Filed: Apr. 09, 1996
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals, Eleventh Circuit. No. 94-6793. Walter HILL, Petitioner-Appellant, v. Ronald E. JONES, Commissioner, Alabama Department of Corrections, Respondent-Appellee. (No. CV-90-N-0713-S), Edwin L. Nelson, Judge. April 9, 1996. Appeal from the United States District Court for the Northern District of Alabama. Before HATCHETT, COX and BLACK, Circuit Judges. BLACK, Circuit Judge: Walter Hill, an Alabama inmate convicted of capital murder and sentenced to death, appeals the dis
Summary: United States Court of Appeals, Eleventh Circuit. No. 94-6793. Walter HILL, Petitioner-Appellant, v. Ronald E. JONES, Commissioner, Alabama Department of Corrections, Respondent-Appellee. (No. CV-90-N-0713-S), Edwin L. Nelson, Judge. April 9, 1996. Appeal from the United States District Court for the Northern District of Alabama. Before HATCHETT, COX and BLACK, Circuit Judges. BLACK, Circuit Judge: Walter Hill, an Alabama inmate convicted of capital murder and sentenced to death, appeals the dist..
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United States Court of Appeals,
Eleventh Circuit.
No. 94-6793.
Walter HILL, Petitioner-Appellant,
v.
Ronald E. JONES, Commissioner, Alabama Department of Corrections,
Respondent-Appellee. (No. CV-90-N-0713-S), Edwin L. Nelson, Judge.
April 9, 1996.
Appeal from the United States District Court for the Northern
District of Alabama.
Before HATCHETT, COX and BLACK, Circuit Judges.
BLACK, Circuit Judge:
Walter Hill, an Alabama inmate convicted of capital murder and
sentenced to death, appeals the district court's denial of his
petition for a writ of habeas corpus. Finding the district court
did not err in denying relief on these claims, we affirm.
I. BACKGROUND
A. The Crime
Walter Hill was convicted and sentenced to death for the
January 1977 murders of Willie Mae Hammock, John Tatum and Lois
Tatum in the Booker Heights community of Jefferson County, Alabama.
In 1976, while residing in Jefferson County, Hill frequently
gambled and drank at Willie Mae Hammock's home in Booker Heights.
At the time, Ms. Hammock operated what has been described as a
"shot house"—an illegal social club—out of her home. Ms. Hammock,
Toni Hammock, John Tatum, and Lois Tatum all lived in Ms. Hammock's
house. John Tatum, a 31-year-old retarded man, was the brother of
Lois Tatum. Toni, the 13-year-old ward of Ms. Hammock, was often
present at the house while patrons, including Hill, were gambling
and drinking.
Hill apparently developed a romantic interest in Toni and
quarreled with Ms. Hammock approximately two weeks before the
murders when Ms. Hammock refused to allow Toni to go with him to
California. On January 7, 1977, at approximately 4:30 in the
afternoon, Hill went to Ms. Hammock's home. Sometime after he
arrived, Ms. Hammock gave Hill a pistol which he had left there on
an earlier occasion. Hill asked whether he could marry Toni, but
Ms. Hammock refused her permission.
Shortly thereafter, when Ms. Hammock turned to enter a closet
in a front bedroom, Hill followed and shot her in the back of the
head with his pistol. Proceeding to the dining room, Hill shot
John Tatum twice in the head. Hill then chased down Lois Tatum and
shot her in the back of the head as well. Hill told Toni, who had
witnessed the shootings, he had "one more to kill." Hill was
referring to Toni's 16-year old brother Robert.
Hill and Toni drove to another house to get Robert. Robert
got into the car with Hill and Toni, but threatened to jump from
the car when Hill was evasive about their destination. Hill told
Robert he would "put a bullet in his head" if he attempted to
escape. Hill, Toni, and Robert then drove to Georgia where their
car broke down. At that point, Robert escaped and returned to
Birmingham where he discovered the bodies of Ms. Hammock and the
Tatums.
After Robert escaped, Hill and Toni walked into a residential
neighborhood in Decatur, Georgia where they encountered Lewis
Nunnery. Hill and Toni told Nunnery they needed assistance getting
their car repaired, and Nunnery agreed to help. After the three of
them got into Nunnery's car, Hill ordered Nunnery to drive them to
South Carolina. Hill told Nunnery that he was a fugitive from
Alabama who had just killed three people and would kill again.
Hill warned he would kill the police or anyone else who tried to
stop him.
Hill forced Nunnery on a drive that took them through South
Carolina and Tennessee. After their car overheated and broke down
in North Carolina, Hill fell asleep and Nunnery escaped. Nunnery
reported his abduction to the police, and Hill was arrested in the
disabled car on the side of the road. Police found the pistol with
which Hill had killed Ms. Hammock and the Tatums in his pocket.
At the time of his arrest, Hill was 45 years old and had spent
most of his adult life incarcerated. In 1952, Hill was convicted
of second-degree murder in an Alabama state court and sentenced to
ten years' imprisonment. He was released from custody in 1960, but
a year later was convicted in federal court in Alabama of
kidnapping and interstate transportation of a stolen vehicle. He
received a 25-year sentence for the crime. While serving that
sentence in the federal penitentiary in Atlanta, Hill was convicted
of stabbing another inmate to death and was sentenced to an
additional five years in custody. Hill was paroled in 1975 after
having served approximately 13 years of his federal sentences. He
returned to live in Birmingham where less than two years later he
committed the murders for which he is sentenced to death.
B. State Court Proceedings
In October 1977, Hill was convicted in Alabama circuit court
of capital murder in the killings of Ms. Hammock and the Tatums.
At the time, Hill was represented by attorneys William Short and
Jackie McDougal. Following a sentencing hearing, Judge Harry
Pickens sentenced Hill to death. The Alabama Court of Criminal
Appeals reversed the conviction after finding the prosecution had
improperly used "for cause" challenges to strike death-scrupled
jurors in violation of Witherspoon v. Illinois, 391 U.S. 510,
88
S. Ct. 1770,
20 L. Ed. 2d 776 (1968). See Hill v. State,
371 So. 2d
64, 67 (Ala.Crim.App.1979).
Hill was tried a second time for capital murder before Judge
Pickens beginning on August 21, 1979. At his second trial, Hill
was represented by McDougal and Robert Boyce. Hill was again
convicted of capital murder, and Judge Pickens conducted a
sentencing hearing on September 14, 1979, at which he orally
sentenced Hill to death. Judge Pickens died before he could enter
a signed sentencing order.
Thereafter, Judge Gardner Goodwyn assumed Hill's case. Judge
Goodwyn held a de novo sentencing hearing on February 19, 1980, to
determine whether Hill should be sentenced to death or life without
parole. In preparation for this hearing, Judge Goodwyn read the
transcript of Hill's second guilt-phase trial in Judge Pickens'
court. Following the hearing, Judge Goodwyn made separate findings
of fact concerning relevant aggravating and mitigating
circumstances. Judge Goodwyn found the evidence supported three
statutory aggravating circumstances: (1) the murders were
"especially heinous, atrocious or cruel," (2) Hill knowingly
created a "great risk of death to many persons," and (3) Hill had
been convicted of several prior violent felonies. Finding no
mitigating circumstances, Judge Goodwyn sentenced Hill to death.
Represented by McDougal and Boyce, Hill appealed his second
conviction and death sentence to the Alabama Court of Criminal
Appeals. The appeals court reversed Hill's conviction citingBeck
v. Alabama, 447 U.S. 625,
100 S. Ct. 2382,
65 L. Ed. 2d 392 (1980),
where the Supreme Court held unconstitutional a portion of the
Alabama death penalty statute under which Hill was convicted. Hill
v. State,
407 So. 2d 567 (Ala.Crim.App.1981). The Supreme Court of
Alabama denied certiorari. Hill v. State,
407 So. 2d 567
(Ala.1981). Neither McDougal nor Boyce represented Hill in any
proceeding after the petition for certiorari in the Alabama Supreme
Court.
The State of Alabama petitioned the United States Supreme
Court for certiorari, arguing the Beck decision did not invalidate
Hill's conviction and sentence. On June 14, 1982, the Supreme
Court vacated and remanded in light of Hopper v. Evans, 456 U.S.
605,
102 S. Ct. 2049,
72 L. Ed. 2d 367 (1982). Alabama v. Hill,
457
U.S. 1114,
102 S. Ct. 2920,
73 L. Ed. 2d 1325 (1982). After review,
the Alabama Court of Criminal Appeals affirmed Hill's conviction
and sentence. Hill v. State,
455 So. 2d 930 (Ala.Crim.App.1984).
The Alabama Supreme Court affirmed, Ex parte Hill,
455 So. 2d 938,
939 (Ala.1984), and the United States Supreme Court denied
certiorari. Hill v. Alabama,
469 U.S. 1098, 1098,
105 S. Ct. 607,
608,
83 L. Ed. 2d 716 (1984). On his final petition to the United
States Supreme Court on direct appeal, only attorney Alan W. Howell
represented Hill.
On December 5, 1985, Howell filed a petition for writ of error
coram nobis on Hill's behalf in the Circuit Court of Jefferson
County, Alabama. The petition raised only one claim: that the
prosecution withheld exculpatory evidence from Hill's trial counsel
in violation of Brady v. Maryland, 373 U.S. 83,
83 S. Ct. 1194,
10
L. Ed. 2d 215 (1963). On January 21, 1987, Circuit Judge James
Garrett held an evidentiary hearing on Hill's Brady claim. Judge
Garrett denied the claim by written order. The Alabama Court of
Criminal Appeals affirmed, Hill v. State,
541 So. 2d 83
(Ala.Crim.App.1988), and the Alabama Supreme Court denied
certiorari, Ex parte Hill,
562 So. 2d 315 (Ala.1989).
On petition for certiorari to the United States Supreme Court,
Hill argued for the first time that his death sentence rested on
the "especially heinous, atrocious or cruel" aggravating
circumstance which had been applied in an unconstitutionally vague
manner in violation of Godfrey v. Georgia, 446 U.S. 420,
100 S. Ct.
1759,
64 L. Ed. 2d 398 (1980) and Maynard v. Cartwright,
486 U.S.
356,
108 S. Ct. 1853,
100 L. Ed. 2d 372 (1988). The Supreme Court
denied certiorari on October 2, 1989. Hill v. Alabama,
493 U.S.
874,
110 S. Ct. 208,
107 L. Ed. 2d 161 (1989).
In March 1990, Hill filed a second petition for collateral
relief in the Alabama trial court under Rule 20 of the Alabama
(Temporary) Rules of Criminal Procedure.1 In his petition, he
listed twelve claims, including the Brady claim denied in his 1985
1
Temporary Rule 20 is now codified as Rule 32 of the Alabama
Rules of Criminal Procedure.
coram nobis petition. He also raised for the first time claims of
ineffective assistance of trial and appellate counsel. Without
holding an evidentiary hearing, Judge Garrett dismissed all but the
Brady claim as barred under Alabama's "successive petition rule"
codified in Temporary Rule 20.2(b). As for the Brady claim, he
found it factually insufficient and concluded Hill was attempting
to reargue an issue previously litigated in the 1985 coram nobis
petition.
C. District Court Proceedings
Hill, represented by attorneys Howell and Oliver Loewy, filed
a petition for habeas corpus in the district court for the Northern
District of Alabama on April 12, 1990. On April 17, 1990, the
district court ordered Hill to make any amendments adding new
claims to his petition within 30 days. Hill filed his amended
petition by the deadline, asserting seventeen grounds for relief.
In its answer, the State of Alabama (the State) countered that most
of Hill's claims, including those alleging ineffective assistance
of counsel, were procedurally defaulted under Alabama law. Hill
responded to the State's procedural default defense in a footnote
of his reply brief.
Seven months later, the court sua sponte issued an order
questioning Hill's cursory reply to the State's procedural default
defense. The court directed the parties to review and present
additional argument and authority on the default issues raised in
Hill's petition. The court further noted that, in light of the
State's argument that most of Hill's claims were procedurally
defaulted, Hill may desire to claim Howell was ineffective in
failing to present those claims in Hill's 1985 coram nobis
petition. On March 22, 1991, Howell withdrew from the case so as
"to permit Mr. Hill to more clearly present issues critical to his
case." Loewy continued to represent Hill. By August 21, 1991,
Hill had not alleged his collateral counsel was ineffective, and
the court therefore assumed Hill had raised all the issues he
intended to present.
The court still instructed Hill to file a supplemental brief
on the issue of procedural default. Citing Coleman v. Thompson,
501 U.S. 722,
111 S. Ct. 2546,
115 L. Ed. 2d 640 (1991) and Johnson v.
Singletary,
938 F.2d 1166 (11th Cir.1991) (en banc), cert. denied,
506 U.S. 930,
113 S. Ct. 361,
121 L. Ed. 2d 274 (1992), the court
ordered Hill to address what effect, if any, these decisions had on
his claims. In his supplemental brief, Hill raised three general
arguments against finding most of his claims procedurally
defaulted.2 First, he argued that because this was his initial
federal petition, he was entitled to an evidentiary hearing on his
claims regardless of their status under state law. Second, he
contended the State did not adequately compensate his coram nobis
counsel or provide sufficient funds to investigate and present all
viable claims in 1985. Third, he argued it would be manifestly
unjust to bar review of his claims on procedural grounds.
On April 13, 1994, the district court dismissed Hill's claims
and denied his petition without a hearing. In a
2
Hill also argued claims of ineffective assistance of
appellate counsel were not cognizable in Alabama coram nobis
proceedings in 1985. Since this cause argument is particular to
the ineffective assistance claim, we will address it in section
II.B, infra.
thoroughly-researched and carefully-reasoned order, the court found
twelve of Hill's claims were procedurally defaulted, and determined
that Hill had failed to demonstrate cause and prejudice or manifest
injustice excusing the defaults. The court concluded the remainder
of Hill's claims, while not procedurally barred, were without
merit.
Fifteen days after the court denied Hill's petition, Mr. Loewy
moved to withdraw as Hill's counsel, and Barry Fisher and Palmer
Singleton filed a notice of appearance on Hill's behalf. Hill's
new counsel contemporaneously filed a "Second Amended Petition" for
habeas corpus, as well as motions to alter or amend judgment and
for an evidentiary hearing. In these pleadings, Hill raised
several new arguments rebutting the State's procedural default
defense. The district court struck the second amended petition and
supplemental evidentiary materials as untimely in light of the
court's April 17, 1990, order. The court further denied as
dilatory Hill's motions to amend its judgment and for an
evidentiary hearing.
Hill now appeals the district court's denial of his petition.
II. DISCUSSION
At the outset, we note several arguments concerning
procedural default which Hill attempted to raise in the district
court through his untimely post-judgment motions reappear in his
briefs and argument before this Court. As a general rule, we will
not entertain issues or arguments on appeal that were not fairly
presented to the district court. Depree v. Thomas, 946 F.2d 784,
793 (11th Cir.1991); White v. State of Fla., Dept. of Corrections,
939 F.2d 912, 914 (11th Cir.1991), cert. denied,
503 U.S. 910,
112
S. Ct. 1274,
117 L. Ed. 2d 500 (1992); Campbell v. Wainwright,
738
F.2d 1573, 1575-76 (11th Cir.1984), cert. denied,
475 U.S. 1126,
106 S. Ct. 1652,
90 L. Ed. 2d 195 (1986). In its April 17, 1990,
order and several hearings with Hill and his attorneys, the
district court ordered Hill to raise all claims and arguments early
in the review process. The court went so far as to single out the
question of procedural default for special attention by the
parties.
After more prodding by the district court, Hill filed a
supplemental brief on procedural default on September 20, 1991. As
noted above, he relied only upon this being his first federal
petition, the lack of state funding for his coram nobis counsel,
and a contention of manifest injustice to rebut the State's
procedural default defense. He did not attempt to apprise the
court of any new arguments on procedural default in the nearly two
and a half years between his filing of this brief and the district
court's judgment. Thus, he had ample opportunity to raise several
of the new theories he now relies upon, but failed to do so.
Although we will discuss these new arguments below, we
emphasize that even if they had merit, we would not grant relief on
these grounds. Capital habeas cases present district courts with
complex and sometimes novel issues in subjects such as procedural
default, cause and prejudice, and retroactivity. Given the time
district courts must invest in researching and reviewing such
questions, courts must, as in this case, define early in the
process the issues they face in ruling on a petition. A court is
not obliged to stand by as successive teams of attorneys cull the
record and conjure up new arguments for the court to consider.3 At
some point, the court has to assume the parties have made their
arguments, and it can begin resolving the disputed issues. The
district court in this case gave Hill ample opportunity to raise
all the arguments he intended to present before proceeding to rule
on his petition. The district court correctly refused to consider
Hill's untimely arguments, and we will not sanction Hill's effort
to circumvent this ruling on appeal.
With this in mind, we turn to Hill's claims on appeal.
Although Hill listed seventeen claims in his petition before the
district court, he has narrowed his appeal to six. We find only
3
We note the attorneys who filed the post-judgment motions
in district court on Hill's behalf, Barry Fisher and Palmer
Singleton, were the third and fourth attorneys to represent Hill
in his state and federal collateral petitions. In an affidavit
filed with the district court, Fisher claims he agreed to
represent Hill in March 1994 and was reviewing the record in this
case when the district court entered its order denying Hill's
petition. According to Fisher, his review of the record and
additional legal research uncovered issues and claims which he
felt should have been raised in Hill's amended petition filed on
May 17, 1990. He felt obligated to present these claims and
arguments in the second amended petition and motion to amend the
judgment filed two weeks after the district court's decision.
While Fisher allegedly uncovered issues prior counsel
overlooked, the fact remains the second amended petition and
the arguments in support of it were untimely. Hill's
petition had been pending for four years at the time the
district court issued its ruling. Hill had ample
opportunity to amend his petition and raise pertinent
arguments in support thereof. Though Fisher and Singleton
appear to have acted with dispatch once they took up Hill's
case, their late entry into the proceedings did not require
the district court to postpone its review of the amended
petition and await the views of these new attorneys. When
they accepted Hill's case, Fisher and Singleton were bound
by the district court's orders, the procedural posture of
the case, and the decisions of Hill's prior counsel on what
arguments to make to the court.
four claims merit discussion. 4 In them, Hill alleges: (A)
ineffective assistance of trial counsel based on his counsel's
purported failure to conduct an adequate pre-trial investigation,
object to errors of the Alabama trial court, and present evidence
of mitigating circumstances during Hill's sentencing hearing; (B)
ineffective assistance of appellate counsel in failing to challenge
two aggravating circumstances relied upon by the Alabama trial
court in sentencing Hill to death; (C) his death sentence is
unconstitutional under Beck because he was precluded from
presenting evidence in support of jury instructions on
lesser-included offenses; and (D) the prosecutor at his 1979
murder trial used his peremptory challenges to strike African-
American citizens from the jury panel in violation of Swain v.
Alabama, 380 U.S. 202,
85 S. Ct. 824,
13 L. Ed. 2d 759 (1965).
A. Ineffective Assistance of Trial Counsel
Hill argues the district court erred in dismissing his
ineffective assistance of trial counsel claim without first holding
an evidentiary hearing when no hearing had been held on the claim
4
Hill also asserts: (1) the three aggravating circumstances
found by the Alabama trial court support his death sentence were
either not supported by the facts of the crime or were applied in
an unconstitutional manner by the court; and (2) he was denied a
reliable sentencing hearing because he was not permitted to
cross-examine certain state witnesses before the judge who
conducted the sentencing hearing in violation of Moore v. Zant,
885 F.2d 1497 (11th Cir.1989), cert. denied,
497 U.S. 1010,
110
S. Ct. 3255,
111 L. Ed. 2d 765 (1990) and Proffitt v. Wainwright,
685 F.2d 1227 (11th Cir.1982), modified,
706 F.2d 311 (11th
Cir.), cert. denied,
464 U.S. 1002,
104 S. Ct. 508,
78 L. Ed. 2d 697
(1983).
We find these claims were procedurally defaulted and
Hill has failed to demonstrate either cause or manifest
injustice to excuse the bar. Hence, we affirm the district
court's dismissal of these claims.
in state court. Hill contends his trial counsel's failure to
investigate and present mitigating evidence, in combination with
other alleged errors, rendered their assistance constitutionally
ineffective within the meaning of Strickland v. Washington, 466
U.S. 668,
104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984).5
Hill first raised a Strickland claim in his Rule 20 petition,
which was his second state collateral attack on his conviction and
5
In the district court, Hill alleged the following errors of
McDougal and Boyce in support of his claim of ineffective
assistance of trial counsel: (1) failure to conduct an adequate
pre-trial investigation of the crime and Hill's background; (2)
failure to raise a Swain challenge to the prosecutor's use of
peremptory challenges; (3) failure to obtain exculpatory
evidence in the hands of the prosecution; (4) failure to
challenge the prosecution's alleged improper guilt-phase closing
argument; (5) failure to challenge the aggravating circumstance
that the murders were "heinous, atrocious or cruel"; (6) failure
to challenge the aggravating circumstance that Hill had a prior
conviction for a violent felony; (7) failure to challenge the
aggravating circumstance that Hill had created a great risk of
death to many persons; (8) failure to challenge the sentencing
court's alleged reliance on the character of the victims in
sentencing Hill to death; (9) failure to challenge the
sentencing court's alleged refusal to consider non-statutory
mitigating circumstances; (10) failure to challenge the trial
court's denial of a jury hearing on whether the murders were
"heinous, atrocious or cruel" and whether Hill created a great
risk of death to many persons; (11) failure to challenge the
sentencing judge's alleged "presumption" in favor of death; (12)
failure to challenge the sentencing judge's alleged deference to
the jury having "fixed" Hill's sentence at death; (13) failure
to challenge the prosecution's introduction of an inaccurate copy
of Hill's 1967 homicide conviction; (14) eliciting damaging
testimony from Hill regarding his prior convictions during the
guilt phase of his trial; and (15) failure to challenge the
prosecution's elicitation of testimony from Hill regarding a
prior conviction.
On appeal, Hill cites his attorneys' failure to conduct
an adequate pre-trial investigation, failure to object to
the alleged Swain violation, decision to have Hill testify
during both the guilt and sentencing phases of his trial,
and failure to present mitigating evidence during the
sentencing phase of his trial in support of his ineffective
assistance of trial counsel claim.
sentence. By the time of his Rule 20 proceeding in 1990, Alabama
had codified its "successive petition rule":
The court shall not grant relief on a second or successive
petition on the same or similar grounds on behalf of the same
petitioner. A second or successive petition on different
grounds shall be denied unless the petitioner shows both that
good cause exists why the new ground or grounds were not known
or could not have been ascertained through reasonable
diligence when the first petition was heard, and that failure
to entertain the petition will result in a miscarriage of
justice.
Ala.Temp.R.Crim.P. 20.2(b).6 The Alabama trial court dismissed
Hill's ineffective assistance claim as procedurally barred because
Hill could have raised the claim in his 1985 state collateral
petition but failed to do so.
Federal courts may not review a claim procedurally defaulted
under state law if the last state court to review the claim states
clearly and expressly that its judgment rests on a procedural bar,
and the bar presents an independent and adequate state ground for
denying relief. Harris v. Reed, 489 U.S. 255, 260-61, 263,
109
S. Ct. 1038, 1042-43,
103 L. Ed. 2d 308 (1989). There are only two
exceptions to the procedural default rule. First, a petitioner may
gain federal review of an otherwise procedurally defaulted claim if
he can demonstrate both cause excusing the default and actual
prejudice resulting from the bar. Murray v. Carrier,
477 U.S. 478,
485,
106 S. Ct. 2639, 2644,
91 L. Ed. 2d 397 (1986); see Wainwright
6
Alabama Rule of Criminal Procedure 20.2(b) was enacted as a
temporary rule effective April 1, 1987. Toles v. Jones, 888 F.2d
95, 98 (11th Cir.1989), vacated,
905 F.2d 346 (11th Cir.1990),
reinstated,
951 F.2d 1200 (11th Cir.) (en banc), cert. denied,
506 U.S. 834,
113 S. Ct. 106,
121 L. Ed. 2d 65 (1992). The current
Rule 32.2(b) of the Alabama Rules of Criminal Procedure replaced
Rule 20.2(b) effective January 1, 1991, and contains language
identical to that of its predecessor.
v. Sykes,
433 U.S. 72, 87,
97 S. Ct. 2497, 2506,
53 L. Ed. 2d 594
(1977). Second, in extraordinary cases, a federal habeas court may
grant the writ without a showing of cause and prejudice to correct
a fundamental miscarriage of justice. See Engle v. Isaac,
456 U.S.
107, 135,
102 S. Ct. 1558, 1576,
53 L. Ed. 2d 594 (1982). To excuse
a default of a guilt-phase claim under this latter standard, a
petitioner must prove "a constitutional violation [that] has
probably resulted in the conviction of one who is actually
innocent."
Carrier, 477 U.S. at 496, 106 S.Ct. at 2649 (1986). To
gain review of a sentencing-phase claim based on manifest
injustice, a petitioner must show that "but for constitutional
error at his sentencing hearing, no reasonable juror could have
found him eligible for the death penalty under [state] law."
Sawyer v. Whitley,
505 U.S. 333, 346-48,
112 S. Ct. 2514, 2423,
120
L. Ed. 2d 269 (1992).
A state habeas petitioner is not entitled to an evidentiary
hearing in federal court on the merits of a procedurally defaulted
claim unless he can first overcome the procedural bar. This
requires showing either cause for failing to develop in state court
proceedings the facts supporting his claim, and prejudice resulting
from that failure, Keeney v. Tamayo-Reyes, 504 U.S. 1, 11-12,
112
S. Ct. 1715, 1721,
118 L. Ed. 2d 318 (1992); Weeks v. Jones,
26 F.3d
1030, 1043 (11th Cir.1994), cert. denied, --- U.S. ----,
115 S. Ct.
1258,
131 L. Ed. 2d 137 (1995), or a "fundamental miscarriage of
justice would result from failure to hold a federal evidentiary
hearing."
Tamayo-Reyes, 504 U.S. at 11-12, 112 S.Ct. at 1721. A
petitioner is not entitled to a hearing on the threshold issues of
cause and prejudice or manifest injustice without first proffering
specific facts which support a finding that one of these exceptions
to the procedural default rule exists. See Smith v. Wainwright,
741 F.2d 1248, 1261 (11th Cir.1984), cert. denied,
470 U.S. 1087,
105 S. Ct. 1853,
85 L. Ed. 2d 151 (1985).
Hill advances two arguments against finding his ineffective
assistance of trial counsel claim procedurally defaulted. Hill
initially contends Alabama's successive petition rule, as applied
in his case, is not an "independent and adequate" state ground for
denying the claim. Assuming we find Alabama's successive petition
rule supports the procedural bar, Hill claims he is still entitled
to a decision on the merits of the claim, and therefore an
evidentiary hearing, because the ineffectiveness of his coram nobis
counsel excuses his failure to raise a Strickland claim in his 1985
coram nobis petition.
1. Alabama's common law successive petition rule as an independent
and adequate ground for procedural default.
A state procedural rule cannot bar federal habeas review of
a claim unless the rule is "firmly established and regularly
followed." Ford v. Georgia, 498 U.S. 411, 423-24,
111 S. Ct. 850,
857,
112 L. Ed. 2d 935 (1991) (quoting James v. Kentucky,
466 U.S.
341, 348,
104 S. Ct. 1830, 1835,
80 L. Ed. 2d 346 (1984)); Cochran v.
Herring,
43 F.3d 1404, 1408 (11th Cir.1995), cert. denied, --- U.S.
----,
116 S. Ct. 776,
133 L. Ed. 2d 728 (1996). Prior to its
codification in 1987 as part of Temporary Rule 20, Alabama's
successive petition rule existed in the state's common law. See Ex
parte Cox,
451 So. 2d 235, 238-39 (Ala.1983); Waldon v. State,
284
Ala. 608,
227 So. 2d 122, 123 (1969); Ex parte Phillips,
277 Ala.
82,
167 So. 2d 165, 166 (1964). Thus, at the time Hill filed his
1985 petition, Alabama's successive petition rule existed only in
7
its common law form. Hill argues that at common law, Alabama
courts randomly invoked the rule and at times reviewed the merits
of new claims raised in successive petitions. Hill reasons that
because the rule was not "firmly established and regularly
enforced" at the time of his coram nobis proceedings, the rule
cannot support a procedural default of his Strickland claim.
A review of the pleadings before the district court reveals
Hill raised this argument for the first time in his motion to amend
the judgment filed two weeks after the court dismissed Hill's
petition. Since Hill did not properly present this argument to the
district court, he cannot rely on it to gain relief in this Court.
Alternatively, even if Hill had properly preserved this
argument, it would be unsuccessful given this Court's prior
holdings in Alabama capital habeas cases. On several occasions we
have upheld procedural defaults based on Alabama's common law
successive petition rule. See Kennedy v. Herring, 54 F.3d 678, 684
(11th Cir.1995);
Weeks, 26 F.3d at 1043; Toles v. Jones,
888 F.2d
95, 98-99 (11th Cir.1989), vacated,
905 F.2d 346 (11th Cir.1990),
reinstated,
951 F.2d 1200 (11th Cir.) (en banc), cert. denied,
506
U.S. 834,
113 S. Ct. 106,
121 L. Ed. 2d 65 (1992); Richardson v.
Johnson,
864 F.2d 1536, 1539-40 (11th Cir.), cert. denied,
490 U.S.
1114,
109 S. Ct. 3175,
104 L. Ed. 2d 1037 (1989). Implicitly, these
cases recognize Alabama's common law successive petition rule was
7
Hill's petition, however, was still pending in the Alabama
trial court on April 1, 1987, when Temporary Rule 20.2(b) came
into effect.
"firmly established and regularly followed" before it was codified
in Temporary Rule 20.2. In the face of this precedent, Hill's
argument must fail.
2. Coram nobis counsel's ineffectiveness as cause.
Given Alabama's successive petition rule is an independent and
adequate state ground for default, Hill must demonstrate either
cause and prejudice or manifest injustice to excuse the bar.
Relying on Coleman v. Thompson, 501 U.S. 722,
111 S. Ct. 2546,
115
L. Ed. 2d 640 (1991), Hill contends the ineffective performance of
his coram nobis counsel, Howell, excuses his failure to include his
Strickland claim in his 1985 state petition. As noted above,
Howell argued only the Brady claim on Hill's behalf in the coram
nobis proceedings.
As with his attack on the adequacy of Alabama's successive
petition rule, Hill failed to raise his cause argument premised on
Coleman until after the district court had rendered its final
judgment. As a result, we will not credit this argument on appeal.
Hill's failure to preserve this issue, however, is of no moment.
Our precedent precludes Hill from relying on the alleged
ineffectiveness of his collateral counsel to excuse the procedural
default of not only his Strickland claim, but any other claim he
failed to include in his coram nobis petition.
Hill's cause argument presumes he had a constitutional right
to counsel during the 1985 coram nobis proceedings. For counsel's
ineffectiveness to establish cause, i.e., be a factor external to
the defense, it must be attributable to the state. Coleman, 501
U.S. at 754, 111 S.Ct. at 2567. Such error can only be imputed to
the state when the Sixth Amendment requires the state furnish the
defendant with effective counsel. Id.; see
Carrier, 477 U.S. at
488, 106 S.Ct. at 2645. While defendants have a Sixth Amendment
right to counsel at trial and on direct appeal, they do not have a
corresponding right to counsel when collaterally attacking their
convictions. Pennsylvania v. Finley,
481 U.S. 551, 555,
107 S. Ct.
1990, 1993,
95 L. Ed. 2d 539 (1987). This is so even in capital
cases. Murray v. Giarratano,
492 U.S. 1, 10,
109 S. Ct. 2765, 2770,
106 L. Ed. 2d 1 (1989).
Hill contends Finley and Giarratano do not prevent him from
citing his coram nobis counsel's ineffectiveness as cause given the
peculiar posture of his Strickland claim. Hill could not have
asserted this claim on direct appeal because his trial counsel
represented him on appeal as well. Since the 1985 coram nobis
petition was Hill's first opportunity to assert a claim of
ineffective assistance of counsel, Hill reasons he was entitled to
constitutionally effective counsel in prosecuting that claim. In
Hill's view, his coram nobis counsel's ineffectiveness cost him his
one opportunity to raise a claim of ineffective assistance of
counsel in Alabama courts. Hill contends that under these
circumstances, his collateral counsel's ineffectiveness should
qualify as cause.
In Coleman, the Supreme Court faced a similar but distinct
situation. The petitioner inColeman raised a claim of ineffective
assistance of trial counsel in a Virginia habeas petition.
Coleman, 501 U.S. at 755, 111 S.Ct. at 2567. Under Virginia law at
the time of the petitioner's trial and direct appeal, ineffective
assistance of trial counsel claims could only be brought in state
habeas.
Id. (citing state authority). The state trial court
denied the petitioner's claim.
Id. at 727, 755, 111 S. Ct. at 2553,
2567. The petitioner's state habeas counsel then failed to perfect
a timely appeal of the denial.
Id. at 727-28, 111 S.Ct. at 2552-
53. As a result, the claim was procedurally defaulted under state
law, and presumptively barred from federal review.
Id. Like Hill,
the Coleman petitioner argued his habeas attorney's ineffectiveness
caused the default of his Strickland claim, and this
ineffectiveness should excuse the procedural bar.
Id. at 752-55,
111 S.Ct. at 2566-67.
Addressing this argument, the Supreme Court in Coleman
emphasized that "counsel's ineffectiveness will constitute cause
only if it is an independent constitutional violation." Id. at
755, 111 S. Ct. at 2567. The Court reiterated there was no right to
counsel in state collateral proceedings.
Id. The Court then
noted, but left unanswered, the question of whether "there must be
an exception to the rule of Finley and Giarratano in those cases
where state collateral review is the first place a prisoner can
present a challenge to his conviction."
Id. The Court found it
unnecessary to address this question because the petitioner in
Coleman had presented his Strickland claim to the Virginia trial
court, and that court ruled against him on the merits.
Id. at 755,
111 S. Ct. 2567-68. Hill claims his case fits the "exception" noted
in Coleman because unlike the petitioner in that case, Hill never
presented his ineffective assistance of counsel claim to the
Alabama trial court that heard his coram nobis petition. Thus,
Hill asserts his coram nobis counsel's ineffectiveness can serve as
cause to excuse the default of his ineffective assistance of trial
counsel claim because his coram nobis counsel's deficient
performance denied him his one opportunity to litigate this claim.
In several post-Coleman decisions, this Court has rejected the
proposition that collateral counsel's ineffectiveness can serve as
cause excusing a procedural default. In Toles, we concluded
ineffective assistance of collateral counsel cannot serve as cause
and cited Finley in support. Toles, 888 F.2d at 99-100.8
Likewise, in Weeks we again dismissed the argument that collateral
counsel's ineffectiveness can serve as cause excusing a procedural
default. In doing so, we noted:
The Supreme Court has clarified that attorney error or
ineffective assistance of counsel in a state collateral
proceeding is not cause to override a procedural bar that
precludes review of a claim in federal court.
Weeks, 26 F.3d at 1046 (citing
Coleman, 501 U.S. at 752-757, 111
S.Ct. at 2566-68).9
8
In reinstating the panel opinion in Toles, the en banc
court noted that the Supreme Court's holding in Coleman decided
the issue of whether collateral counsel's ineffectiveness could
serve as cause to excuse a procedural default. Toles, 951 F.2d
at 1201.
9
Like Hill, the petitioners in Weeks and Toles sought to
rely on ineffective assistance state collateral counsel to excuse
their default of ineffective assistance of counsel claims.
Weeks, 26 F.3d at 1042-46;
Toles, 888 F.2d at 97.
In Toles, the petitioner argued his coram nobis
counsel's ineffectiveness should excuse his failure to raise
a Strickland claim in his first state collateral petition.
Toles, 888 F.2d at 99. Like Hill, the petitioner in Toles
was represented by the same counsel at trial and on direct
appeal, and different counsel in his coram nobis proceeding.
Id. at 97. The coram nobis proceeding was therefore his
first opportunity to present a claim of ineffective
assistance of trial counsel. See id.
Thus, the possible exception to Finley and Giarratano the
Supreme Court noted in Coleman simply does not exist in this
circuit: a petitioner may not rely on his collateral counsel's
ineffectiveness to excuse the procedural default of a claim even
when the state collateral proceeding was the petitioner's first
opportunity to raise the claim. See also, Johnson v.
Singletary,
938 F.2d at 1174-75 (citing Coleman and rejecting argument that
collateral counsel's ineffectiveness could serve as cause). To
recognize such error as cause, we would have to find a petitioner
has a constitutional right to counsel in collateral proceedings.
Finley and Giarratano hold otherwise; and the Supreme Court
emphasized this point in Coleman. As in Toles and Weeks, we
decline to find an exception to the rule of Finley and Giarratano
that would allow Hill to cite his coram nobis counsel's
ineffectiveness as cause excusing his failure to raise a Strickland
claim in his 1985 coram nobis petition.
Since Hill's ineffective assistance of trial counsel claim is
procedurally defaulted and Hill has failed to show cause or
manifest injustice, the district court did not err in dismissing
this claim without a hearing.
B. Ineffective Assistance of Appellate Counsel
Hill contends McDougal and Boyce were constitutionally
ineffective when they failed to challenge on appeal two of the
Similarly, the state coram nobis petition was the first
opportunity for the petitioner in Weeks to assert a claim of
ineffective assistance of trial counsel. See Weeks, 26 F.3d
at 1033 (citing prior history indicating petitioner had same
counsel at trial and on appeal, but different counsel at
coram nobis).
aggravating circumstances relied upon by the Alabama court in
sentencing him to death. Hill believes that given the undisputed
facts of how Ms. Hammock and the Tatums died, Alabama law at the
time of his sentencing would not have permitted the state court to
find the murders "heinous, atrocious or cruel" or that Hill's
conduct created a great risk of death to many others. 10 Hill
concludes his attorneys' failure to challenge these aggravating
circumstances violated his constitutional right to effective
counsel on direct appeal. See Evitts v. Lucey, 469 U.S. 387, 396,
105 S. Ct. 830, 836,
83 L. Ed. 2d 821 (1985).
As with his claim of ineffective assistance of trial counsel,
Hill defaulted his appellate counsel claim by failing to assert it
in his 1985 coram nobis petition. Though Hill presents several
arguments supporting cause excusing this default, only one merits
discussion.11
Hill contends that claims of ineffective assistance of
appellate counsel were not cognizable in Alabama coram nobis
proceedings in 1985. If Alabama law prevented such a claim at the
time Hill filed his coram nobis petition, then the legal basis for
the claim was unavailable to Hill and he would not be barred from
10
Hill also contends that at the time he was sentenced,
Alabama's "heinous, atrocious or cruel" circumstance was
unconstitutionally vague according to Godfrey v. Georgia, 446
U.S. 420,
100 S. Ct. 1759,
64 L. Ed. 2d 398 (1980). Hill cites his
attorneys' failure to raise on appeal an "obvious" claim under
Godfrey as further evidence of their ineffectiveness.
11
Hill again proposes Alabama's common law successive
petition rule was not consistently enforced and therefore cannot
bar review of this claim. Hill also reiterates his belief that
ineffective assistance of coram nobis counsel amounts to cause.
We already addressed these arguments above, and found them waived
and without merit.
asserting it in his federal petition. Carrier, 477 U.S. at 488,
106 S.Ct. at 2645. A careful review of Alabama case law, however,
reveals an Alabama coram nobis court would have entertained a claim
of ineffective assistance of appellate counsel back in December
1985.
Prior to Hill's filing his state petition, Alabama courts had
stated generally that claims of ineffective assistance of counsel
were grounds for coram nobis relief. See Summers v. State, 366
So. 2d 336, 341 (Ala.Crim.App.1978), cert. denied,
366 So. 2d 346
(Ala.1979); Sheehan v. State,
411 So. 2d 824, 828
(Ala.Crim.App.1981). Hill does not contest that claims of
ineffective assistance of trial counsel were cognizable in 1985.
Rather, citing Cannon v. State,
416 So. 2d 1097 (Ala.Crim.App.1982),
Hill contends Alabama courts did not permit claims of ineffective
assistance of appellate counsel. In Cannon, the Alabama Court of
Criminal Appeals stated "allegations of inadequacy of appeal
counsel are not within the scope of coram nobis," but cited no
authority in support.
Cannon, 416 So. 2d at 1100. In 1991, the
same court characterized this language in Cannon as "dicta" and
counseled the statement "should not be interpreted to limit the
ability of the trial court to hear a claim of ineffective
assistance of appellate counsel." Tedder v. State,
586 So. 2d 50,
53 (Ala.Crim.App.1991).12
Hill argues Tedder's "clarification" of Cannon and Alabama law
12
Cannon 's dicta was cited in only one case prior to
Tedder. See Holsclaw v. State, 481 So. 2d 445, 446 n. 2
(Ala.Crim.App.1985). In Holsclaw, however, the reference to
Cannon was likewise dicta because the alleged attorney error in
Holsclaw occurred pre-judgment. See
id. at 446.
came too late to permit him to assert a claim of ineffective
assistance of appellate counsel. According to Hill, Cannon 's
statement created, at a minimum, confusion as to whether claims
concerning ineffectiveness of appellate counsel were cognizable
throughout the time his petition was pending in state trial and
appellate courts. Hence, he claims he cannot be faulted for
failing to include such a claim in his coram nobis petition.
Hill's argument gives Cannon's statement weight it does not
deserve. As the Tedder court recognized, Cannon 's comment on
ineffective assistance of appellate counsel claims was dicta given
the nature of the claims raised in Cannon. Moreover, Cannon 's
unsupported statement is inconsistent with prior and subsequent
decisions in which Alabama courts entertained claims in coram nobis
proceedings premised on alleged post-judgment errors by counsel.
See, e.g., Ex parte Dunn, 514 So. 2d 1300 (Ala.1987) (failure to
file briefs in support of appeal); Jones v. State,
495 So. 2d 722
(Ala.Crim.App.1986) (failure to timely perfect appeal by filing
transcript of trial), cert. denied,
514 So. 2d 1068 (1987)13; Dawson
v. State,
480 So. 2d 18 (Ala.Crim.App.1985) (failure to perfect
appeal); Traylor v. State,
466 So. 2d 185 (Ala.Crim.App.1985)
(failure to file motion for rehearing after conviction affirmed by
court of appeals); Harrison v. State,
461 So. 2d 53
13
Although Dunn and Jones were decided after Hill filed his
coram nobis petition in 1985, these decisions were handed down
while Hill's petition was still pending in the Alabama trial
court. Jones was decided September 9, 1986, prior to the Alabama
trial court's January 21, 1987 hearing on Hill's petition. The
Alabama Supreme Court issued its opinion in Dunn six months
before the trial court issued its first order denying Hill's
coram nobis petition in March 1988.
(Ala.Crim.App.1984) (failure to file brief in support of appeal);
Moffett v. State, 457 So. 2d 990 (Ala.Crim.App.1984) (failure to
comply with the requirements of Anders v. California,
386 U.S. 738,
87 S. Ct. 1396,
18 L. Ed. 2d 493 (1967) in filing no merit letter);
Chappell v. State,
457 So. 2d 995 (Ala.Crim.App.1984) (failure to
file brief in support of appeal); Gwin v. State,
456 So. 2d 845
(Ala.Crim.App.1984) (advising petitioner to dismiss direct appeal);
Thomas v. State,
373 So. 2d 1264 (Ala.Crim.App.1979) (allegation
that counsel had "not properly represented" petitioner on appeal);
Brutley v. State,
358 So. 2d 527 (Ala.Crim.App.1978) (failure to
timely file transcript of trial with appellate court); Messelt v.
State,
351 So. 2d 627 (Ala.Crim.App.1977) (failure to timely file
transcript of trial with appellate court).14
14
Hill contends Alabama courts distinguished between claims
where counsel failed to perfect an appeal, and claims grounded on
an appellate attorney's failure to raise certain issues.
According to Hill, Alabama courts granted collateral relief on
claims of the former type, but not the latter.
In Longmire v. State, 443 So. 2d 1265 (Ala.1982), the
Alabama Supreme Court held the petitioner was entitled to an
"out-of-time" appeal when his attorney failed to perfect a
direct appeal of his conviction. Longmire, 443 So. 2d at
1269. Following Longmire, Alabama courts regularly granted
coram nobis petitioners out-of-time appeals when their
attorneys failed to perfect an appeal. See, Ex parte
Sturdivant, 460 So. 2d 1210, 1212 (Ala.1984), cert. denied,
484 U.S. 862,
108 S. Ct. 180,
98 L. Ed. 2d 133 (1987); Rodgers
v. State, 453 So. 2d 769, 770 (Ala.Crim.App.1984); Peterson
v. State, 428 So. 2d 201, 202 (Ala.Crim.App.1983). Hill
argues Alabama courts deemed the failure to perfect an
appeal a trial error rather than an appellate error. Thus,
in Hill's view, Alabama courts would grant relief on these
claims because they were not attributable to appellate
counsel.
The district court cited Longmire in concluding claims
of ineffective assistance of counsel were cognizable in
coram nobis proceedings in 1985. Hill contends the court
erred in relying on Longmire because his claim is not a
As these cases indicate, Alabama courts reviewed claims based
on alleged errors of appellate counsel prior to Hill's filing his
coram nobis petition in December 1985. In Dawson v. State, a case
decided five months before Hill filed his coram nobis petition, the
"Longmire " claim: he does not contend his attorneys erred
in failing to timely perfect an appeal. Rather, he faults
his attorneys for not raising a particular claim—a challenge
to the trial court's reliance on two aggravating
circumstances.
Hill's distinction between "Longmire " claims and
claims based on other appellate errors is not supported by
Alabama case law. His argument ignores the cases cited
above in which Alabama courts entertained coram nobis claims
premised on errors of appellate counsel occurring after a
timely appeal had been perfected. Although the courts in
these cases did not state generally that claims of
ineffective assistance of appellate counsel were within the
bounds of coram nobis, neither did the courts dismiss these
claims as being beyond the scope of the writ. We do not
agree with Hill's suggestion that a state court had to
affirmatively recognize the viability of an ineffective
assistance of appellate counsel claim on coram nobis for him
to be held accountable for omitting it from his petition.
Hill's argument also mischaracterizes the decision in
Longmire. Contrary to Hill's suggestion, the case did not
create a distinct subclass of ineffective assistance of
counsel claims cognizable on coram nobis because the errors
were deemed errors of trial counsel rather than appellate
counsel. In Jones v. State, 495 So. 2d 722
(Ala.Crim.App.1986), the court of appeals reviewed a coram
nobis claim based on an attorney's failure to perfect a
direct appeal by timely filing a copy of the trial
transcript with the appeals court. Jones, 495 So. 2d at 723.
Although the court cited Longmire for support in granting an
out-of-time appeal, it did not reason it could do so only
because the petitioner presented a trial counsel claim. See
id. at 723-25. Instead, citing Evitts, it noted defendants
have the right to effective assistance of appellate counsel.
Id. at 724. The Jones court further reasoned "the failure
of counsel to perfect an appeal, resulting in the
foreclosure of state appellate review, is a denial of
constitutionally effective counsel." Id. Contrary to
Hill's reading of Longmire, Jones suggests that Alabama
courts granted out-of-time appeals in failure to perfect
cases because such an error was per se ineffective
assistance—regardless of whether it was considered error at
the trial or appellate level.
court stated "[t]he improper denial of a defendant's constitutional
rights to appeal or to the effective assistance of counsel on
appeal constitutes proper grounds for coram nobis." Dawson, 480
So. 2d at 19. If the failure of McDougal and Boyce to challenge the
aggravating circumstances was as egregious an error as Hill now
makes it out to be, then he should have been aware of the error at
the time he filed his coram nobis petition. From the United States
Supreme Court's decisions in Evitts, Anders, and Strickland, Hill
knew he was entitled under the Constitution to effective assistance
of appellate counsel. Had Hill filed this claim, the Alabama
courts would have reviewed its merits.15
We therefore disagree with Hill's reliance on Cannon 's dicta
to argue the Alabama coram nobis court would not have entertained
his claim of ineffective assistance of appellate counsel. Since
Hill has failed to show cause or manifest injustice excusing the
procedural default of this claim, he was not entitled to an
evidentiary hearing in the district court.
C. Beck Claim
Hill was convicted of capital murder under Ala.Code § 13-11-
2(a) (1975) (repealed) which precluded Alabama courts from
instructing juries on lesser included offenses in capital cases.
In Beck v. Alabama, 447 U.S. 625,
100 S. Ct. 2382,
65 L. Ed. 2d 392
(1980), the Supreme Court found the preclusion clause of Ala.Code
15
Indeed, Alabama courts entertained an ineffective
assistance of appellate counsel claim in a coram nobis petition
filed by another Alabama death row inmate six months before Hill
filed his petition. See Waldrop v. State, 523 So. 2d 475, 476
(Ala.Crim.App.1987), cert. denied,
488 U.S. 871,
109 S. Ct. 184,
102 L. Ed. 2d 154 (1988); Waldrop v. Thigpen,
857 F. Supp. 872, 889
(N.D.Ala.1994), aff'd,
77 F.3d 1308 (11th Cir.1996).
§ 13-11-2(a) unconstitutional because under the Eighth Amendment a
jury must be "permitted to consider a verdict of guilt of a lesser
included non-capital offense" in cases in which "the evidence would
have supported such a
verdict." 447 U.S. at 627, 100 S.Ct. at
2384. Hill claims his conviction was unconstitutional because he
was precluded from pursuing a defense based on a lesser-included,
non-capital offense.
In Hopper v. Evans, 456 U.S. 605,
102 S. Ct. 2049,
72 L. Ed. 2d
367 (1982), the Supreme Court clarified when Beck requires a
defendant receive a new trial. Under Hopper, a defendant is
entitled to a new trial if he can either: (1) demonstrate there
was evidence produced at trial upon which a conviction for a
lesser-included offense could have been based; or (2) suggest a
plausible alternative theory that might have been made in the
absence of the preclusion clause that was not contradicted by his
trial testimony.
Hopper, 456 U.S. at 611-13, 102 S.Ct. at 2053-54;
Richardson, 864 F.2d at 1538. Hill does not contend the evidence
produced at trial would have supported a lesser-included offense
instruction. Instead, he suggests that in the absence of the
preclusion clause, he would have introduced evidence that he is
mentally impaired, suffers from brain damage, and was intoxicated
at the time of the shootings. This evidence, according to Hill,
would have entitled him to instructions on non-capital murder or
even manslaughter.16
16
Much of the evidence of Hill's mental impairment and
alleged intoxication, together with McDougal's affidavit stating
he would have followed a strategy of attacking the mens rea
required for capital murder, was filed after the district court
issued its final judgment. Since this evidence was not timely
Hill's theory, however, conflicts with his testimony at his
1979 trial. On direct examination, Hill testified that he never
entered Ms. Hammock's home on the afternoon of the shootings.
According to Hill, when he drove up to the house that afternoon,
Toni met him outside carrying his pistol and her clothes. She
returned his pistol, placed her clothes in the car, and asked him
to drive her to Atlanta. At that point, they took off with Hill
apparently unaware of the homicides. The unmistakable thrust of
Hill's testimony was that Toni committed the murders and he did
not.
According to Hill's sworn testimony at trial, he took no part
in the shooting of Ms. Hammock and the Tatums. Hill's belated
alternative theory that he shot them but was mentally impaired or
intoxicated at the time is contradicted by his trial testimony.
Hill is therefore not entitled to relief under Hopper. See
Richardson, 864 F.2d at 1538-39.
D. Swain Claim
Hill alleges the prosecutor in his 1979 trial followed his
historical practice of using peremptory challenges to strike
African-American citizens from the jury panel based on their race.
Hill contends this prosecutor's intentional discrimination against
African-Americans in the selection of the jury violated his
Fourteenth Amendment rights as stated in Swain v. Alabama. Hill
did not raise a Swain claim at trial, on direct appeal, or in
either of his state collateral petitions. The district court found
presented to the district court, the court properly ignored it in
rejecting Hill's Beck claim.
Hill had procedurally defaulted his Swain claim under Alabama law.
The court dismissed the claim after concluding Hill had failed to
establish either cause and prejudice or manifest injustice excusing
the default. Citing Murray v. Carrier, Hill argues the ineffective
assistance of his counsel at trial and appeal excuses the default
of his Swain claim.
Hill raised his ineffectiveness-as-cause argument for the
first time in his motion to alter or amend the district court's
final judgment. Since this argument was not fairly presented to
the district court, we will not grant relief on this basis. Even
assuming this argument was properly before us, we find it to be
without merit.
In Carrier, the Supreme Court recognized that when counsel is
ineffective under the standard of Strickland v. Washington, this
may serve as cause within the meaning of Wainwright v. Sykes.
Carrier, 477 U.S. at 488, 106 S.Ct. at 2645. The Court cautioned,
however, that the exhaustion doctrine "generally requires that a
claim of ineffective assistance be presented to the state courts as
an independent claim before it may be used to establish cause for
a procedural default."
Id. at 488-89, 106 S.Ct. at 2645-46. Hill
acknowledges Carrier 's exhaustion requirement, but claims it does
not prevent his citing his counsel's ineffectiveness as cause.
Hill notes procedural default and exhaustion are distinct concepts
within habeas corpus law. He contends Carrier allows petitioners
to rely on ineffective assistance as cause whenever an independent
claim has been exhausted regardless of whether it is also
procedurally defaulted. The State counters Hill should not be
permitted to rely on his counsel's performance as cause when he has
procedurally defaulted on his ineffective assistance claims in
state court.
Initially, we note the issue of whether a
procedurally-defaulted claim of ineffective assistance of counsel
can serve as cause under Carrier has not yet been decided in this
circuit. See Jackson v. Herring, 42 F.3d 1350, 1358-59 n. 7, 1362
(11th Cir.), cert. denied, --- U.S. ----,
116 S. Ct. 38,
132 L. Ed. 2d
919 (1995). Citing Hollis v. Davis,
941 F.2d 1471 (11th Cir.1991),
cert. denied,
503 U.S. 938,
112 S. Ct. 1478,
117 L. Ed. 2d 621 (1992)
and other cases, Hill states this Court has limited Carrier to
barring from serving as cause only unexhausted as opposed to
procedurally-defaulted claims of ineffective assistance. We do not
read Hollis or any other precedent in such a manner.
In Hollis, the petitioner argued his trial counsel's
ineffective assistance served as cause to excuse the default of a
claim that African-American citizens had been excluded from the
grand and petit juries that indicted and convicted him. Hollis,
941 F.2d at 1476-79. Although the petitioner in Hollis had not
exhausted his ineffective assistance claim in Alabama state court,
we concluded he could rely on this cause argument because it would
have been futile for him to return to state court to press this
claim.
Id. at 1479. The petitioner had filed at least three
previous pro se collateral petitions in state court.
Id. at 1473.
Each time the state court dismissed the petition without reaching
the merits.
Id. We noted the petitioner's illiteracy, when
combined with his "inscrutable handwriting," had "greatly hindered"
his attempts to obtain post-conviction relief in the state courts.
Id. Given these "particular facts" in Hollis, we concluded it
would have been futile for the petitioner to exhaust his
ineffective assistance of counsel claim as required by Carrier.
Id. at 1479.
We do not see how our decision in Hollis has any bearing on
the question of whether Hill can cite as cause a
procedurally-defaulted claim of ineffective assistance of counsel.
Unlike Hill, the petitioner in Hollis never defaulted his claim of
ineffective assistance in state court. Furthermore, we found it
would have been futile for the petitioner in Hollis to exhaust an
ineffective assistance of counsel claim given the unique
circumstances of his pro se status in state court, his illiteracy,
and the fact that on three separate occasions he had failed to get
an Alabama court to review the merits of his petition. Such
circumstances do not exist in this case. Neither Hollis nor the
rest of our precedent evince a reluctance to find Carrier prohibits
petitioners from relying on procedurally-defaulted ineffective
assistance claims.17 To the contrary, we conclude Carrier and the
rest of the Supreme Court's jurisprudence on procedural default
dictate that procedurally-defaulted claims of ineffective
17
Hill also cites us to Orazio v. Dugger, 876 F.2d 1508
(11th Cir.1989); Bundy v. Dugger,
850 F.2d 1402 (11th Cir.1988);
and Walker v. Davis,
840 F.2d 834 (11th Cir.1988) as indicating
this Court has limited Carrier to requiring only that petitioners
exhaust their ineffective assistance claims in state court.
While these cases addressed the question of exhaustion under
Carrier, none of them concerned procedurally-defaulted
ineffective assistance claims. It strains both the facts and
reasoning in these cases to say we have limited Carrier in the
manner Hill suggests.
assistance cannot serve as cause to excuse a default of a second
claim.
In Justus v. Murray, 897 F.2d 709 (4th Cir.1990), the Fourth
Circuit rejected a similar effort by a petitioner to use a
procedurally-defaulted ineffective assistance of counsel claim to
excuse the default of several underlying "substantive" claims. The
Justus court recognized Carrier 's reasoning is predicated on a
"sense of respect for the procedural default rule in the appellate
context."
Justus, 897 F.2d at 714. While the procedural default
rule may further different goals than the exhaustion doctrine, this
does not mean these goals are not implicated when a federal court
reviews a procedurally-defaulted claim of ineffective assistance
when it is asserted as cause under Carrier. See
id. at 713.
The procedural default rule has its foundations in the
principles of comity and judicial efficiency. See Sykes, 433 U.S.
at 87-88, 97 S.Ct. at 2506-7. To allow a federal court to review
a defaulted claim of ineffective assistance under the guise of a
cause analysis would ignore the fact that under the procedural
rules of Alabama and other states, the petitioner has forfeited his
right to have that claim reviewed by a state court. This hardly
amounts to respect for a state's right to enforce its procedural
rules. This is especially troubling given that almost any
procedural default of a constitutional claim can be characterized
as an attorney's error. Using a procedurally-defaulted ineffective
assistance claim to open the door to review of underlying,
defaulted, "substantive" claims would render state procedural bars
meaningless in many cases. We do not believe Sykes and Carrier
countenance such a result.
We therefore agree with the Fourth Circuit that Carrier stands
for more than a petitioner must simply exhaust a claim of
ineffective assistance before raising it as cause. Instead,
Carrier requires a claim of ineffective assistance be both
exhausted and not defaulted in state court before it can be
asserted as cause. Justus, 897 F.2d at 714. If the ineffective
assistance claim is defaulted, then a petitioner must demonstrate
independent cause and prejudice excusing the default of the
ineffectiveness claim before that claim can be asserted as cause in
relation to a second, substantive claim.
Id.
In the case before us, Hill cannot meet this burden. Hill
defaulted his claims of ineffective assistance of trial and
appellate counsel in the Alabama courts, and he has not shown cause
or prejudice excusing this default.18 Hill therefore cannot rely
on his attorneys' alleged ineffectiveness to excuse the procedural
default of his Swain claim.
III. CONCLUSION
We have carefully reviewed the record and briefs of the
parties. We are satisfied the district court did not err in
dismissing Hill's claims and denying the petition.
AFFIRMED.
18
As discussed earlier, we find Hill's arguments for cause
excusing his default of his claims of ineffective assistance of
trial and appellate counsel unavailing. Alabama's successive
petition rule is an adequate and independent state ground
supporting default of these claims, see section II.A.1, supra,
and the alleged deficient performance of his coram nobis counsel
cannot serve as cause, see section
II.A.2, supra. As for Hill's
appellate counsel claim, this claim was cognizable in Alabama
coram nobis proceedings back in 1985. See section II.B, supra.
