the crime would have run counter to the trial counsel's theory that Daniel did not, in fact, commit the crime. The court, then, disagrees that there exists a reasonable probability that the jury would not have sentenced Daniel to death had the additional evidence been presented.
Moreover, the statutory aggravating factors (that Daniel killed two people in one course of conduct, that Daniel committed the offense while under sentence of imprisonment, and that Daniel was previously convicted of a felony involving the use of threat or violence to another person) would not have been diminished by the introduction of the mitigation evidence Daniel cites in his habeas petition. See Collier v. Turpin, 177 F.3d 1184, 1203 (11th Cir. 1999) (noting that "in evaluating the probability that [the defendant's] jury would have rejected the death penalty, [the court] must not forget to balance the aggravating and mitigating factors that would have been before the jury in the absence of his counsel's errors") (quoting Strickland, 466 U.S. at 695). Accordingly, Daniel cannot establish that his trial counsel's alleged failure to produce additional mitigating evidence of the abuse Daniel suffered at the hands of his step-father prejudiced him.
Thus the court finds that the ACCA neither reached an unreasonable finding of fact nor reached a conclusion that was contrary to or an unreasonable application of Supreme Court precedent in regard to Daniel's claim that trial counsel failed to present available mitigating evidence to the jury and circuit court.
Respondent argues that "this claim is being raised as a claim under the part concerning penalty-phase ineffective assistance, rather than under the part concerning guilt-phase ineffective assistance." Response p. 14 (doc. 16) (emphasis in original). Daniel argues that although the headings of this claim are different, he presented the substance of this claim before the ACCA in that his "Rule 32 Petition alleged that trial counsel failed to present mitigating evidence concerning Daniel's tragic life history that was readily available had counsel conducted meaningful interviews of Daniel's mother or older sister." Reply Brief p. 25 (doc. 23) (citations omitted). Daniel argues that he "does not assert any new claims that were not presented in the state court proceedings, and he presents the same factual basis for those claims." Id.
However, the basis of Daniel's legal claim here, that he was prejudiced by his trial counsel's failure to investigate at the penalty phase, was not presented to the ACCA. Rather, the ACCA's finding as to this claim was specifically limited to the guilt phase context: "Daniel had an extensive criminal record. If counsel had presented character evidence at the guilt phase, the State would have had the opportunity to rebut that evidence with proof of Daniel's bad character." Daniel v. State, 86 So. 3d at 419 (emphasis added). Thus, the ACCA found that Daniel asserted no clear issue of material fact as to counsel's ineffectiveness for failing to conduct interviews to produce character evidence at the guilt phase. Id. Clearly, then, the ACCA determination in this regard was limited to the introduction of this information at the guilt phase which the ACCA noted involved trial strategy concerns about whether to "open the door" to bad character evidence. Trial counsel was sure to, and did in fact, produce character evidence at the penalty phase. Accordingly, the factual and legal basis of this claim were not fairly presented to the ACCA, and the court finds that this claim is procedurally defaulted.
Even were the court to conclude that this claim is not procedurally defaulted, Daniel's arguments here are unpersuasive. Daniel argues that his "mother made a series of attempts to contact Mr. Hughes by phone and left several messages at his office. She eventually spoke with Mr. Hughes for just 20 minutes in the days before her son's trial." Habeas Petition p. 29 (doc. 1). Daniel further claims that when trial counsel failed to return Tammi Daniel's calls, she drove from Atlanta to Birmingham to try to speak with Hughes in person, but he did not meet her. Id. Daniel argues that had trial counsel met with his family he would have learned "that when Mr. Daniel was just 3 years old, he was present when his mother shot and killed his biological father, and that his stepfather emotionally, physically, and sexually abused Mr. Daniel, including forcing him to engage in sexual acts with his two older sisters when Mr. Daniel was less than ten years old." Id. at 29-30.
This court finds it was not unreasonable for trial counsel not to further investigate Daniel's background as counsel already had a wealth of mitigating evidence to present through Carolyn Daniel's testimony. Moreover, the court notes Daniel's statement in the letter to trial counsel dated February 28, 2003 which reads as follows: "Please be advised it is I who am to stand trial, and, quite frankly, am facing a sentence of such grave seriousness of the death sentence. Not my Mother. That said, it is "
