MARK E. FULLER, District Judge.
Artez Hammonds was convicted of capital murder in the Circuit Court of Houston County, Alabama. The jury recommended the death penalty, and the trial court agreed, sentencing Hammonds to death. After his case weaved its way through Alabama's state court system, Hammonds decided to petition this Court for a writ of habeas corpus. (Doc. # 6.) Having reviewed the state court record, and after fully considering his claims for relief,
The Alabama Court of Criminal Appeals summarized the facts of this case on direct appeal:
Hammonds v. State, 777 So.2d 750, 754-55 (Ala.Crim.App.1999).
The State of Alabama tried Hammonds in the fall of 1997. After a ten-day trial, a jury found Hammonds guilty of intentional murder during a rape, a capital offense under Alabama law. See Ala.Code § 13A-5-40(a)(3). The jury recommended the death penalty. The state trial judge agreed, sentencing Hammonds' to death on December 19, 1997.
Hammonds then began the process of appealing his conviction and sentence. His first appeal proved unsuccessful: the Alabama Court of Criminal Appeals affirmed his conviction and sentence in August of 1999 and denied rehearing in October of the same year. See Hammonds v. State, 777 So.2d 750 (Ala.Crim.App.1999). Hammonds' appeal to the Alabama Supreme Court proved similarly unfruitful as the court affirmed the court of appeals and denied rehearing. See Ex parte Hammonds, 777 So.2d 777 (Ala.2000). The Supreme Court of the United States likewise declined to grant Hammonds relief, denying his petition for a writ of certiorari in early 2001. See Hammonds v. Alabama, 532 U.S. 907, 121 S.Ct. 1233, 149 L.Ed.2d 142 (2001).
Hammonds next filed a Rule 32 petition for relief from judgment and sentence in the Circuit Court of Houston County, Alabama. After he amended his petition twice — once on July 11, 2002, and again on August 2 of the same year — the circuit court conducted an evidentiary hearing. And a little over a month later, the circuit court denied Hammonds' petition. The Alabama Court of Criminal Appeals then affirmed, see Hammonds v. State, 925 So.2d 1009 (Ala.Crim.App.2005) (mem.), and denied rehearing, see Hammonds v. State, 926 So.2d 1080 (Ala.Crim.App.2005) (mem.). After the Alabama Supreme Court denied Hammonds's petition for a writ of certiorari, see Ex parte Hammonds, 946 So.2d 543 (Ala.2005), he timely filed a petition for a writ of habeas corpus in this Court (Doc. # 1). He amended his petition less than a month later. (Doc. # 6.)
The writ of habeas corpus allows a federal district court to order the release of a prisoner held in custody in violation of the Constitution, laws, and treaties of the United States. See 28 U.S.C. §§ 2241-2255. Hammonds brings his claim under § 2254(a), the statutory provision giving this Court jurisdiction to review state court criminal proceedings for both constitutional and non-constitutional violations. Section 2254(d) of the Antiterrorism and
And the United States Court of Appeals for the Eleventh Circuit has elaborated on the standard of review as follows:
Stephens v. Hall, 407 F.3d 1195, 1201-02 (11th Cir.2005) (citations omitted).
A district court must resolve all claims for relief raised in a petition for a writ of habeas corpus, no matter whether habeas relief is granted or denied. See Clisby v. Jones, 960 F.2d 925, 936 (11th Cir.1992). What this means is that this Court must address each and every one of Hammonds' claims and sub-claims, make a decision on each, and provide reasoning for that decision. The Court must also deem any allegation of a constitutional violation as a claim for relief. See id.
A state prisoner must exhaust the remedies available to him in state court before petitioning for habeas relief in federal court. 28 U.S.C. § 2254(b)(1)(A). "This rule of comity reduces friction between the state and federal court systems by avoiding the `unseemliness' of a federal district court's overturning a state-court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance." Woodford v. Ngo, 548 U.S. 81, 92, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). To provide the state courts with the necessary full and fair opportunity to address his claim, "the petitioner [must] `fairly present' his federal claims to the state courts in a manner to alert them that the ruling under review violated a federal constitutional right." Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)).
To this end, the petitioner must alert each appropriate state court "to the federal nature of the claim and a statement of the facts which entitle him to relief." Duncan, 513 U.S. at 365-66, 115 S.Ct. 887; O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Picard, 404 U.S. at 277-78, 92 S.Ct. 509. More specifically, for exhaustion purposes, "a claim for relief ... must include references to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief." Gray v. Netherland, 518 U.S. 152, 162-63, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996). In other words, the state courts must have had the "opportunity to apply controlling legal principles to the facts bearing upon [the petitioner's] constitutional claim." Picard, 404 U.S. at 277, 92 S.Ct. 509.
A petitioner has exhausted state-court remedies when he no longer has those remedies available to him, no matter the reason for their unavailability. Id. at 92-93, 126 S.Ct. 2378. "Thus, if state-court remedies are no longer available because the prisoner failed to comply with the deadline for seeking state-court review or for taking an appeal, those remedies are technically exhausted." Id. at 93, 126 S.Ct. 2378. But exhaustion in this sense does not entitle the petitioner to litigate his claim in federal court; to the contrary, federal courts consider such claims procedurally defaulted. Id.; McNair v. Campbell, 416 F.3d 1291, 1305 (11th Cir.2005) ("It is well established that when a petitioner has failed to exhaust his claim by failing to fairly present it to the state courts and the state court remedy is no longer available, the failure also constitutes a procedural bar."); Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir.1999) ("[F]ederal courts may treat unexhausted claims as procedurally defaulted, even absent a state court determination to that effect, if it is clear from state law that any future attempts at exhaustion would be futile.").
The procedural default rule bars a federal court from reaching the merits of a claim on collateral review when the habeas petitioner failed to follow a state's procedural rules while presenting his federal claim in state court. Wainwright v. Sykes, 433 U.S. 72, 82, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). "Federal review of a petitioner's claim is barred by the procedural default doctrine if the last state court to review the claim states clearly and expressly that its judgment rests on a procedural bar ... and that bar provides an adequate and independent state ground for denying relief." Johnson v. Singletary, 938 F.2d 1166, 1173 (11th Cir.1991) (en banc) (citations omitted). But there is a safety valve for procedurally defaulted claim: federal district courts may consider them on the merits if the petitioner can show either (1) cause for the procedural default and actual prejudice arising out of the violation of federal law, Wainwright, 433 U.S. at 87, 97 S.Ct. 2497, or (2) a resulting fundamental miscarriage of justice if the court does not consider the claims, Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).
To demonstrate cause for a procedural default, the petitioner must show that "some objective factor external to the defense impeded counsel's effort to comply with the state's procedural rule." Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). A cause suffices if it is an "objective impediment[] to compliance with a procedural rule" so that "a showing that the factual or legal basis for a claim was not reasonably available to counsel" or "some interference by officials ... made compliance impracticable." Id. at 488, 106 S.Ct. 2639 (internal quotations and citations omitted). Constitutionally ineffective assistance of counsel, for example, can amount to a valid cause for noncompliance. Hollis v. Davis, 941 F.2d 1471, 1476 (11th Cir.1991).
If the petitioner can show cause, he must also show actual prejudice stemming from the alleged constitutional violation. Alexander v. Dugger, 841 F.2d 371, 374 (11th Cir.1988). Establishing actual prejudice requires a petitioner to show "not merely that errors in his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). "A mere possibility of actual prejudice resulting from an error at trial will not waive the procedural default where other substantial evidence of guilt is present." McCoy v. Newsome, 953 F.2d 1252, 1261 (11th Cir. 1992). Importantly, "[b]ecause there is no constitutional right to an attorney in state postconviction proceedings ... a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings...." Coleman v. Thompson, 501 U.S. 722, 725, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (internal citations omitted).
Furthermore, a federal court can review a habeas claim on the merits to correct a "fundamental miscarriage of justice."
Before analyzing Hammonds' claims on the merits, the Court will first resolve whether certain claims are unexhausted or procedurally defaulted.
The Eleventh Circuit has addressed this very issue. In Kelley v. Secretary for the Department of Corrections, the court of appeals described the petitioner's obligation to raise the factual bases for his claims and the consequences for failing to do so:
377 F.3d 1317, 1344 (11th Cir.2004).
The Court will analyze the disputed claims using the rule set forth in Kelley. Specifically, the Court will examine whether Hammonds asserted before the state courts each theory of relief and transparently presented the courts with specific acts or omissions by his lawyers that resulted in the claimed prejudice. If a given act or omission never came before the state courts for review, the Court will not consider it properly preserved for federal review and will not consider it when discussing the merits of Hammonds' ineffective assistance claim.
After addressing the exhaustion and procedural default arguments, the Court will take up the State's contention that some of Hammonds' claims should be dismissed for failing to comply with the pleading standards set forth in Habeas Corpus Rule 2(c). The State claims that 21 of Hammonds' allegations "are merely conclusory in nature, and often merely lists of allegations." (Doc. # 68 at 51.) After disposing of unexhausted or procedurally defaulted claims, the Court will analyze whether any of Hammonds' remaining claims are due to be dismissed as conclusory.
Next, the Court will analyze the State's argument that Hammonds has abandoned several claims. According to the State, Hammonds abandoned a number of claims and, thus, the Court should refrain from adjudicating them on the merits. After resolving this dispute, the Court will turn to whether Hammonds is entitled to an evidentiary hearing for any remaining claims for which he requests a hearing. Finally, the Court will address any claims ripe for consideration without an evidentiary hearing, adjudicating those claims on the merits in this Memorandum Opinion and Order.
As the Court discussed above, each factual allegation supporting Hammonds'
Hammonds claims he was denied the effective assistance of counsel because trial counsel failed to follow up on several leads. One lead involved a possible suspect who attended high school with the victim and her fiancé. The potential suspect allegedly told the police that they had the "wrong man" in Hammonds' case and that he had personally cut a woman's throat before. According to Hammonds, trial counsel should have followed this lead because doing so would have led to "the actual perpetrator(s)" of the crime. (Doc. # 6 at ¶¶ 40-44.)
The State claims that because Hammonds failed to present this argument to the state courts, it is unexhausted and thus procedurally defaulted. Hammonds disagrees, contending that because he presented his generalized ineffective assistance argument during the Rule 32 proceedings, the claim is not procedurally defaulted.
The Court has reviewed the record thoroughly and can find no mention of trial counsel's failure to investigate leads in either Hammonds' Amended Rule 32 Petition or his Second Amended Rule 32 Petition. But the trial court, in its Rule 32 Order, mentions that Hammonds raised counsel's alleged failure to investigate leads during the evidentiary hearing held on August 2, 2002. (Vol. 51, R. 82, at 745 (finding "assertions were made at the evidentiary hearing," including "that the attorneys failed to follow up on particular leads.").) The transcript does not, however, make mention of a man that attended high school with either the victim or her fiancé. As a result, the Court must find that Hammonds did not properly raise the claim below, thereby precluding consideration of this allegation in the cumulative analysis of Hammonds' ineffectiveness claim.
Hammonds argues for trial counsel's ineffectiveness next by asserting that counsel failed to pursue youthful offender status for him adequately. (Doc. # 6 at ¶¶ 45-50.) Hammonds notes that while his attorneys filed an application for youthful offender status, they were so unfamiliar with his juvenile record that he could not properly contest the State's arguments about the youthful offender petition. From there Hammonds explains why, had the trial court known certain facts about his juvenile record, the court would have likely granted his youthful offender petition. And if the court had granted the motion, Hammonds would have been ineligible for the death penalty.
The State is incorrect. Hammonds' Rule 32 motion asserts that trial counsel acted ineffectively by failing to pursue youthful offender status adequately. (Vol. 42, R. 66, at 470.) The trial court denied this claim on the merits and the Alabama Court of Criminal Appeals upheld the denial. (Vol. 51, R. 83, at 29.) This Court can therefore review the claim on the merits: Hammonds properly raised it in state court and the state courts issued a substantive ruling.
Hammonds argues that trial counsel was ineffective because of their failure to interview Tim Pridgen, the manager of the furniture store where Hammonds worked at the time of Mitchell's murder. According to Hammonds, he was at work when the murder occurred, and counsel could have established this alibi by interviewing Pridgen. (Doc. # 6 at ¶ 55.) The State contends that Hammonds did not raise this issue in his Rule 32 proceeding, which means the claim is defaulted.
The State is correct to note that Hammonds' Rule 32 motion does not mention Pridgen. It does state, however, that "counsel failed to locate and interview witnesses who could corroborate Hammonds' alibi (Mr. Hammonds was at work at the time that Ms. Mitchell was killed)." (Vol. 40, R. 62, at 32.) Although Hammonds lays out his claim in more detail in his federal habeas petition than in his Rule 32 petition, the latter still meets the level of specificity required by Kelley. Indeed, Hammonds sufficiently pointed out to the state courts the specific acts or omissions of trial counsel that he claims amounted to ineffective assistance of counsel. Accordingly, the Court finds that Hammonds properly raised his ineffective assistance claim as it relates to trial counsel's failure to interview Pridgen. Hence, the Court will consider the claim in the cumulative analysis of trial counsel's alleged ineffectiveness.
Similar to his claim related to Pridgen, Hammonds argues that his trial counsel was ineffective for failing to interview Greg Gordon, Hammonds' co-worker at the furniture store. (Doc. # 6 at ¶ 56.) Also like his Pridgen claim, Hammonds contends that Gordon would have corroborated Hammonds' alibi — that he was working at the furniture store when Mitchell's murder took place — but that trial counsel failed to get a statement from Gordon. The State again argues that Hammonds defaulted on this claim by failing to mention Gordon by name in his Rule 32 motion.
Hammonds' Rule 32 motion states that "counsel failed to locate and interview witnesses who could corroborate Mr. Hammonds's alibi (Mr. Hammonds was at work at the time that Ms. Mitchell was killed)." (Vol. 40, R. 62, at 32.) Like with Pridgen, this is sufficiently specific to meet the Kelley test: Hammonds pointed out the specific acts or omissions of trial counsel that he thinks constituted ineffective assistance of counsel. Therefore, the Court finds he properly raised the claim below and will consider the allegation during the cumulative
In his petition, Hammonds argues that trial counsel did not assist him effectively by failing to interview Valerie Rivers, Hammonds' sister-in-law. (Doc. # 6 at ¶ 58.) Rivers testified at trial that she had seen Hammonds with a diamond ring like the one taken from the victim's hand. Hammonds now claims that had trial counsel investigated Rivers' story by interviewing her they would have discovered a significant amount of evidence with which to impeach her testimony. The State asserts that this claim is defaulted because Hammonds did not raise it in his Rule 32 proceeding. (Doc. # 68 at 6.)
Hammonds' Rule 32 motion argues that trial counsel failed to assist him effectively by failing to object to the admissibility of Rivers' testimony at trial. But it makes no mention of counsel's ostensible failure to interview her. (Vol. 40, R. 62, at 46-47.) Nor does Hammonds' Rule 32 allegations about counsel's "failure to locate and interview" alibi witnesses save this newly asserted claim — Rivers was not in fact a potential alibi witness. Hammonds' Rule 32 petition therefore did not encompass the failure to interview Rivers. The Court accordingly finds that Hammonds' allegation about counsel's failure to interview Rivers is procedurally barred because he never presented the underlying facts and assertions to a state court. As a result, the Court will not consider these allegations when reviewing the cumulative evidence of trial counsel's ineffective assistance.
Hammonds next asserts that trial counsel's failure to challenge the qualifications of the State's expert witness amounts to ineffective assistance. The State argues, however, that Hammonds' Rule 32 motion never raised this claim. During the Rule 32 proceeding, Hammonds argued that his trial lawyers were ineffective for not challenging the conclusions of the State's experts and the methods by which the State's DNA technicians analyzed Hammonds' blood. But the record makes no mention of counsel's failure to question any witness's qualifications to testify as an expert. Consequently, the Court finds that Hammonds did not properly raise this argument below. Per Kelley, the Court will not consider these allegations when deciding Hammonds' cumulative ineffective assistance of counsel claim.
Claim B(6) of Hammonds habeas petition states that his trial counsel acted ineffectively because he did nothing to challenge "the heart of the State's case — the so-called `match' between Mr. Hammonds and the' tissue.'" (Doc. # 6 at ¶ 67.) Hammonds also lists the actions that counsel could have taken to challenge the State's DNA evidence, like seeing the State's expert's bench notes and "independently test[ing] the physical evidence." The State takes issue with Hammonds' raising the independent testing argument now, contending that he did not raise it during his Rule 32 proceedings.
After a thorough review of the record, the Court cannot agree with the State's position. The trial court's denial of Hammonds' Rule 32 petition stated:
(Vol. 51, R. 82, at 719). Hammonds raised, and the trial court disposed of, the argument that trial counsel was deficient for failing to conduct an independent DNA test on the genetic material found in the victim's apartment. Further, Hammonds' B(6)(a) claim mirrors claim B(7), which is entitled "Trial Counsel Failed to Seek Independent Forensic Testing of Physical Evidence." (Doc. # 6 at ¶ 24). In claim B(7), Hammonds argues that "Counsel was obligated to pursue the testing of, among other things ... the tissue (or paper towel) purportedly recovered near the victim's bed." The State does not challenge claim B(7) on procedural default grounds, even though a portion of B(7) is almost identical to the challenged claim B(6)(a). For these reasons, the Court finds that Hammonds' properly raised his claim about the independent DNA testing in state court, meaning it can be considered in the cumulative ineffective assistance analysis.
Hammonds, in Claim B(8)(d), argues that trial counsel's failure to object to the State's introduction of a recording left by the victim's mother on the victim's answering machine on the date of her death amounted to ineffective assistance. More specifically he claims that counsel should have objected to the recording as more prejudicial than probative and that this failure violated his Sixth Amendment right to effective assistance of counsel. The State conversely argues that this claim is procedurally defaulted because Hammonds never raised it in his Rule 32 petition. (Doc. # 68 at 9.)
Hammonds argued in his Rule 32 petition that trial counsel failed to assist him effectively by not objecting to several pieces of prejudicial evidence. Yet he did not list the answering machine recording as one such example. (Vol. 40, R. 62, at 39, 46.) And although Hammonds mentioned the answering machine recording in his Rule 32 petition, he did so only in the context of his prosecutorial misconduct claim. Hence he did not clearly present the factual allegations, coupled with the appropriate federal standard, to the state courts. This deprived the state courts of an adequate opportunity to rule on the merits of his claim related to counsel's failure to object to the admission of the recording. Because the state courts never had this opportunity, the claim is procedurally defaulted. Accordingly, the Court will not consider it when addressing his cumulative ineffectiveness claim.
Hammonds' next ineffectiveness argument centers on trial counsel's decision to not move to have additional counsel appointed. (Doc. # 6 at ¶ 82.) The State responds by asserting that Hammonds' Rule 32 motion did not raise this ground for an ineffectiveness claim. (Doc. # 68 at 9-10.) The State is incorrect. Hammonds' amended Rule 32 motion states, "Among the motions trial counsel failed to pursue were their motion for appointment [of] additional counsel...." (Vol. 42, R. 66, at 472.) Because Hammonds clearly presented this claim to the state courts, the Court will consider it when adjudicating his cumulative ineffectiveness claim.
Hammonds contends that his trial counsel were ineffective for failing to pursue a motion for extraordinary expenses for psychiatric assistance. (Doc. # 6 at ¶ 82.) Trial counsel made the motion for extraordinary expenses, but then failed to
Hammonds also argues for trial counsel's ineffectiveness by noting how his lawyers failed to request an order barring the prosecution from referring to Hammonds by anything other than his given name. Like with Claim B(12)(b), trial counsel moved for the order initially but failed to follow up on it after the trial court deferred ruling. (Vol. 42, R. 66 at 473.) And also like Claim B(12)(b), the State incorrectly contends that Hammonds' Rule 32 motion did not raise this issue. Hammonds' amended Rule 32 motion states, "Among the motions trial counsel failed to pursue were ... on their motion to prevent Mr. Valeska from referring to Mr. Hammonds at trial by anything other than his given or Christian name...." (Vol. 42, R. 66, at 473.) This suffices under Kelley to exhaust the claim, so it is not procedurally defaulted. The Court will therefore consider it.
Hammonds contends that his trial attorneys did not assist him effectively when they failed to move for a psychiatric evaluation despite knowing that Hammonds previously suffered from visual and auditory hallucinations and had a family history of mental illness. (Doc. # 6 at ¶ 83.) Despite the State's argument that this claim is procedurally defaulted, it too is clearly included in Hammonds' Rule 32 petition. (See Vol. 42, R. 66, at 472 ("Their failure to move for a professional evaluation of Mr. Hammonds's competency constituted ineffective assistance and deprived Mr. Hammonds of his right to counsel.").) The state courts denied Hammonds' claim on the merits. (Vol. 51, R. 83, at 26.) Accordingly, Hammonds properly raised this claim on the merits, so the Court will consider it when ruling on the merits of his overarching ineffectiveness claim.
In his petition to this Court, Hammonds argues that his right to assistance of counsel was violated when his trial attorneys failed to present all available mitigating evidence and failed to prepare properly the mitigation witnesses that were presented. (Doc. # 6 at ¶ 85.) Specifically, Hammonds contends that trial counsel's failure to prepare his mother, Annie Hammonds, and aunt, Lois George, before the penalty phase of trial resulted in both women being defensive and obstinate during cross-examination. Hammonds raised both of these arguments in his second amended Rule 32 petition.
Hammonds claims that his trial counsel's failure to interview witnesses willing to testify on his behalf during the penalty phase of trial amounted to ineffective assistance of counsel. (Doc. # 6 at ¶ 86.) The State again argues that the claim is defaulted because Hammonds' Rule 32 motion does not mention it. And again the State is incorrect. Hammonds' second amended Rule 32 motion says, "Had counsel contacted Mr. Hammonds's family, friends, and other people who had interacted with Mr. Hammonds when he was growing up, and adequately investigated the lives of those they did contact, they could have presented an accurate portrait of Mr. Hammonds." (Vol. 43, R. 68, at 731-32.) Hammonds, moreover, lists nine potential mitigation witnesses that counsel failed to interview. This included Cherita Hayes, the mother of one of his children. (Id. at 731.) The Court thus finds that Hammonds fairly presented this claim to the state courts in his Rule 32 petition, thereby precluding a finding of procedural default.
To further support his claim that trial counsel were ineffective during the penalty phase, Hammonds points out that they failed to introduce mitigating evidence demonstrating that Hammonds had a loving relationship with his children, Artecia and Cordney. (Doc. # 6 at ¶ 87.) The State asserts that Hammonds failed to raise this claim in his Rule 32 motion and therefore defaulted on it. (Doc. # 68 at 14-15.) This time the State is correct. Although Hammonds pointed out a number of claimed deficiencies in counsel's performance during the penalty face, his Rule 32 petition omits any mention of his relationship with his children.
Indeed, the section in Hammonds' second amended Rule 32 petition devoted to trial counsel's deficient presentation of mitigation evidence focuses on Hammonds' past and his mental health history to explain his actions and "lessen[] Mr. Hammonds's culpability for the crime." (Vol. 43, R. 68, at 732-33.) The federal habeas petition presents a different argument, however, stating that presenting evidence about his relationship with his children would paint a more positive picture of Hammonds and "convey the immeasurable value of Mr. Hammonds's life." (Doc. # 6 at ¶ 86.) Kelley instructs a district court to ignore on the merits any "particular factual instances of ineffective assistance of counsel ... that were not first presented
The next claimed instance of ineffective assistance involves trial counsel's failure to investigate Hammonds' traumatic upbringing and alcoholic father, and failing to present evidence about his upbringing to the penalty phase jury. (Doc. # 6 at ¶¶ 88-89.) Once again the State says Hammonds procedurally defaulted on the claim by not presenting it in his Rule 32 petition. (Doc. # 68 at 15-16.) The Court finds the State's argument without merit. Eight paragraphs spanning five pages of Hammonds' Rule 32 petition are dedicated to this claim. The petition presented to the state courts explains how Hammonds' father assaulted his mother, Hammonds, and his siblings until the day his father committed suicide. (Vol. 43, R. 68, at 722-26.) This suffices to meet the admittedly strict Kelley standard and, accordingly, the Court will consider the claim's merits.
Hammonds similarly argues that his trial counsel were ineffective for failing to present to the penalty phase jury evidence regarding "Mr. Hammonds's ability to conquer his childhood demons as an adult so that he could be a committed — even though physically absent — father to his own children." (Doc. # 6 at ¶ 89.) And the State once again argues this claim is procedurally defaulted because Hammonds never presented it to the state courts hearing his Rule 32 petition. (Doc. # 68 at 16-17.) This time the State is correct: Hammonds' second amended Rule 32 petition makes no mention of his overcoming his childhood hardships to become a committed father. Nor does his petition assert that trial counsel provided ineffective assistance at the penalty stage for failing to investigate these facts. (Vol. 43, R. 68, at 721-26.) The Court is thus barred from hearing this claim on the merits.
Paragraphs 90 through 92 of Hammonds' habeas petition contend the state courts misapplied federal law by analyzing his ineffectiveness arguments claim-by-claim. To this end, Hammonds argues that the state courts should have applied the cumulative approach endorsed by Terry Williams v. Taylor, 529 U.S. 362, 398-99, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). (Doc. # 6 at ¶ 33-34.) The section of Hammonds' petition merely sets up his claim for relief on the merits; indeed, he cites the standard set forth in § 2254 and argues that he can meet it. Therefore, it is not a distinct claim for relief but rather a substantive argument. And because it is not a district claim, the State's argument regarding procedural default is mooted.
Moving away from his ineffective assistance claim, Hammonds claims the trial court violated his constitutional rights by failing to provide a complete appeal record. According to Hammonds, the record did not include juror questionnaires, which made reviewing his jury selection claims almost impossible. (Doc. # 6 at ¶¶ 110-15.) Hammonds made this argument to the Circuit Court of Houston County in his Rule 32 petition. But the circuit court found the claim procedurally barred under Rules 32.2(a)(3) and (5) of the Alabama
Hammonds correctly admits this claim is procedurally defaulted. (Doc. # 47 at 82.) So he instead argues that the cause for the default is ineffective assistance of appellate counsel. (Doc. # 47 at 82.) More specifically, Hammonds claims that but for appellate counsel's ineffective assistance, he would have argued on appeal that the incomplete record violated his constitutional rights.
Counsel's failure "to recognize the factual or legal basis for a claim" or his failure to "raise the claim despite recognizing it" does not give rise to cause for a procedural default. See Murray v. Carrier, 477 U.S. 478, 486, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Rather, an attorney's failure to raise a claim at trial or on direct appeal amounts to cause to excuse a procedural default "only if the error rises to the level of constitutionally deficient assistance of counsel under the Sixth Amendment." Eagle v. Linahan, 279 F.3d 926, 937 (11th Cir.2001). So to overcome the procedural default by cause and prejudice, Hammonds must show that his appellate counsel rendered constitutionally deficient assistance by failing to argue that the incomplete appellate record violated his constitutional rights, and that he suffered prejudice as a result.
The record reveals that Hammonds argued, on direct appeal, that the trial court erred in eight ways — each of which were claims for relief. But none of those grounds related to jury selection in any way.
Hammonds' next claim for relief centers on the trial court's decision not to sanction the District Attorney for violating the court's discovery orders. He claims
Although neither party discusses cause and prejudice in the Joint Report (Doc. # 47 at 83), Hammonds contends in his merits brief that he can overcome any procedural default by showing his appellate counsel assisted him ineffectively. (Doc. # 95 at 152.) More simply, Hammonds claims that, but for his appellate counsel's ineffectiveness, he would have raised this claim on direct appeal. As a general rule, an attorney's failure to raise a claim at trial or on direct appeal amounts to cause to excuse a procedural default "only if the error rises to the level of constitutionally deficient assistance of counsel under the Sixth Amendment." Eagle, 279 F.3d at 937. To show appellate counsel performed in a constitutionally deficient way, Hammonds must satisfy both of Strickland's criteria — that is, he must show that counsel's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced him.
Hammonds' brief makes no argument about why a failure to raise a particular claim on appeal satisfies Strickland. Indeed, "the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default." Murray, 477 U.S. at 486, 106 S.Ct. 2639. Hence the Court cannot find that Hammonds established cause and prejudice sufficient to excuse his procedural default, which bars consideration of this claim on the merits.
Hammonds next argues that the trial court violated his rights by not providing
Only two passages of the relevant portions of the record deal with the alleged lack of funds to retain experts. The first is an exchange between Ms. McClary, Hammonds' attorney for the Rule 32 proceedings, and Mr. Decker, Hammonds' trial and appellate counsel. The transcript reveals the following:
(Vol. 45, R. 70, at 128.)
Hammonds also points to the following exchange between Ms. Speagle, one of the State's attorneys, and Ms. Nemish, one of Hammonds' trial attorneys:
(R. 70 at 180-81.)
These stray references to a lack of funds do not fairly present the federal constitutional
Hammonds' habeas petition next claims that the State improperly introduced, and the trial court improperly admitted, highly prejudicial and nonprobative evidence used to inflame the jurors' passions. (Doc. # 6 at ¶ 127.) Hammonds' petition references his earlier claim about trial counsel's ineffectiveness for failing to object to the admission of six pieces of evidence: (1) autopsy photographs of Marilyn Mitchell's body; (2) evidence of Mitchell's good character; (3) evidence that someone had stolen property from Mitchell's condo; (4) an answering machine recording left by Mitchell's mother; (5) evidence that Hammonds had seen a movie with a woman other than his wife; and (6) evidence that Hammonds liked to have sex with white women. (Doc. # 6 at ¶ 71.)
Hammonds raised this issue in his initial Rule 32 motion. (Vol. 40, R. 62, at 70.) The Houston County Circuit Court found that claim barred by Rule 32.2(a)(2) and (3) of the Alabama Rules of Criminal Procedure. (Vol. 40, R. 62, at 181.) The Alabama Court of Criminal Appeals affirmed this finding, holding that Hammonds defaulted on the claim because he did not raise it on appeal. (Vol. 51, R. 83, at 9.) The State agrees with the court of appeals, arguing that the procedural default bars this Court from granting relief.
Hammonds concedes that the claim is defaulted. But he argues that he can show cause and prejudice, and he relies once again on claiming that trial counsel provided ineffective assistance by failing to object to the evidence. Because ineffective assistance of counsel can provide cause for a default, see Murray v. Carrier, 477 U.S. 478, 488-89, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), the Court will undertake the procedural default analysis for Claim L after analyzing Hammonds' various ineffective assistance of counsel arguments on the merits.
Hammonds' next claim alleges that the State failed to turn over two important documents. The first is an agreement the State made with Gregory Gordon, one of its key witnesses. The second is a VICAP report used by the FBI to create a suspect profile. According to Hammonds, the State's failure to disclose these documents violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (holding prosecution must turn over exculpatory evidence), thus depriving him of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights. (Doc. # 6 at ¶¶ 128-31.)
The Houston County Circuit Court found this claim procedurally barred by Rule 32.2(a)(5) of the Alabama Rules of Criminal Procedure since Hammonds could have raised the issue on direct appeal. (Vol. 43, R. 68, at 748.) The Alabama Court of Criminal Appeals concurred. (Vol. 51, R. 83, at 11.) The State urges this Court to adopt the state appellate
Hammonds does not dispute that this claim is procedurally defaulted. (See Doc. # 6 at ¶¶ 128-31.) Rather, Hammonds argues that he can show the necessary cause and prejudice to excuse the procedural default. (Doc. # 47 at 91-92.) To this end he claims that the State's suppression of the evidence prevented him from presenting the argument on direct appeal. (Id.) And for support he cites to Banks v. Dretke, 540 U.S. 668, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004), a case holding that the suppression of evidence can sometimes serve as cause to excuse a procedural default.
In Banks, the Supreme Court focused on fairness to the defendant. By enforcing procedural default rules where the state has suppressed evidence, courts would force defendants to raise Brady claims about evidence that they likely would not know exists. This would unfairly place the burden of discovering exculpatory evidence in the state's possession on the shoulders of criminal defendants. Thus Banks says that "defendants [need not] scavenge for hints of undisclosed Brady material when the prosecution represents that all such material has been disclosed." 540 U.S. at 695, 124 S.Ct. 1256.
But the logic of Banks does not apply here. As the Alabama Court of Criminal Appeals noted, Hammonds could have, but did not, raise his Brady claim on appeal. If Hammonds had yet to discover the existence of suppressed exculpatory evidence at the time of his appeal, then Banks would apply and allow him to claim that the State's suppression caused the procedural default. Hammonds, however, pointed out in his Rule 32 petition that he knew about both the Greg Gordon deal and the VICAP report before filing his appeal. (Vol. 42, R. 66, at 509-10.) In fact, trial counsel filed a formal request for the VICAP report on April 15, 1997 — well after the state should have disclosed it, but still before Hammonds' trial began. (Id. at 509.) By the same token, the State dropped Gordon's cocaine possession charges eleven days before Hammonds received his sentence, so Hammonds knew about the possibility that Gordon had received a deal from the State well before he filed his appeal.
Banks, moreover, deals with situations where the State's suppression of evidence prevents a defendant from raising the claim at the first appropriate state proceeding. When the defendant does raise such a claim, the suppression can serve as cause for excusing the procedural bar. Here, the State's alleged suppression did not prevent Hammonds from raising his claim on appeal. Consequently, Banks does not support his cause and prejudice argument. His Brady claim is therefore procedurally defaulted.
In his petition, Hammonds claims the trial court erred by not instructing the jury that it had to consider his age at the time of the crime as a mitigating factor when determining his sentence. (Doc. # 6 at ¶¶ 132-34.) The State again argues for procedural default, noting how Hammonds never raised this claim at any state proceeding, whether directly or during collateral appeal. (Doc. # 47 at 93.) Hammonds does not disagree; instead, he argues that counsel's ineffectiveness prevented him from raising this claim at trial or on appeal.
Even if the Court agreed with Hammonds about the ineffectiveness of trial and appellate counsel, he still failed to
Hammonds claims in his petition that the jurors considered outside evidence and ignored the judge's instructions not to discuss the case with others or amongst themselves before deliberations began. (Doc. # 6 at 49-50.) Specifically, Hammonds claims that juror Andrea Chavez, while sequestered, used her cell phone to call her husband, and that the jurors discussed the case during breaks in the trial despite the trial judge's instructions to the contrary. As to Chavez, the trial judge confronted her about the phone calls, but he never asked if the other jurors received improper information as a result of those calls.
The record reveals that Hammonds raised these arguments in some fashion in his Rule 32 petition. There he claimed that juror misconduct violated his right to a fair trial by an impartial jury. The Circuit Court of Houston County found that Hammonds had not demonstrated how the juror's cell phone usage prejudiced him and noted how he could have raised the claim on direct appeal but did not do so. (Vol. 51, R. 82, at 748.) The Court of Criminal Appeals addressed the merits of this claim, too, but found that Hammonds had failed to put forth sufficient evidence to warrant relief. (Vol. 51, R. 83, at 11-12.) Because the last court to review Hammonds' claim made a decision on the merits, this Court can do the same. Hammonds' claim on this point is addressed below.
Hammonds claims that a number of jurors failed to answer voir dire questions honestly, thereby depriving him of his right to a fair trial with an impartial jury. (See Doc. # 6 at ¶¶ 145-49.) According to Hammonds, Juror Don Jones never disclosed that he knew several witnesses who were expected to testify. Similarly, jurors Jimmie Bryant and Vera Hayles allegedly concealed their knowledge about Hammonds' incarceration for another, unrelated crime. And Bryant, along with Andrea Chavez, ostensibly failed to disclose that they knew or had a familial connection to members of the Dothan Police Department. The State concedes that Hammonds raised this claim in his Rule 32 motion and admits that the Alabama Court of Criminal Appeals addressed the claim on the merits. (Doc. # 47 at 98-104.) Still, the State contends that Hammonds did not properly raise the claim either during trial or on direct appeal,
The cases the State cites hold that, if a state court refuses to adjudicate a claim on the merits because of a procedural default, then a federal court must respect that adequate and independent state ground for denying relief. Here, however, the state courts did not apply a procedural default rule. Cf. Johnson v. Singletary, 938 F.2d 1166, 1173 (11th Cir.1991) (en banc) ("Federal review of a petitioner's claim is barred by the procedural default doctrine if the last state court to review the claim states clearly and expressly that its judgment rests on a procedural bar ... and that bar provides an adequate and independent state ground for denying relief."). To the contrary, the Alabama Court of Criminal Appeals disposed of the claim on the merits, finding that Hammonds failed to present sufficient evidence to warrant relief. Accordingly, this Court can address the merits, too.
During voir dire, prospective juror James Adkinson revealed that he had a close professional relationship with the victim's father. Hammonds moved the trial court to strike Adkinson for cause, arguing that his relationship with the victim's father amounted to a bias in favor of the State. The trial judge refused this request. Now, in his habeas petition, Hammonds claims that the trial court's refusal violated his rights to due process, a fair trial, and a reliable sentencing. (Doc. # 6 at ¶¶ 150-51.) Hammonds raised this issue in his Rule 32 motion. (Vol. 40, R. 62, at 98, 105.) The Houston County Circuit Court found that this claim was procedurally barred, and the Alabama Court of Criminal Appeals upheld that determination. (Vol. 51, R. 83, at 11 (finding claim barred by Rule 32.2(a)(5)).) Hammonds does not dispute this. (Doc. # 47 at 105). Rather, he argues that the incompetence of both trial counsel and appellate counsel caused the procedural default. (Doc. # 47 at 105).
As discussed above, to demonstrate that counsel's ineffective assistance caused a procedural default, a petitioner must demonstrate that counsel's performance fell below an objective standard of reasonableness. Eagle, 279 F.3d at 937. Yet Hammonds' brief makes no argument as to why a failure to raise a particular claim on appeal satisfies the constitutional standard for ineffectiveness of counsel. As the Supreme Court has stated, "the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default." Murray, 477 U.S. at 486, 106 S.Ct. 2639. Accordingly, this Court cannot find that Hammonds established cause and prejudice sufficient to excuse his procedural default and, thus, this claim will not be considered on the merits.
Hammonds' petition claims that the trial court erred by not conducting individual voir dire regarding automatic imposition of
Hammonds also asserts that the trial court favored the prosecution throughout his trial. More specifically, Hammonds claims the trial court refused to declare a mistrial or impose sanctions, even in the face of rampant prosecutorial misconduct; made disparaging remarks about trial counsel; assumed a prosecutorial role during trial; refused to strike a nonresponsive brief filed by the State; and refused to remove jurors who engaged in misconduct. (Doc. # 6 at ¶¶ 156-64.) Once again the State argues that Hammonds procedurally defaulted (Doc. # 47 at 106-111), and Hammonds does not dispute the State's contention.
Hammonds argues that he can show cause for his procedural default, however, by pointing to trial counsel's supposed ineffectiveness. But once again Hammonds merely asserts that his lawyers provided deficient assistance by failing to raise these claims; he does not say why failing to raise these arguments amounted to a violation of his constitutional rights. And without showing why counsel's failure to raise the argument meets the test set out in Strickland, Hammonds cannot overcome the procedural default. So once again the Court must find his claim procedurally defaulted and conclude that it cannot examine the claim on the merits.
Finally, Hammonds argues that Alabama's method of executing prisoners using either electrocution or lethal injection amounts to cruel and unusual punishment. (Doc. # 6 at ¶¶ 57-59.) When the trial court sentenced Hammonds, Alabama executed inmates by electrocution. Since then the State has adopted lethal injection as its new method of execution, and it gave inmates already on death row 30 days in which to opt out of the new execution protocol. See McNair v. Allen, 515 F.3d 1168, 1171 (11th Cir.2008).
Hammonds, in his Rule 32 petition, argued that Alabama's electrocution protocol violated the Constitution's Cruel and Unusual Punishment Clause. The Alabama Court of Criminal Appeals found the claim in procedural defaulted under Rule 32.2(a)(5), noting that Hammonds could have but did not raise it on direct appeal. (Vol. 51, R. 83, at 11.) On this part of Claim U, Hammonds admits that a procedural default occurred, but he argues that counsel's ineffectiveness caused it. Like with a number of the claims discussed above, Hammonds fails to set out the grounds for his cause and prejudice argument. And also like the above arguments, the Court must note that counsel's failure to raise a claim will not alone suffice to establish cause. Murray, 477 U.S. at 486,
The State also contends that Hammonds' claim about the constitutionality of its lethal injection protocol is procedurally defaulted, for he failed to raise it on direct appeal. (Doc. # 47 at 112.) Furthermore, the State asserts that the Rule 32 court and the Court of Criminal Appeals found the claim procedurally defaulted for the same reason. The Court disagrees, however, because the state courts only found Hammonds' electrocution-related claims in procedural default.
Alabama changed its preferred method of execution from electrocution to lethal injection on July 1, 2002. So the change occurred after Hammonds filed his original Rule 32 petition (February of 2002), but before the evidentiary hearing on his petition (held on August 2, 2002). Moreover, the arguments Hammonds made as they relate to why electrocution amounts to cruel and unusual punishment were particular to that method — for example, the slow nature of death caused by electrocution and the potential for burning and excruciating pain — and do not apply to lethal injection. Therefore, the Court finds that Hammonds' electrocution claims do not encompass his lethal injection claim. Along these same lines, the Court finds that because Hammonds did not raise his lethal injection claim at the state level it is not properly exhausted.
Typically, if a claim remains unexhausted at the state level, the federal habeas court may remand it back to the state courts for proper exhaustion. But here such an endeavor would be futile. Under Alabama law, the state's courts will not entertain a successive habeas petition unless the petitioner can show why the new grounds "could not have been ascertained through reasonable diligence when the first petition was heard." Ala. R.Crim. P. 32.3(b). Hammonds cannot meet this standard as to his lethal injection claim: the evidentiary hearing on his Rule 32 petition, because it was held after the change in execution protocol, thus giving Hammonds ample opportunity to discover the basis for raising the issue through reasonable diligence. Because remanding the claim would amount to nothing more than an exercise in futility, the Court finds Hammonds' lethal injection claim procedurally defaulted and thus barred from review.
"Federal courts are not forums in which to relitigate state trials." Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). Staying true to this principle, the Supreme Court has held that a claim of actual innocence "is not itself a constitutional claim" for relief. Schlup v. Delo, 513 U.S. 298, 315, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) ("actual innocence is not itself a constitutional claim") (internal quotations omitted). But this is not to say that actual innocence has no role to play in habeas review. Quite to the contrary, a habeas petitioner's actual innocence serves a vehicle for vindicating his constitutional claims after a procedural default. This allows a petitioner "otherwise subject" to procedural defenses to get a hearing in federal court so as to avoid a fundamental miscarriage of justice. Herrera,
Avoiding a procedural bar to a federal court hearing a petitioner's claim on the merits requires the petitioner to show that a "constitutional violation probably resulted in the conviction of one who is actually innocent." Schlup, 513 U.S. at 327, 115 S.Ct. 851 (quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). "To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence" tending to prove his innocence. Id. Hammonds has failed to come forward with any new evidence tending to show his innocence. His amended habeas petition merely recites that he maintains his factual innocence (Doc. # 6 at ¶ 104), as does his merits brief (Doc. # 95 at 218-19). Without new evidence tending to prove his actual innocence, Hammonds cannot dock his procedurally defaulted claims in the safe harbor of the miscarriage of justice exception. As a result, the Court will not address the procedurally defaulted claims.
The State has moved to dismiss a number of the allegations contained in Hammonds' claim for ineffective assistance of counsel. According to the State, a number of these claims are conclusory and fail to state a basis for relief. (Doc. # 68 at 50-55.)
The State, in a footnote in its merits brief, argues that Hammonds abandoned a number of claims by failing to address them in his own merits brief. (Doc. # 105 at 20 n. 14.)
In the Joint Report, Hammonds requests an evidentiary hearing on a number
Under AEDPA, a district court generally cannot hold an evidentiary hearing if the petitioner "has failed to develop the factual basis of [his] claim in State court." 28 U.S.C. § 2254(e)(2). But this general rule has an exception. Indeed, a district court can hold an evidentiary hearing if the petitioner shows:
Id. § 2254(e)(2).
Applying this standard requires a two-step analysis. First, the Court must ask whether the petitioner developed the claim's factual basis in state court. See, e.g., Michael Williams v. Taylor, 529 U.S. 420, 431, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). If the petitioner did not develop the facts in state court, the Court must then determine whether this happened because of a "lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Id. at 432, 120 S.Ct. 1479. Diligence "depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court; it does not depend ... upon whether those efforts could have been successful." Id. at 435, 120 S.Ct. 1479.
In addition, it should go without saying that a petitioner will not receive an evidentiary hearing on any claim the Court has found in procedural default and for which the petitioner cannot establish cause and prejudice. See, e.g., Hill v. Jones, 81 F.3d 1015, 1023 (11th Cir.1996) ("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."). Because Hammonds defaulted on Claims I, M, R, S, and U, Hill bars an evidentiary hearing and precludes the Court from even attempting the Michael Williams analysis. In the same vein, because the petitioner bears the burden of establishing his entitlement to an evidentiary hearing, see, e.g., Birt v. Montgomery, 725 F.2d 587, 591 (11th Cir.1984) (en banc); Chavez v. Sec'y Fla. Dep't of Corrections, 647 F.3d 1057, 1060 (11th Cir. 2011), the Court will not entertain any request Hammonds failed to address in his merits brief. Here, he did not mention Claims C, E, L, and P, let alone argue that he is entitled to an evidentiary hearing on them. Accordingly, the Court finds that Hammonds has not met his burden for establishing entitlement to a hearing on those claims and his request for one is due to be denied.
After applying the procedural default rules and addressing the burden of proof, only two of Hammonds' requests for an evidentiary hearing survive: those of Claims B and Q. Hammonds admits that
Even so, Hammonds asserts that the underdeveloped facts do not stem from a "lack of diligence, or some greater fault, attributable to" him or his lawyers. Michael Williams, 529 U.S. at 431, 120 S.Ct. 1479. According to Hammonds, the record remained underdeveloped because he and his counsel could not prepare adequately for the Rule 32 hearing. (Doc. # 95 at 86.) To support this argument he points to three facts. First, he notes that he could not meet with his attorney before the proceeding because he could not get transportation to Houston County. (Id. at 174.) Second, he states that the Rule 32 court denied his repeated requests for a continuance. (Id.) Third, Hammonds says that the state court's decision to deny his funding requests for experts and expanded discovery contributed to his inability to present the facts to the Rule 32 court. (Id. at 175.) Furthermore, Hammonds states that, although he eventually hired a second attorney, Tonya McClary, to represent him in his Rule 32 proceeding, the trial court did not grant her pro hac vice admission until just two and a half weeks before the hearing and only granted one continuance to allow her time to obtain admission. (Id.)
The Court agrees with Hammonds that he and his lawyers had to prepare for the Rule 32 hearing under less than ideal circumstances. His counsel felt inadequately prepared, the trial judge refused a continuance, and he did not get to have extended face-to-face meetings with his attorneys. But even so, Hammonds' request for an evidentiary hearing is due to be denied for the reasons outlined below.
Hammonds asserts that, because the record as to Claim B is incomplete, he should get the opportunity to present more evidence. During his Rule 32 proceeding, Hammonds presented testimony from his two trial attorneys and his appellate counsel. He even testified himself about what requests he had made of counsel. After this testimony, the Rule 32 court found that Hammonds failed to meet the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). (Vol. 51, R. 82, at 751.) The state court further indicated that, while Hammonds had requested time to pursue other leads, those leads related to his claim of innocence, not his claim of ineffective assistance. (Id.)
In his request for an evidentiary hearing, Hammonds does not proffer what new evidence, if any, he could present. It is the finding of this Court that Hammonds developed the record adequately as it relates to his ineffective assistance claim. And because the record is complete enough to rule on the merits of Hammonds' claim, the Court need not hold an evidentiary hearing. See, e.g., Stephens v. Kemp, 846 F.2d 642, 650-51 (11th Cir. 1988) ("Because we are able to determine the merits of appellant's ineffective assistance claims on the basis of the record already before the court, the district court did not err in denying a hearing for the taking of additional evidence in support of those claims.").
Moreover, the Supreme Court's recent decision in Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), limits the ability of federal habeas courts to hold evidentiary hearings. In that case, the Court held "that evidence
Hammonds claims that he did not have adequate time to prepare for the Rule 32 hearing as it related to various juror responses given during voir dire. (Doc. # 95 at 176.) The Alabama Court of Criminal Appeals disagreed, finding that Hammonds' Rule 32 counsel had adequate time. That court stated, "Hammonds was represented by two attorneys during the Rule 32 proceedings. One was appointed March 1, 2002, and had five months to prepare for the August 2, 2002, hearing; the second entered her notice of appearance on May 20, 2002, and had over two months to prepare for the August 2, 2002, hearing.... This was more than adequate to prepare for a Rule 32 evidentiary hearing." (Vol. 51, R. 83, at 7.) The state courts appear to have assumed that McClary could have prepared for the hearing while awaiting pro hac vice admission. This Court agrees.
The Court of Criminal Appeals also pointed out that Hammonds failed to call a single juror during the Rule 32 proceedings to substantiate his claims. (Id. at 12.) And he failed to present a single affidavit supporting his position. (Id.) Hammonds' inability to obtain funds for experts or to obtain additional discovery did not prevent him from subpoenaing jurors to testify. He knew the identities of the jurors and he had adequate information regarding their allegedly inaccurate voir dire responses when he drafted his Rule 32 petition. Not much preparation would have been required to subpoena the allegedly offending jurors. Accordingly, it is the finding of this Court that the failure to develop the record adequately on this point is due to Hammonds' lack of diligence. Therefore, Michael Williams does not require an evidentiary hearing, and the Court declines to have one.
In addition, because Hammonds bring this claim under § 2254(d)(1), the Court "is limited to the record that was before the state court that adjudicated the claim on the merits." Pinholster, 131 S.Ct. at 1398. In other words, like with Claim B, Pinholster prohibits this Court from having an evidentiary hearing on Claim Q.
Twelve claims remain for merits review. The claims that survived the exhaustion requirement, the procedural default doctrine, a motion to dismiss, and the State's abandonment arguments are: A, B, C, D,
Doug Valeska, the District Attorney who prosecuted Hammonds, commented on both Hammonds' right to remain silent and Hammonds' incarceration for an unrelated offense. Both comments were decidedly improper. The question that concerns the Court, however, is whether the comments rendered the proceedings unconstitutionally unfair to Hammonds. Before delving into the legal issues, it is necessary to summarize the relevant facts.
The first improper comment by Valeska took place during the defense's cross-examination of Greg Gordon, Hammonds' co-worker. While asking Gordon about fingerprints lifted from the victim's telephone, the following exchange occurred:
(Vol. 25 at 219.) The trial court immediately held a hearing outside of the jury's presence and determined that Valeska intended to refer to Hammonds when he said, "Let him testify."
(Vol. 25 at 228.)
Valeska also made improper comments during closing arguments, stating, "[Hammonds] couldn't keep his stories straight in prison." This statement, like his reference to Hammonds remaining silent, violated one of the trial court's orders, this one prohibiting Valeska from disclosing to the jury Hammonds' incarceration for another, unrelated crime. After Valeska's comment,
(Vol. 34 at 859.)
On direct appeal, Hammonds argued that the trial court's curative instructions did not suffice to remedy Valeska's improper statements. The Alabama Court of Criminal Appeals disagreed and affirmed the trial court's decision to deny a mistrial. Hammonds, 777 So.2d at 763-67. The Alabama Supreme Court, in a divided opinion, agreed "that the trial judge corrected any harm by giving appropriate corrective instructions." Ex parte Hammonds, 777 So.2d at 778. Even so, the state supreme court warned that "[t]his case presents a classic example ... of prosecutorial conduct that could, in certain circumstances, cause us to overturn a conviction." Id.
Well-established constitutional law makes clear that a prosecutor acts improperly by commenting during trial on a criminal defendant's constitutional right to remain silent. Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). A comment refers to a defendant's silence if it was manifestly intended as a remark on the defendant's failure to testify or if the statement would lead the jury naturally and necessarily to take the remark that way. United States v. Thompson, 422 F.3d 1285, 1299 (11th Cir. 2005). A court tasked with deciding a claim of allegedly improper prosecutorial comments must ask a single question: did the comments, in light of the entire judicial proceeding, render the trial fundamentally unfair? See Brooks v. Kemp, 762 F.2d 1383, 1400 (11th Cir.1985) (en banc), vacated on other grounds, 478 U.S. 1016, 106 S.Ct. 3325, 92 L.Ed.2d 732 (1986), reinstated, 809 F.2d 700 (1987) (en banc) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). A judge's curative instruction can remedy the effects of any improper comment and prevent the need for a new trial. Id. In fact, the Eleventh Circuit views curative instructions as presumptively effective. See United States v. Stone, 9 F.3d 934, 938 (11th Cir.1993) ("Few tenets are more fundamental to our jury trial system than the presumption that juries obey the court's instructions.").
The Alabama Court of Criminal Appeals undertook the fundamental fairness analysis. Hammonds, 777 So.2d at 765, 767 ("Because of the trial judge's complete and timely instruction, the error created by the prosecutor's improper remark was vitiated so as to render the error harmless.... The prompt and thorough action by the trial judge in issuing a curative instruction to the jury as soon as the argument was made created a presumption against error."). The Alabama Supreme Court upheld the state appellate court's application of the test, albeit without much analysis of the issue. Hammonds thus bears the burden of showing that the state courts' decisions were "contrary
Against this backdrop, Hammonds argues that the state courts unreasonably applied three Supreme Court cases — Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); and Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) — to decide that Valeska's statements did not render his trial fundamentally unfair. The Court disagrees. None of the three decisions cited by Hammonds dealt with the effect of a judge's curative instruction on a prosecutor's improper comments. In fact, the trial judge in Griffin did the exact opposite of offering a curative instruction: he explicitly told the jurors they could use the defendant's silence to infer his guilt. 380 U.S. at 610, 85 S.Ct. 1229. Similarly, in Doyle, the trial court erred by allowing the prosecutor to argue to the jury that the defendants' silence gave rise to an inference of guilt. 426 U.S. at 613-15, 96 S.Ct. 2240.
Here, the trial judge by no means offered a perfect curative instruction. Instead of telling the jury that they could not use Hammonds' silence to infer his guilt, he instructed jurors that they should draw neither an inference of guilt nor innocence from his silence. This is arguably incorrect because the jury was required to presume Hammonds' innocence until the point in time when the State had proven his guilt beyond a reasonable doubt. But other than this semantic flaw, Judge Anderson's instruction conveyed to the jury that they had to disregard Valeska's statement, that the statement was not evidence, and that Hammonds had a right not to testify. This brings Hammonds' claims far enough outside the purview of Griffin and Doyle that this Court cannot say that the trial court acted contrary to, or engaged in an unreasonable application of, clearly established federal law.
In Estelle, the Supreme Court held that a state could not compel an accused to stand trial before a jury while dressed in identifiable prison clothes. 425 U.S. at 503-05, 96 S.Ct. 1691. From here, a general rule has emerged, holding that references to a criminal defendant's incarcerated status may impermissibly compromise the defendant's presumption of innocence. See, e.g., United States v. Villabona-Garnica, 63 F.3d 1051, 1058 (11th Cir.1995) (citing Estelle, 425 U.S. at 503-05, 96 S.Ct. 1691). But Hammonds' case falls well outside of the reach of Estelle and its progeny. Indeed, Valeska made his comment about Hammonds' inability to "keep his story straight in prison" in passing. Cf. United States v. Blasingame, 219 Fed. Appx. 934, 946-47 (11th Cir.2007) (relying partly on brevity of improper comments in denying habeas relief). Hence, unlike in Estelle, where the state forced the defendant to wear prison garb, there was not a constant reminder — or even a repeat reference — to Hammonds' incarcerated status. Valeska's comments also did not refer to the reason for Hammonds' incarceration. And the trial court issued a curative instruction like it did with Valeska's improper comment about Hammonds' silence. These differences arguably make Estelle inapplicable.
As a threshold matter, the parties disagree about how the Court should analyze Hammonds' ineffective assistance of counsel claims. On the one hand, the State wants the various individual allegations of ineffective assistance chopped up and analyzed separately. On the other hand, Hammonds wants the Court to analyze the allegations of his lawyers' deficient performance by grouping them by the phase of the trial and appeals process, and he wants the Court to address the alleged conflicts of interest of his counsel separately.
The Court finds Hammonds' arguments on this point persuasive. Supreme Court precedent suggests a federal district court analyzing an ineffective assistance of counsel claim should look at the individual allegations of ineffective assistance and their cumulative effect. See Terry Williams v. Taylor, 529 U.S. 362, 398, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (holding state supreme court's decision "was unreasonable insofar as it failed to evaluate the totality of the available mitigation evidence — both that adduced at trial, and the evidence adduced in the habeas proceeding"); Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (concluding federal court must address ineffective assistance claim "in light of all the circumstances"). So the Court will proceed by first analyzing Hammonds' claims of ineffective assistance at the guilt/innocence phase of his trial followed by his claims related to the penalty phase. After that the Court will address the allegedly deficient performance of Hammonds' appellate counsel. Finally, the Court will look at his claim that conflicts of interest rendered trial counsel's performance ineffective.
In analyzing these claims, the Court will apply the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a petitioner claiming ineffective assistance must show that counsel's performance fell below an objective standard of reasonableness, and that this breach prejudiced the defense. 466 U.S. at 687-88, 104 S.Ct. 2052; see also
Strickland, moreover, noted that "the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation... [but] simply to ensure that criminal defendants receive a fair trial." 466 U.S. at 689, 104 S.Ct. 2052. Therefore, federal courts have to resist indulging the "tempt[ation] for a defendant to second-guess counsel's assistance after conviction or adverse sentence," by presuming that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S.Ct. 2052. It is only when "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result," id. at 686, 104 S.Ct. 2052, that courts should grant an ineffective assistance claim.
Hammonds first cites his trial attorneys' failure to follow a number of leads as the basis for an ineffective assistance claim. According to Hammonds, his trial lawyers failed to follow "several leads that could have uncovered the actual perpetrator(s) of the crime." (Doc. # 6 at ¶¶ 40-44.) Among these leads was a tip that a death row inmate in California had bragged about killing Ms. Mitchell; a statement in the Dothan Police Department's report identifying another possible suspect; and a number of witnesses who reportedly last saw the victim alive with an unidentified white male. (Id. at ¶¶ 41-43.) Hammonds argues that a reasonable attorney would have investigated and developed these leads to a greater degree than his did attorneys, Charles Decker and Kathleen Nemish, and that he suffered prejudice as a result.
Hammonds' defaulted on his claim about his attorneys failing to investigate a lead from a statement contained in the police report. This leaves Hammonds with two arguments. The first relates to a California death row inmate who supposedly took credit for killing Mitchell. The second is more general, focusing on Decker and Nemish's failure to investigate leads from witnesses who said they last saw Mitchell alive with an unidentified white male.
The Court finds these arguments without merit. Under Strickland, defense counsel only has to provide reasonably effective assistance. It does not require a criminal defense lawyer to exhaust every lead, no matter how implausible or unlikely to bear fruit. See, e.g., Chandler v. United States, 218 F.3d 1305, 1319 (11th Cir.2000) ("Counsel is not required to present every nonfrivolous defense"). This rule recognizes there is an opportunity cost to the decisions a defense lawyer makes: the time and money spent pursuing a speculative lead means diminishing the scarce resources available to defense counsel and forgoing better ways to develop the case. Hence Strickland recognizes that defense lawyers stand in the best position to make these types of
Here, the police found at the crime scene Hammonds' sperm on a paper tissue, his spermatozoa on the victim, and his blood on the victim's bedroom door and baseboard. This discovery led the State to base its case on DNA evidence. And knowing that the prosecution would do so, defense counsel made a rational decision not to pursue a farfetched alibi about a California inmate killing Mitchell, focusing instead on undermining the State's DNA evidence more directly. This is by no means an unreasonable decision.
Next, Hammonds argues that trial counsel failed to identify and investigate witnesses that would have given him an alibi. (Doc. # 6 at ¶¶ 51-59.) More specifically, Hammonds contends that trial counsel should have interviewed Charles King, David Preston, Tim Pridgen, Greg Gordon, Daryl White, Valerie Rivers,
After reviewing the record, this Court cannot say that defense counsel acted unreasonably by failing to interview the witnesses that Hammonds claims would have provided him with an alibi. Hammonds himself admits that trial counsel focused on undermining the DNA evidence. And this was a reasonable decision: the State had overwhelming evidence that not only established Hammonds' presence at the crime scene but also his guilt. Thus it made sense for trial counsel to train their focus on undermining the accuracy and reliability of that evidence instead of investigating what would have been a weak alibi
Moreover, courts generally view ineffective assistance claims with great caution when the only evidence of a missing witness's testimony comes from the defendant. See, e.g., Schwander v. Blackburn, 750 F.2d 494, 500 (5th Cir.1985). Hammonds produced not a shred of evidence showing that he would have succeeded on his alibi defense or that the witnesses would have testified in the manner in which he claims. (See R. 83 at 24 ("Hammonds did not call any of these witnesses to testify at the evidentiary hearing or otherwise present any evidence indicating what they would have testified to had they been called to testify at Hammonds's trial.").) For example, Nemish testified during the Rule 32 hearing that she attempted to find the time cards that would have given Hammonds a plausible alibi, but her investigation revealed the cards had been destroyed. (Vol. 51, R. 83, at 19.) Hammonds failed to introduce the time cards at the hearing, which, if he had, would have suggested Nemish unreasonably failed to locate them. Nor did he call a witness to testify about when the time cards were destroyed so as to show that a reasonably timely investigation would have led to their discovery. Similarly, although Hammonds testified at the hearing that King and Preston would have verified his alibi, he called neither one to testify, nor did he have them submit an affidavit about what they would have testified to if called during his trial. (Id. at 19-20.) Accordingly, Hammonds has not met his burden of showing that his trial counsel's failure to investigate and call witnesses "rendered his trial fundamentally unfair." Coon v. United States, 441 F.2d 279 (5th Cir.1971), cert. denied, 404 U.S. 860, 92 S.Ct. 160, 30 L.Ed.2d 103 (1971).
Hammonds' next arguments rely on more general accusations: he contends that Nemish and Decker failed to formulate a sound defense strategy to rebut the State's case, and that they made numerous strategic errors before and during trial. (Doc. # 6 at ¶¶ 60-69.)
This Court sees no reason to hold that these findings were contrary to, or an unreasonable application of, federal law. Hammonds provided no evidence contradicting the evidence relied upon by the state court. He also failed to provide Supreme Court precedent directly on point, and he declined to argue in his merits brief that the state courts unreasonably applied Strickland's general rules as it relates to his claims.
More importantly, defense counsel consulted a number of experts about the State's DNA testing procedures.
Hammonds, in his next group of arguments, asserts that trial counsel rendered ineffective assistance by failing to object to prejudicial, non-probative evidence introduced by the State. (Doc. # 6 at ¶¶ 71-72.) The disputed evidence includes autopsy and crime scene photos, testimony about the victim's good character, evidence about allegedly stolen property, a recording left by the victim's mother on the victim's answering machine,
Hammonds also argues that trial counsel failed to ensure that he had a fair and impartial jury. (Doc. # 6 at ¶¶ 77-78.) To this end, he states that at least two jurors slept during his trial. (Id. at ¶ 78; Doc. # 95 at 92-93.) Further, he asserts that trial counsel rendered ineffective assistance by failing to question each juror individually, have the jury polled about one juror's cell phone usage, determine which prospective juror spoke with the victim's mother, and ensure that the juror questionnaires
The state courts did not act contrary to or unreasonably apply Supreme Court precedent in reaching these decisions. Generally speaking, a sleeping juror does not violate a defendant's due process rights absent a showing of prejudice and that he did not receive a fair trial. See, e.g., United States v. Fernandez-Hernandez, 652 F.3d 56, 75 (1st Cir.2011); United States v. Freitag, 230 F.3d 1019, 1023 (7th Cir.2000); United States v. Springfield, 829 F.2d 860, 864 (9th Cir. 1987). Here, there is little evidence that jurors actually slept during the trial and, significantly, Hammonds failed to call either allegedly drowsy juror during the Rule 32 hearing. And even assuming that two jurors slept at some point during Hammonds' trial, there is no evidence that they did so during a part of the trial that presented testimony favorable to Hammonds. In fact, the overwhelming evidence of Hammonds' guilt makes it is far more likely that sleeping jurors prejudiced the prosecution and helped Hammonds. For example, if jurors slept while the State presented testimony about how Hammonds' DNA matched the DNA found at the scene, Hammonds arguably would have benefited. More importantly, the highly persuasive nature of the DNA evidence makes it unlikely that but for the sleeping jurors, the trial's outcome would have changed. Along these same lines, Hammonds produced no evidence to support his arguments about the jury's alleged lack of impartiality.
Finally, Hammonds argues that trial counsel failed to render effective assistance by declining to pursue meritorious motions. (Doc. # 6 at ¶¶ 82-83.) Specifically, Hammonds contends that trial counsel abandoned motions seeking "the appointment of additional counsel, extraordinary expenses for psychiatric assistance, permission to view the crime scene with Mr. Hammonds, and an order prohibiting the prosecutor from referring to Hammonds by anything other than his given name." (Id. at 82.) The Alabama Court of Criminal Appeals found this argument meritless because Hammonds failed to produce evidence to support his claim. (Vol. 51, R. 83, at 28-29.) This Court agrees. Hammonds provided no case law or argument on this issue in his merits brief. Nor does his habeas petition cite to a Supreme Court case on point. Therefore, the state court's decision to deny relief was by no means contrary to, or an unreasonable application of, Supreme Court precedent.
Hammonds contends that trial counsel failed to investigate Hammonds' juvenile record and pursue youthful offender status.
Now, Hammonds cites to Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), to support his claim that counsel rendered ineffective assistance by not pursuing youthful offender status. In Roper, the Court held that states could not execute anyone who commits a capital crime before his eighteenth birthday. In reaching this conclusion, the Roper Court noted how people under 18 tend to lack maturity and have yet to develop fully a sense of responsibility. 543 U.S. at 569, 125 S.Ct. 1183. Roper, however, did not deal with an ineffective assistance of counsel claim. Nor does it apply to offenders who are older than 18 at the time they committed the capital crime.
Moreover, because Hammonds has failed to put forward evidence about trial counsel's supposed ineffective assistance, he cannot satisfy Strickland's test. For example, Hammonds contends that trial counsel's failure to contest the probation officer's report amounts to ineffective assistance. But he has not shown that the probation officer included inaccurate information in his report or that including new information would have swayed the trial court's decision. As a result, Hammonds cannot shoulder his burden of overcoming the presumptive reasonableness of his lawyer's decision to concede the accuracy of the probation officer's report. Nor can he show that, but for trial counsel's concession, there existed a reasonable probability that "the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
Lastly, Hammonds contends that trial counsel failed to investigate and present compelling mitigating evidence about Hammonds' good character (Doc. # 6 at ¶¶ 84-87) and his troubled childhood (id. at ¶¶ 88-89). According to Hammonds, counsel only briefly elicited testimony from eight poorly prepared witnesses. (Id. at ¶¶ 85-86.) This, Hammonds says, left out a number of witnesses willing to testify on his behalf that would have painted a positive picture of his relationship with his two children, and "offer[ed] a strong, positive, and caring picture of" his life.
The Alabama Court of Criminal Appeals rejected these claims. (Vol. 51, R. 83, at 24-26.) In reaching this decision, the appeals court noted how Nemish testified at the evidentiary hearing about what steps she took to prepare for the penalty phase. (Id. at 25.) She said that she secured a mitigation specialist from the Alabama Prison Project to investigate Hammonds' background, called Hammonds' mother to testify about his abusive upbringing, and spoke with Hammonds' mother a number of times before trial to ensure her fitness to speak on her son's behalf. (Id.) Conversely, Hammonds failed to present evidence "that his counsel's investigation ... was inadequate" and never showed that "but for counsel's conduct in handling the penalty phase of his trial, he probably would not have received the death sentence." (Id.)
With the benefit of hindsight, Hammonds critiques trial counsel's preparation for the penalty phase of his trial, claiming it fell below an objective standard of reasonableness for a number of reasons. In evaluating these arguments, this Court "must give great deference" to defense counsel's "choice of strategy and execution." Collier v. Turpin, 177 F.3d 1184, 1198 (11th Cir.1999) (citing Strickland, 466
Applying these principles and the Supreme Court's decision in Strickland, the Eleventh Circuit granted the defendant habeas relief in Collier v. Turpin, 177 F.3d 1184 (11th Cir.1999). In so doing, the court of appeals first rejected the defendant's claim that his lawyer failed to investigate adequately when preparing his mitigation case. Id. at 1200. The court noted that defense counsel selected witnesses who "possessed much of the information about Collier's past and character that Collier now contends should have been presented to the jury." The same can be said of Hammonds' lawyers. Decker and Nemish had close relatives — including Hammonds' mother, wife, and aunt — testify on Hammonds behalf. More importantly, unlike the defendant in Collier, Hammonds never had his lawyers testify about their thought processes as they related to whom they selected to testify. Given the lack of evidence put forth by Hammonds, and the close fit between the facts here and those proving insufficient in Collier, this Court cannot say the state courts acted contrary to, or unreasonably applied, Supreme Court precedent in concluding that Hammonds' lawyers adequately investigated his mitigation case.
Hammonds' arguments about his lawyers' presentation to the jury and court are a closer question. In Collier, defense counsel elicited testimony about the defendant's good character, his reputation for truth, and how he worked hard to support his family. Yet Collier's lawyer did so by asking only surface level questions, thus presenting "no more than a hollow shell of the testimony necessary for a `particularized consideration of relevant aspects of the character and record of [a] convicted defendant before the imposition upon him of a sentence of death.'" Collier, 177 F.3d at 1201-02 (quoting Woodson v. North Carolina, 428 U.S. 280, 303, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976)). What is more, Collier's lawyer, knowing that the sentencing phase was of the utmost importance, agreed to have the jury hear mitigation evidence at 8:00 p.m. on a Friday night after the jury had already deliberated once and returned a guilty verdict. Id. at 1188. Collier's trial counsel then proceeded to put on just an hour and a half of testimony before he rested around 9:30 p.m. that night. Id. Most importantly, Collier's lawyer, during a post-trial evidentiary hearing, conceded that his performance was deficient his client's sentencing. Id. at 1202.
Here, Hammonds presented no evidence at his Rule 32 hearing about what trial counsel should have done to present his mitigation evidence more effectively. And unlike the lawyer in Collier, Hammonds' attorneys defended their performance rather than admitting to its inadequacy. The record further shows Hammonds' lawyers had Judge Anderson instruct the jury on eight specific mitigating circumstances in addition to the statutory mitigation factors. Specifically, the state circuit court instructed the jury:
(Vol. 35, R. 47, at 1182-83.) Conversely, the ineffective attorney in Collier failed to elicit testimony that "was of a nature that could not reasonably have aided the jury in its sentence determination." 177 F.3d at 1201. The Eleventh Circuit even noted that Collier's lawyer "raced through the... witnesses, eliciting very little in the way of mitigating evidence from any of them." Id. at 1201 n. 22. In Hammonds' case, the trial court's instructions to the jury show that Hammonds' lawyers did far better eliciting specific mitigation evidence than did the attorneys in Collier.
Moreover, "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." Collier, 177 F.3d at 1203 (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052). The particularly brutal nature of Hammonds' murder of Marilyn Mitchell, its sexual nature, and Hammonds' criminal history triggered three statutory aggravating factors favoring a death sentence. The applicability of these factors possibly, indeed likely, outweighed any mitigation evidence that defense counsel could have offered. So even assuming that Hammonds' counsel rendered ineffective assistance, he still did not suffer prejudice as a result. Admittedly, the Eleventh Circuit rejected a similar argument in Collier, but it did so partly because Collier's murder of a police officer while fleeing a robbery lacked careful planning and was not accompanied by "torture, rape, or kidnaping." 177 F.3d at 1203 (quoting Jackson v. Herring, 42 F.3d 1350, 1366 (11th Cir.1995)) (emphasis added).
Here, Hammonds did not kill a similarly sized armed adversary in the heat of the moment. Rather, he raped and viciously stabbed to death a woman much smaller than he in a brutal, senseless, and planned act of violence. Under these facts, this Court cannot say that had counsel presented more mitigation evidence, or better prepared the witnesses that testified, there would have been a "reasonable probability that consideration of these facts would have led the jury to a different result." Id. (citing Dobbs v. Turpin, 142 F.3d 1383, 1390-91 (11th Cir.1998)). Accordingly, Alabama's state courts neither acted contrary to, nor unreasonably applied, federal law in rejecting Hammonds' ineffective assistance of counsel claim.
Hammonds contends that his appellate counsel, Charles Decker, rendered
Clearly established federal law requires appellate counsel to provide effective assistance. See, e.g., Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). In analyzing these claims, the Strickland performance-and-prejudice test governs. Clark v. Crosby, 335 F.3d 1303, 1310 (11th Cir.2003). As for the performance prong, prevailing professional norms for appellate lawyers require them to argue all arguably meritorious issues. See American Bar Association, Guidelines for the Appointment & Performance of Defense Counsel in Death Penalty Cases, 10.5.1 (2003).
Mr. Decker stood in the best position to weigh the merits of an argument before submitting it to the state appellate courts. And the record suggests that this is exactly what he did. Decker raised myriad issues related to the State's procedure for gaining and testing Hammonds' DNA. See Hammonds v. State, 777 So.2d 750 (Ala. Crim.App.1999). He also put forth arguments related to Hammonds' change of venue motion, Judge Anderson's impartiality, the trial court's closing instructions, and the propriety of Hammonds' death sentence. That Decker chose to forgo some less meritorious arguments does not mean that he provided ineffective assistance. See Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003) ("When counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect."). Courts have limited resources in which to deal with legal challenges, and the reality is that lawyers often best serve their clients by pressing their strongest arguments while foregoing other, less persuasive ones. Given the vast amount of discretion vested in Decker, the arguments he raised on appeal, and the lack of evidence submitted by Hammonds to prove that Decker acted unreasonably by foregoing certain arguments, this Court cannot say the state courts acted contrary to, or unreasonably applied, federal law when they rejected Hammonds' claims about Decker's supposed ineffectiveness on appeal.
Hammonds argues that his counsel suffered from two conflicts of interest. First, he claims that Alabama's compensation scheme for capital cases rendered trial counsel ineffective. (Doc. # 6 at ¶¶ 73-76, 79-80; Doc. # 95 at 114-16.) According to Hammonds, the compensation scheme imposed severe financial hardship on his attorneys, which, in turn, rendered them ineffective. The Alabama Court of Criminal Appeals rejected this argument. (Vol. 51, R. 83, at 17.) Second, Hammonds contends that Decker had a conflict with Diane
On the claim related to Decker and Nemish's compensation, Hammonds argues that the state court acted contrary to established Supreme Court precedent. For support, he cites primarily to Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), a case holding that if a defendant can show an actual conflict of interest adversely affected counsel's performance, courts must presume prejudice instead of requiring the defendant to prove it. 446 U.S. at 349-50, 100 S.Ct. 1708. Proving the requisite "adverse effect" requires "a defendant ... to demonstrate: (a) that the defense attorney could have pursued a plausible alternative strategy, (b) that this alternative strategy was reasonable, and (c) that the alternative strategy was not followed because it conflicted with the attorney's external loyalties." Reynolds v. Chapman, 253 F.3d 1337, 1343 (11th Cir.2001). Hammonds claims that because Alabama law capped his out-of-court compensation at $1,000, see Ala.Code § 15-12-21 (1975), "trial counsel had a real financial incentive to devote an increasing portion of their time, energy, and resources to paying[] clients' cases." (Doc. # 95 at 121.)
But as the Alabama Court of Criminal Appeals noted, "Hammonds failed to plead any facts in his petition indicating, or to present any evidence at the evidentiary hearing regarding, what work he believed counsel failed to do as a result of their compensation or what more he believed should, or could have, been done with additional compensation." (Vol. 51, R. 83, at 17.) In addition, although both Decker and Nemish testified that they suffered financial hardship resulting from their representation of Hammonds, neither said that it gave rise to a conflict of interest. In fact, Nemish testified that she made Hammonds' case her first priority and that her compensation did not cause her to spend less time on it. (Id.) Under these facts, the Court cannot say that the appeals court acted contrary to established Supreme Court precedent when it found that neither Decker nor Nemish had an actual conflict that caused them to give ineffective assistance to Hammonds.
On his claim about Decker's alleged personal conflict, Hammonds contends that Decker's alleged animus toward Diane Clayton led him to fail to pursue potentially exculpatory evidence. (Doc. # 95 at 124-25.) Again, Hammonds relies on Cuyler to support his claim, arguing the alleged conflict establishes that he suffered prejudice. The Court disagrees. Hammonds' evidence that Decker's supposed dislike of Clayton amounted to a conflict of interest is Decker's statement that he "did not see eye to eye" with Clayton. More importantly, Cuyler dealt with a defense lawyer's joint representation of co-defendants. In that situation, a lawyer's representation of one defendant necessarily creates a conflict as it relates to his representation of the other defendant. Because a joint representation is much different than the circumstances here — Decker had past dealings with and an ostensible personal dislike of Clayton, a non-client — Hammonds' case is easily distinguishable. The Alabama Courts of Criminal Appeals therefore did not act contrary to Supreme Court precedent when it denied Hammonds' ineffective assistance claim based on the ostensible conflict of interest.
In his habeas petition, Hammonds raises two claims related to his post-conviction
The Alabama Court of Criminal Appeals found that state law barred this claim and, even if it did not, there is no right to counsel in post-conviction proceedings. (Vol. 51, R. 83, at 7-8.) This is a correct statement of federal constitutional law. Coleman v. Thompson, 501 U.S. 722, 753-54, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) ("There is no constitutional right to an attorney in state post-conviction proceedings."); Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) ("Our cases establish that the right to appointed counsel extends to the first appeal of right, and no further."). While Hammonds tries to dress this claim up as an error committed by the state trial court, his complaint lies with Blumenfeld's performance, thus making it an ineffective assistance claim. The Rule 32 hearing was a collateral proceeding, however, meaning that he had no right to the effective assistance of counsel during it. Mize v. Hall, 532 F.3d 1184, 1192 n. 5 (11th Cir.2008) ("a convicted defendant has no constitutional right to effective assistance of counsel in collateral proceedings." (citing Coleman, 501 U.S. at 753-54, 111 S.Ct. 2546; Finley, 481 U.S. at 555, 107 S.Ct. 1990)). Accordingly, the state court of criminal appeals complied with federal law in denying sub-claim C.1.
The Alabama Court of Criminal Appeals rejected this argument too. (Vol. 51, R. 83, at 5-7.) In reaching this conclusion, the state appeals court observed that Hammonds filed his Rule 32 motion on February 20, 2002, and was appointed counsel about a week later. (Id. at 5-6.) About two and a half months after that, his current lawyer, Tonya McClary, filed a notice of appearance and moved to have Hammonds' Rule 32 hearing moved from July 16, 2002, to a later date. (Id. at 6.) The circuit court granted this motion, moving the hearing date back until August 2, 2002, but denied two ensuing motions to push the date even further into the future. (Id.)
Hammonds contends that the trial court, by denying his motions for a continuance, deprived him of the opportunity to litigate his Rule 32 claims in a meaningful way. This argument hinges on McClary's assertion that she had little time to prepare for the hearing because the trial court did not admit her pro hace vice until July 16, 2002 — just two and a half weeks before the hearing. (Doc. # 6 at ¶¶ 97-98.) But as the Alabama Court of Criminal Appeals noted, McClary filed an appearance well before that, which gave her over two months to prepare. (Vol. 51, R. 83, at 6-7.) The Constitution only requires that a defendant have a reasonable time to prepare, see Hall v. Head, 310 F.3d 683, 697-98 (11th Cir.2002), and given the dearth of case law on the issue, the Court cannot say that the circuit court acted contrary to or unreasonably applied federal law in finding that two months sufficed.
Hammonds still maintains his factual innocence. But as discussed above, see supra
Hammonds claims that the trial court violated his constitutional rights by denying his motion for a change of venue based on presumed prejudice.
Hammonds' factual argument is straightforward. He contends the news media in Dothan, Alabama, produced such prejudicial coverage of Mitchell's murder in 1990, and of his arrest and trial years later, that he could not get an impartial jury or a fair trial. To buttress this argument, Hammonds points out how the Dothan Eagle — the area's most widely-read newspaper — often ran front page stories about Mitchell's murder alongside her picture. The stories sometimes contained gruesome details and inflammatory headlines. Hammonds also relates anecdotes from his former lawyers, detailing how Houston County residents told the lawyers how they prayed for them because they had to represent someone as obviously guilty of a heinous murder as Hammonds. According to Hammonds, similar sentiment ran throughout the Dothan community, and he believes that it denied him his rights to due process, a fair trial, and an impartial jury.
The Alabama Court of Criminal appeals disagreed. The appeals court reiterated that the trial court found the media coverage was at its most intense for the two weeks after the murder but quickly flamed out. Although Hammonds presented testimony from members of the media representing outlets in the Houston County area, the testimony revealed that the coverage did not contain particularly inflammatory or prejudicial commentary and kept mainly to reporting the facts surrounding Mitchell's murder. In addition, Hammonds presented evidence from a political science professor who conducted a survey of county residents. This survey showed that 72% of county residents knew something about the case; that the majority learned about the case through the news media; and, that if chosen as jurors, the majority would be uncertain as to Hammonds' guilt or innocence.
Hammonds, to support his claim that the Alabama courts acted contrary to or unreasonably applied federal law, cites to two Supreme Court cases — Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), and Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). In Irvin, the Supreme Court found clear and convincing evidence of a "build-up of prejudice" against the criminal defendant based on local news coverage. 366 U.S. at 725, 81 S.Ct. 1639. The Irvin Court based this finding on evidence showing that 95% of households in the prosecuting county had heard extensive newscasts about the defendant's criminal record, parole violation, court martial, lineup identification,
Although the Irvin Court reversed the conviction, it tried to stake out the limits of community prejudice as a basis for a mandatory change of venue for fair trial purposes. To this end, the Court wrote:
Irvin, 366 U.S. at 722-23, 81 S.Ct. 1639.
Here, the trial court correctly noted that qualified jurors need not come to the courthouse as blank slates wholly ignorant of the facts of the case. It further — and again correctly — stated that the defendant had to shoulder a heavy burden to show that pretrial publicity deprived him of his right to a fair trial before an impartial jury. Hammonds, 777 So.2d at 768. From there, and citing Irvin and Alabama law, the Alabama Court of Criminal Appeals stated that a defendant can have the venue changed where he "demonstrate[s] to the trial court that he cannot receive a fair and impartial trial in the county where he is to be tried." Id. at 769. The appeals court additionally listed the two instances where the law mandates a change of venue — when the media's coverage of the case so saturates the community that the trial setting is rendered "inherently suspect" and where the defendant shows a connection between the publicity and the existence of actual prejudice. Id. In applying these rules to Hammonds' claim that he faced presumed prejudice because of an "inherently suspect venue," the appeals court affirmed the trial court's finding that "the pretrial reporting was factual and did not contain inflammatory or prejudicial commentary." Id. It also agreed with the trial court's decision "that the lengthy period between the murder and trial lessened the impact of any potentially inflammatory pretrial publicity." Id.
This decision was not contrary to or an unreasonable application of Irvin. Here, unlike in Irvin, the media covered the case less extensively, as evidenced by the lower percentage of people in Dothan who knew about it, and less prejudicially, as shown by the smaller percentage of Dothan citizens who held strong views about Hammonds' guilt. Perhaps most importantly, the news coverage did not contain reports of Hammonds' confession (because he didn't confess) whereas the local press in Irvin continually reported that the defendant had confessed to a string of gruesome murders. The Dothan press also appears to have refrained from running inflammatory or prejudicial commentary, which further weakens Hammonds' claims about prejudice. See Heath v. Jones, 941 F.2d 1126,
Next, Hammonds claims the Alabama courts ran afoul of Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). In that case the defendant, Rideau, confessed to a bank robbery, a kidnapping, and the murder of a hostage. The confession was recorded and televised three times, and reached up to a third of the population in the parish where the crime occurred. Under these facts, the Supreme Court decided that Rideau's recorded confession, which took place during an interrogation by the parish's sheriff, amounted to a kangaroo court that deprived him of due process. Rideau, 373 U.S. at 726-27, 83 S.Ct. 1417. Latching on to Rideau, Hammonds contends that the pretrial publicity in his case is indistinguishable and that any potential jurors exposed to it should be "disqualified from jury service no matter how earnestly he professes his impartiality." See Mu'Min v. Virginia, 500 U.S. 415, 441-42, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991) (Marshall, J., dissenting).
This Court cannot agree. Rideau presented extreme facts and a rare type of prejudice — the broadcast of a taped confession — that would make juror impartiality almost, if not wholly, impossible. As discussed above, the Constitution does not guarantee criminal defendants the right to a jury composed of jurors as pure as driven snow. See Meeks v. Moore, 216 F.3d 951, 960 (11th Cir.2000) (stating defendant is not "entitled to a change of venue whenever potential jurors have been exposed to the facts of the case."). Here, Hammonds has shown, at most, a high level of community interest and a somewhat intense amount of media coverage surrounding his trial. But he did not convince the state courts that this coverage infected the community with prejudice against him. Nor has he shown that those same courts acted contrary to or engaged in an unreasonable application of federal law when making this determination. His venue claim is therefore due to be denied.
As a general rule, preclusion does not bar the relitigation of questions of law on habeas corpus. See, e.g., Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953). This rule, however, has an exception: preclusion bars review of Fourth Amendment exclusionary rule claims. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); see also Cardwell v. Taylor, 461 U.S. 571, 572-73, 103 S.Ct. 2015, 76 L.Ed.2d 333 (1983) ("Federal courts [cannot], on a state prisoner's petition for a writ of habeas corpus, consider a claim that evidence obtained in violation of the Fourth Amendment should have been excluded at his trial, when the prisoner has had an opportunity for full and fair litigation of that claim in the state courts."); Harris v. Dugger, 874 F.2d 756, 761 (11th Cir.1989). The Stone Court reasoned that, because the exclusionary rule seeks to deter unconstitutional police action, and since it has little to do with the accuracy of the factfinding process, it would make little sense to allow a habeas petitioner to re-litigate such claims in federal
Recognizing Stone's applicability, Hammonds argues that he never had the opportunity to litigate his claim that the State violated his Fourth Amendment
In his habeas petition, Hammonds contends that the Alabama courts violated his right to meaningful appellate review by not providing a complete record. (Doc. # 6 at ¶¶ 110-15.) As discussed above, see supra, § IV.A.2., the procedural default doctrine bars the Court from hearing this claim.
Hammonds' habeas petition claims that the state trial court denied him the right to a fair trial by allowing the state to violate discovery orders. (Doc. # 6 at ¶¶ 116-19.) After deciding that Hammonds cannot establish cause and prejudice, this Court found that the procedural default doctrine prohibits reaching the merits of this claim. See supra, § IV.A.3.
Hammonds contends that a lack of funding compromised his efforts to mount a successful defense. (Doc. # 6 at ¶¶ 120-24.) As with the two claims discussed above, the procedural default doctrine bars the Court from hearing this claim. See supra, § IV.A.4.
In his habeas petition, Hammonds reasserts his arguments as they relate to his request for a mistrial and the trial court's failure to sanction Valeska. (Doc. # 6 at ¶ 125.) At the end of the one sentence making up Claim J, he refers back to the section of his petition related to Valeska's misconduct at trial. Hammonds does not
As with Claim J, Claim K does not present a standalone claim for relief. Hammonds' habeas petition once again refers back to the allegations related to Valeska's behavior, claiming that the trial court should have taken a different route than the one traveled at trial. (Doc. # 6 at ¶ 126.) Because Hammonds cites no case law to support his claim, and since he does not address the claim in his merits brief, the Court has no basis for finding that the state courts acted contrary to or unreasonably applied federal law when deciding not to declare a mistrial or sanction Valeska for his improper comments about Hammonds' incarceration.
Similar to Claims J and K, Hammonds' claim about the trial court admitting improper prejudicial evidence refers back to another part of his habeas petition. (Doc. # 6 at ¶ 127.) This time Hammonds makes reference to his ineffective assistance claim, arguing that the trial court erred by admitting "highly prejudicial, nonprobative evidence." (Id.) The Court deferred the procedural default analysis for this claim until now, because whether Hammonds could establish cause and prejudice turned on his ineffective assistance claim. See supra, § IV.A.5. Because this Court found that Hammonds' lawyers' failure to object to the disputed evidence did not amount to ineffective assistance, see supra, § IV.E.2.a, he did not establish the requisite cause and prejudice for failing to raise this claim for relief in state court. Therefore, Claim L is procedurally defaulted, and this Court is barred from ruling on the merits.
Hammonds contends that the State failed to provide him with crucial exculpatory and impeachment evidence. (Doc. # 6 at ¶¶ 128-31.) Although Hammonds cites relevant case law to support his claim, see, e.g., Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the procedural default doctrine bars the Court from hearing it on the merits. See supra, § IV.A.6.
Hammonds argues that the trial court erred by failing to instruct the jury that it must consider Hammonds' age at the time he committed the offense as a mitigating factor. (Doc. # 6 at ¶¶ 132-34.) However, the procedural default doctrine bars the Court from hearing this claim on the merits. See supra, § IV.A.7.
In his next claim for relief, Hammonds argues the trial court judge should have recused himself. (Doc. # 6 at ¶¶ 135-39.) According to Hammonds, the judge's former job as a city attorney gave him access to specific details related to Mitchell's murder and the attendant investigation. What is more, Hammonds argues, the trial judge had existing friendships with investigators that gave him a personal interest in the case's outcome. Hammonds properly raised these concerns on direct appeal, and the state appellate
The Alabama Court of Criminal Appeals decided there was "no reasonable basis for questioning the trial judge's impartiality." Hammonds v. State, 777 So.2d 750, 774-75 (Ala.Crim.App. 1999). So the appeals court held that Hammonds failed to carry his burden of proving the trial judge erred by declining to recuse himself. Id. at 775. The court of criminal appeals stated:
Id.
Hammonds takes issue with these findings on two grounds. First, he claims the appeals court made its findings based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d)(2). According to Hammonds, the record strongly suggests that Judge Anderson had greater knowledge about the case and stronger relationships with prosecution witnesses than the Alabama Court of Criminal Appeals let on. Second, he contends the state court acted contrary to, or engaged in an unreasonable application of, federal law, id. § 2254(d)(1), by finding that Judge Anderson had no duty to recuse. On this second point, Hammonds relies heavily on In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955), a case dealing with judicial recusal. The Court will address each contention in turn.
A federal habeas court must presume the correctness of the state courts' factual determinations. § 2254(e)(1). Hammonds can rebut this presumption, but only upon a showing of clear and convincing evidence. § 2254(e)(1). In his attempt to make such a showing, Hammonds claims that Judge Anderson's admission about having conversations about the case with his staff and three members of the Dothan Police Department means the Alabama Court of Criminal Appeals made an objectively unreasonable determination in concluding that Hammonds' claim of bias amounted to "mere supposition based on nothing more than the fact that the trial judge was acquainted with Dothan police officers." (Doc. # 95 at 141-42 (citing Hammonds v. State, 777 So.2d 750, 775 (Ala.Crim.App.1999)).)
But as the above-excerpted portion of the opinion shows, the criminal appeals court based its conclusion on ample evidence. It noted that Judge Anderson never represented Dothan in a manner related to Hammonds' case and he never advised the city on any issues related to it. Nor did he visit the crime scene, view any evidence, or speak with any family members. The evidence Hammonds relies on
"A fair trial in a fair tribunal is a basic requirement of due process." In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955). Yet, as the Supreme Court has noted, "most matters relating to judicial disqualification [do] not rise to a constitutional level." FTC v. Cement Inst., 333 U.S. 683, 702, 68 S.Ct. 793, 92 L.Ed. 1010 (1948). At common law, a trial court judge only had to recuse himself upon having "a direct, personal, substantial, pecuniary interest in reaching a conclusion against" a party to the case. Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 71 L.Ed. 749 (1927); see also Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 824, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986) (requiring recusal when judge's decision in a related case "had the clear and immediate effect of enhancing both the legal status and settlement value of his own case"). The Tumey Court adopted this common law rule — that a judge cannot hear a case in which he has a direct financial interest — as a constitutional due process requirement. In so doing, the Court limited the rule, stating that "matters of kinship, personal bias, state policy, [and] remoteness of interest, would seem generally to be matters merely of legislative discretion." Id.
Due process also requires recusal where the judge has a direct conflict arising from his participation in an earlier, related proceeding. In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955); Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974); Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971); Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). In Murchison, the case upon which Hammonds primarily relies, the judge questioned two witnesses in an initial proceeding to determine whether criminal charges should be brought. In other words, he acted as a "one-man grand jury." One of the witnesses answered the questions, but the judge found him untruthful and charged him with perjury; the other declined to answer, so the judge held him in contempt. He then tried and convicted both men in a second proceeding.
Under these facts, the Murchison Court set aside the convictions of the two men, citing the hoary principle that "no man can be a judge in his own case," and adding that "no man is permitted to try cases where he has an interest in the outcome." Id. at 136, 75 S.Ct. 623. But just like how the Tumey Court elicited a number of limiting principles, so too did the Murchison Court. It achieved this by carefully dividing non-pecuniary interest recusal cases into two categories. In the first category, which requires recusal, are cases where the trial judge is "more a part of the accusatory process," like the judge in Murchison who sat as a one-man grand jury.
This Court cannot say that the Alabama Court of Criminal Appeals acted contrary to Murchison or applied it unreasonably. Judge Anderson took no part in investigating Hammonds, interviewing witnesses, or coordinating legal action against him. Nor did his past attorney-client relationship as a civil lawyer for Dothan create the appearance of bias. Put simply, nothing in the record cited upsets the "presumption of honesty and integrity" vested in Judge Anderson and which extends to "those serving as adjudicators." Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975); see also Republican Party of Minn. v. White, 536 U.S. 765, 796, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002) (Kennedy, J., concurring) ("We should not, even by inadvertence, `impute to judges a lack of firmness, wisdom, or honor'" (quoting Bridges v. California, 314 U.S. 252, 273, 62 S.Ct. 190, 86 L.Ed. 192 (1941))). Moreover, because Judge Anderson never presided over an earlier case involving Hammonds, and since Hammonds' case did not involve criminal contempt, this case is readily distinguishable from Murchison. Accordingly, Hammonds' claim based on Judge Anderson's decision not to recuse himself is due to be denied.
In his habeas petition, Hammonds claims that certain jurors improperly considered extraneous evidence during deliberations. (Doc. # 6 at ¶¶ 140-44.) First he cites juror Andrea Chavez, asserting that she used her cell phone to call her husband while sequestered. Next he cites jurors Michael Hall and Sherron Farmer, arguing they violated his rights and the trial court's orders by talking about his case during breaks in trial.
The Alabama Court of Criminal Appeals rejected these arguments. In so doing, the court focused on how Hammonds "presented no evidence whatsoever at the evidentiary hearing to support these claims; he called no jurors to testify, nor did he introduce any affidavits from jurors." (Vol. 51, R. 83, at 12.) Hammonds declined to address the state court's decision in his merits brief, and failed to submit any evidence showing that the jurors did what he claims. And even assuming the jurors acted improperly, Hammonds does not argue that he suffered prejudice. Still, the Court will address his claim by asking whether the state court acted contrary to or unreasonably applied federal law.
The Supreme Court has held that deliberating jurors cannot consider evidence other than that submitted at trial. See, e.g., Turner v. Louisiana, 379 U.S. 466, 472-73, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965) (holding jury must base verdict on evidence coming "from the witness stand in a
Hammonds alleges that a number of jurors failed to respond accurately to voir dire questions, thereby depriving him of his right to an impartial jury. (Doc. # 6 at ¶¶ 145-49.) According to Hammonds, juror Don Jones failed to disclose that he knew four potential witnesses (id. at ¶ 146); two jurors, Jimmie Bryant and Vera Hayles, concealed that they knew Hammonds was in jail for an unrelated crime (id. at ¶ 147); and jurors Jimmie Bryant and Andrea Chavez never mentioned that they had family members who worked in law enforcement or had friends that did (id. at ¶ 148). The Alabama Court of Criminal Appeals denied Hammonds relief on these claims, because he "presented no evidence whatsoever at the evidentiary hearing to support [them]; he called no jurors to testify, nor did he introduce any affidavits from jurors." (Vol. 51, R. 83, at 12.)
In light of the lack of evidence adduced by Hammonds on these claims, the Alabama Court of Criminal Appeals did not err by denying relief. Hammonds did not call Jones, Bryant, or Hayles to testify. Nor did he have them submit affidavits to his Rule 32 or habeas petitions. As a result, the state court of criminal appeals did not act contrary to or unreasonably apply federal law by denying Hammonds' request for relief.
Hammonds contends that, during jury selection, juror James Adkinson disclosed that he had a close relationship with the victim's father. (Doc. # 6 at ¶ 150.) According to Hammonds, this required Adkinson's dismissal for cause. (Id. at ¶ 151.) However, the procedural default doctrine bars the Court from hearing this claim. See supra, § IV.A.10.
In his habeas petition, Hammond claims the trial court should have refused to sit a number of jurors. (Doc. # 6 at ¶ 152-55.) But like with Claim R, the procedural default doctrine bars the Court from hearing this claim on the merits. See supra, § IV.A.11.
In Claim T, Hammonds contends that Judge Anderson failed to act impartially during his trial. (Doc. # 6 at ¶ 156-64.) Because this claim is in procedural default, the Court must refrain from hearing it on the merits as well. See supra, § IV.A.12.
As with a number of claims discussed above, the procedural default doctrine bars the Court from hearing this claim. See supra, § IV.A.13.
For the reasons discussed above, it is hereby ORDERED that Artez Hammonds' Amended Petition for a Writ of Habeas Corpus (Doc. # 6) is DENIED.
