W. KEITH WATKINS, Chief District Judge.
Petitioner Tony Barksdale filed this federal habeas corpus action pursuant to 28 U.S.C. § 2254 challenging his November 1996 Tallapoosa County conviction for capital murder and sentence of death. For the reasons set forth below, Petitioner is not entitled to either habeas corpus relief or a Certificate of Appealability.
Late on the afternoon of December 1, 1995, Petitioner Tony Barksdale fatally shot 19-year-old Julie Rhodes twice — one in the face and once in the back. That fact has never been in genuine dispute. The circumstances under which Petitioner twice shot his victim, however, were actively contested and litigated fully during Petitioner's November 1996 capital murder trial.
The Alabama Court of Criminal Appeals' opinion affirming Petitioner's conviction and sentence of death includes the following description of the relevant circumstances surrounding Petitioner's fatal shooting of Julie Rhodes, which quotes extensively from the trial court's Sentencing Order
Barksdale v. State, 788 So.2d 898, 901-02 (Ala. Crim. App. 2000), cert. denied, 788 So.2d 915 (Ala. 2000), cert. denied, 532 U.S. 1055 (2001) (Footnotes added).
On February 9, 1996, a Tallapoosa County grand jury indicted Petitioner and David Garrison on three counts of capital murder, i.e., three different theories concerning the fatal shooting of Julie Rhodes.
Although arrested with Petitioner and Garrison, by the time of Petitioner's capital murder trial Kevin Hilburn was deceased.
Jury selection in Petitioner's capital murder trial commenced on November 11, 1996.
In addition to the testimony summarized above in Section I.A., the prosecution presented and the jury heard testimony from (1) Julie's co-workers and grandmother about the events of the evening in question,
A surgeon who treated Julie in the emergency room and operated on her at the hospital in Alexander City testified regarding her injuries and his surgical team's efforts to stabilize her prior to her transport to Birmingham.
A previous owner of the pistol Petitioner used to fatally shoot Julie Rhodes testified that he bought the gun new and it jammed the first time he fired it. He had repeated problems with the mechanism that pulls the spent shell casing out of the chamber after firing. The clip that holds the retainer on the side would slide out and also cause the gun to jam, The gun's safety also moved back and forth when the gun was fired repeatedly. He traded the gun in to a dealer in 1992. He had no idea what had happened to the gun in the intervening years but, after examining it on the stand at Petitioner's trial, it was apparent that "someone has done extensive work on it." The gun now had a new grip. The gun was a single action semi-automatic that had to be cocked the first time before it would fire, i.e., if you fire it twice, you have to pull the trigger twice. He told police he had never experienced any type of accidental discharge of the weapon.
The law enforcement officer who interviewed Petitioner on December 4, 1995 identified an audio tape recording of that interview that was played in open court for the jury as part of the prosecution's case-in-chief.
The prosecution concluded its case by calling Petitioner's co-defendant arrison to testify that he, Hilburn, and Petitioner stole a Taurus they found unlocked and drove the stolen Taurus to Alexander City. Near Sylacauga they totaled the car, i.e., drove off the road, ran over a fence, and ran into a dirt bank. A nearby homeowner agreed to drive them to Alexander City. The man dropped them off at a white house. Later they got a ride from a black guy into Alexander City to the Knollwood apartments. Later still they tried to flag down rides as they walked along the road. When it got dark, a white couple in a black truck picked them up and drove them to the Alexander City shopping center, from which they watched some of the Christmas parade. They looked for someone who would drive them back to Guntersville. Petitioner said if he had to, he would shoot someone to get a ride and preferred to shoot one person rather than two. Petitioner spoke with the female driver of a gray Maxima who agreed to give them a ride. Petitioner gave the driver directions and directed her to turn up the rap music to which she was listening. Petitioner directed her to drive into a neighborhood and to stop, The driver did as Petitioner directed. All three passengers opened their doors to get out of the car. Garrison set the Christmas packages he had been holding on the seat and saw Petitioner reach for his gun. Garrison slammed his door closed as he exited the vehicle and ran behind a shed behind a house. Hilburn followed Garrison. As they ran, they heard the female driver yell "Please don't, don't shoot me." The female driver mashed on the gas pedal and pulled into a driveway. Dogs ran up to the car barking. Garrison heard Petitioner yell "Bitch, you ain't going to let me out right here." The female driver backed the car out of the driveway into the road facing the opposite direction she had been moving.
Garrison testified he then heard two gunshots. He could see flashes of light through the tinted windows of the car as the car was still rolling. Garrison heard the emergency brake being pulled and tires squealing. He saw the female driver get out and Petitioner push her in the back away from the car. The female driver ran down the street. Garrison could hear her crying. Petitioner could see Garrison and Hilburn behind the shed, pointed the gun at them, and told them to get back in the car. Garrison and Hilburn got back in the car. Petitioner was wearing jeans and a stolen white jacket. They drove back to the white house. There was blood inside the car and a hole in the front driver's side window. They went to an older woman's house and took everything from inside the car into her house. Petitioner told the older woman he had just shot a girl but didn't know if she was dead. They got back in the car and drove to Guntersville. On the drive back to Guntersville, Petitioner told them to keep their mouths shut and not tell anyone what had happened. In Gunterville, they went to a place near the Kiwanis Pier where teenagers hang out. Later they went to Candace Talley's apartment. Petitioner still had his gun. They threw the Tallapoosa County license plate and smiley face front license plates off the stolen car into the lake. Petitioner told everyone at Candace Talley's apartment that he shot the girl by accident, but Petitioner never told Garrison that he shot her by accident.
The defense presented a single witness at the guilt-innocence phase of trial, a firearms expert, who testified that (1) he had examined the 9 mm pistol identified as State Exhibit 76A in October 1996, (2) all the safeties worked according to design, (3) inserting the magazine in the unloaded weapon caused the safety to move from safe position to fire position, (4) inserting the magazine caused the slide release hold to disconnect itself, chambering a round, (5) while laying on its side, the gun's slide release disconnected, allowing the slide to move forward without anyone touching the gun, (6) once while he test-fired the gun, it jammed and he had to forcibly open the slide to extract the spent shell casing from the chamber of the weapon, (7) when he tried to unload the gun by cycling the slide, i.e., by putting each round in the chamber and ejecting it without firing, the first magazine went okay but the second magazine jammed, (8) the overall condition of the weapon was bad — it had been abused substantially, and (9) employing photographs of the gun, he was able to identify numerous marks and indentations on the gun.
During the guilt-innocence phase jury charge conference the trial judge expressed grave reservations with the viability of the third count of the indictment against Petitioner under the evidence presented.
On November 24, 1996, following closing jury argument,
The punishment phase of Petitioner's capital murder trial commenced the same date. Both parties waived opening argument. Other than re-offering all of the evidence previously introduced and admitted, the prosecution presented only a redacted version of a certified copy of Petitioner's judgment of conviction from Virginia on a charge of robbery, which exhibit the trial court admitted without objection; then the prosecution rested.
At Petitioner's sentencing hearing on December 17, 1996, both parties informed the trial court they had no additional evidence to present and focused their arguments primarily on whether Petitioner's offense qualified as "heinous, atrocious, and cruel."
Petitioner appealed his conviction and sentence.
On May 22, 2002, Petitioner filed his petition for relief from judgment pursuant to Rule 32, asserting nineteen multifaceted claims for relief.
The Circuit Court held an evidentiary hearing on Petitioner's surviving claims on June 23-24, 2005, during which it heard testimony from Petitioner's mother, Petitioner's former trial counsel, a retired Marine Lieutenant Colonel, and a North Carolina trial attorney. In an Order issued October 4, 2005, the Circuit denied relief on Petitioner's remaining claims, concluding Petitioner's ineffective assistance claim addressing his trial counsel's alleged failure to investigate and present mitigating evidence failed to satisfy the prejudice prong of the Strickland standard and Petitioner failed to present any evidence whatsoever in support of his complaint about alleged emotional displays by the victim's family before the jury.
Petitioner appealed the trial court's denial of his Rule 32 petition.
On May 2, 2008, Petitioner filed his original federal habeas corpus petition, asserting three extremely broad categories of claims for relief (Doc. # 1).
The state appellate courts rejected most of Petitioner's claims in this federal habeas corpus proceeding on the merits, either on direct appeal or during Petitioner's Rule 32 proceeding. Because petitioner filed his federal habeas corpus action after the effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), review of petitioner's claims for federal habeas corpus relief which were disposed of on the merits by the state courts is governed by the AEDPA. Penry v. Johnson, 532 U.S. 782, 792 (2001). Under the AEDPA standard of review, Petitioner is not entitled to federal habeas corpus relief in connection with any claim that was adjudicated on the merits in state court proceedings, unless the adjudication of that claim either: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Brown v. Payton, 544 U.S. 133, 141 (2005); Williams v. Taylor, 529 U.S. 362, 404-05 (2000); 28 U.S.C. § 2254(d).
The Supreme Court has concluded the "contrary to" and "unreasonable application" clauses of 28 U.S.C. § 2254(d) (1) have independent meanings. Bell v. Cone, 535 U.S. 685, 694 (2002). Under the "contrary to" clause, a federal habeas court may grant relief if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or the state court decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Brown v. Payton, 544 U. S. at 141; Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) ("A state court's decision is `contrary to' our clearly established law if it `applies a rule that contradicts the governing law set forth in our cases' or it `confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.'"). A state court's failure to cite governing Supreme Court authority does not, per se, establish the state court's decision is "contrary to" clearly established federal law: "the state court need not even be aware of our precedents, `so long as neither the reasoning nor the result of the state-court decisions contradicts them.'" Mitchell v. Esparza, 540 U. S. at 16.
Under the "unreasonable application" clause, a federal habeas court may grant relief if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the petitioner's case. Brown v. Payton, 544 U. S. at 141; Wiggins v. Smith, 539 U.S. 510, 520 (2003). A federal court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." McDaniel v. Brown, 558 U.S. 120, 132-33 (2010) ("A federal habeas court can only set aside a state-court decision as `an unreasonable application of . . . clearly established Federal law,' § 2254(d) (1), if the state court's application of that law is `objectively unreasonable.'"); Wiggins v. Smith, 539 U. S. at 520-21. The focus of this inquiry is on whether the state court's application of clearly established federal law was objectively unreasonable; an "unreasonable" application is different from a merely "incorrect" one. Schriro v. Landrigan, 550 U.S. 465, 473 (2007) ("The question under the AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable — a substantially higher threshold."); Wiggins v. Smith, 539 U. S. at 520; Price v. Vincent, 538 U.S. 634, 641 (2003) ("it is the habeas applicant's burden to show that the state court applied that case to the facts of his case in an objectively unreasonable manner").
As the Supreme Court has explained:
Bobby v. Dixon, 565 U .S. 23, 24 (2011) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).
Legal principles are "clearly established" for purposes of AEDPA review when the holdings, as opposed to the dicta, of Supreme Court decisions as of the time of the relevant state-court decision establish those principles. Yarborough v. Alvarado, 541 U.S. 652, 660-61 (2004) ("We look for `the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'"); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Under the AEDPA, what constitutes "clearly established federal law" is determined through review of the decisions of the United States Supreme Court, not the precedent of the federal Circuit Courts. See Lopez v. Smith, 135 S.Ct. 1, 2 (2014) (holding the AEDPA prohibits the federal courts of appeals from relying on their own precedent to conclude a particular constitutional principle is "clearly established").
The AEDPA also significantly restricts the scope of federal habeas review of state court fact-findings. 28 U.S.C. § 2254(d)(2) provides federal habeas relief may not be granted on any claim that was adjudicated on the merits in the state courts unless the state court's adjudication of the claim resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Wood v. Allen, 558 U.S. 290, 301 (2010) ("[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance."); Williams v. Taylor, 529 U. S. at 410 ("[A]n unreasonable application of federal law is different from an incorrect application of federal law."). Even if reasonable minds reviewing the record might disagree about the factual finding in question (or the implicit credibility determination underlying the factual finding), on habeas review, this does not suffice to supersede the trial court's factual determination. Wood v. Allen, 558 U. S. at 301; Rice v. Collins, 546 U.S. 333, 341-42 (2006).
In addition, § 2254(e)(1) provides a petitioner challenging state court factual findings must establish by clear and convincing evidence that the state court's findings were erroneous. Schriro v. Landrigan, 550 U. S. at 473-74 ("AEDPA also requires federal habeas courts to presume the correctness of state courts' factual findings unless applicants rebut this presumption with `clear and convincing evidence.'"); Rice v. Collins, 546 U. S. at 338-39 ("State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by `clear and convincing evidence.'"); Miller-El v. Dretke, 545 U.S. 231, 240 (2005) ("[W]e presume the Texas court's factual findings to be sound unless Miller-El rebuts the `presumption of correctness by clear and convincing evidence.'"); 28 U.S.C. §2254(e)(1). It remains unclear at this juncture whether § 2254(e)(1) applies in every case presenting a challenge to a state court's factual findings under § 2254(d)(2). See Wood v. Allen, 558 U. S. at 300 (choosing not to resolve the issue of § 2254(e)(1)'s possible application to all challenges to a state court's factual findings); Rice v. Collins, 546 U. S. at 339 (likewise refusing to resolve the Circuit split regarding the application of § 2254(e)(1)).
However, the deference to which state-court factual findings are entitled under the AEDPA does not imply an abandonment or abdication of federal judicial review. See Miller-El v. Dretke, 545 U. S. at 240 (the standard is "demanding but not insatiable"); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) ("Even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief.").
In his second group of claims for federal habeas corpus relief, Petitioner argues the state habeas court committed a litany of errors during his Rule 32 proceeding, including adopting verbatim the State's proposed findings and conclusions, improperly limiting the scope of his discovery, and erroneously applying state procedural and evidentiary rules.
Federal habeas corpus relief does not lie for errors of state law, including the allegedly erroneous admission of evidence under state evidentiary rules. Estelle v. McGuire, 502 U.S. 62, 67 (1991). It is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. Id., 502 U. S. at 67-68. State court rulings on matters such as the admissibility of evidence under state evidentiary rules and the interpretation of substantive state case law bind a federal court in habeas corpus proceedings. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) ("We have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."); Loggins v. Thomas, 654 F.3d 1204, 1228 (11th Cir. 2011) ("Alabama law is what the Alabama courts hold that it is."); Hendrix v. Sec'y, Fla. Dep't of Corr., 527 F.3d 1149, 1153 (11th Cir.) (state court ruling on issue of recusal under Florida state law bound federal habeas court), cert. denied, 555 U.S. 1004 (2008).
Furthermore, defects in state collateral proceedings do not provide a basis for federal habeas relief. See Alston v. Dep't of Corr., Fla., 610 F.3d 1318, 1325-26 (11th Cir. 2010) (federal habeas relief is available to remedy defects in a defendant's conviction and sentence but not alleged defects in a collateral proceeding because a challenge to a state collateral proceeding does not undermine the legality of the detention or imprisonment), cert. denied, 562 U.S. 1113 (2010); Carroll v. Sec'y, Dep't of Corr. 74 F.3d 1354, 1365 (11th Cir.) ("a challenge to a state collateral proceeding does not undermine the legality of the detention or imprisonment, i.e., the conviction itself-and thus habeas relief is not an appropriate remedy"), cert. denied, 558 U.S. 995 (2009); Quince v. Crosby, 360 F.3d 1259, 1261-62 (11th Cir.) ("an alleged defect in a collateral proceeding does not state a basis for habeas relief"), cert. denied, 543 U.S. 960 (2004). Furthermore, such challenges often involve issues of state law, and a state's interpretation of its own laws or rules provides no basis for federal habeas corpus relief since no question of a constitutional nature is involved. Alston v. Dep't of Corr., Fla., 610 F.3d at 1326.
Petitioner's complaints of alleged error committed by the state trial court during Petitioner's Rule 32 proceeding, i.e., the arguments contained in paragraphs 104 through 195 of Petitioner's federal habeas corpus petition, do not furnish an arguable basis for federal habeas corpus relief. In light of the Supreme Court's holdings in Bradshaw v. Richey and Estelle v. McGuire, these voluminous complaints are without arguable legal basis and potentially a violation of Rule 11(b)(1) & 11(b)(2), Fed.R.Civ.P.
In his third group of claims for federal habeas relief, Petitioner argues that the state trial court committed a variety of constitutional errors, including (1) refusing to give Petitioner's requested jury instructions on accident, (2) giving a misleading instruction on the burden of proof regarding mitigation, (3) finding Petitioner's offense was "heinous, atrocious, or cruel," (4) refusing to consider Petitioner's age as a mitigating circumstance, (5) failing to hold the State of Alabama's method of execution (at that time electrocution) was cruel and unusual, (6) failing to hold the Alabama capital sentencing scheme violates equal protection principles by disproportionately resulting in the conviction and capital sentencing of black men, (7) failing to hold Petitioner's indictment under three different theories of capital murder and conviction on two different counts of capital murder violated Double Jeopardy principles, (8) failing to hold the prosecution improperly compared Petitioner to the Nazis and Adolf Hitler during closing jury argument, and (9) improperly employing Petitioner's convictions on multiple theories of capital murder as separate and independent aggravating circumstances.
In his second ground for relief on direct appeal, Petitioner argued the state trial court erred at the guilt-innocence phase of trial in refusing to give Petitioner's requested jury instructions on "accident," citing the Supreme Court's holding in Beck v. Alabama, 447 U.S. 625, 627-38 (1980) (a sentence of death may not be constitutionally imposed after a jury verdict of guilt of a capital offense when the jury was not permitted to consider a verdict of guilt of a non-capital offense when the evidence would have supported such a verdict).
As noted previously, federal habeas corpus relief does not lie for errors of state law, including the allegedly erroneous admission of evidence under state evidentiary rules. Estelle v. McGuire, 502 U. S. at 67. It is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. Id., 502 U. S. at 67-68. State court rulings on matters such as the admissibility of evidence under state evidentiary rules and state case law bind a federal court in habeas corpus proceedings. See Bradshaw v. Richey, 546 U.S. at 76 ("We have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."); Loggins v. Thomas, 654 F.3d at 1228 ("Alabama law is what the Alabama courts hold that it is.").
Petitioner's audio-recorded statement to police and the identifying testimony of a law enforcement officer established that, following his arest, Petitioner told police he did not intentionally shoot Julie Rhodes.
The state trial court instructed Petitioner's jury at the guilt-innocence phase of trial that the jury was required to find beyond a reasonable doubt that Petitioner intentionally murdered Julie Rhodes in the course of committing or attempting to commit a robbery before it could return a guilty verdict to count one of the indictment.
The state trial court furnished Petitioner's jury the means to find Petitioner guilty of several different lesser-included offenses, including manslaughter and criminally negligent homicide, had the jury concluded that Petitioner's fatal shooting of Julie Rhodes was not an intentional act. Petitioner does not challenge the sufficiency of the evidence supporting the jury's guilty verdicts at the guilt-innocence phase of trial. The jury's unanimous guilty verdicts, rendered beyond a reasonable doubt, necessarily precluded a finding that Petitioner's fatal shooting of Julie Rhodes was accidental. The state trial court's rejection of Petitioner's requested jury instructions on "accident" did not violate Petitioner's federal constitutional rights.
The Alabama appellate court's rejection on the merits during Petitioner's direct appeal of Petitioner's complaint about the state trial court's refusal to give Petitioner's requested jury instruction on "accident" was neither contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial and direct appeal proceedings. Paragraphs 199-200 of Petitioner's federal habeas corpus petition do not warrant federal habeas corpus relief.
At the conclusion of the evidentiary portion of the punishment phase of Petitioner's capital murder trial, i.e., after both parties rested, the trial judge instructed the jury as follows:
At that point, a brief side bar conference took place. The trial judge then continued with his punishment phase jury instructions as follows:
After counsel for both parties completed their closing argument at the punishment phase, the trial judge continued his jury instructions as follows:
At that point, the trial judge retired to confer with counsel and the following took place in chambers:
The trial judge and counsel then returned to the courtroom, where the following took place:
Petitioner did not include any argument in his brief on direct appeal challenging the trial court's jury instructions at the punishment phase of trial. In his sixth ground for relief in his Rule 32 petition, however, Petitioner argued the trial court's punishment phase jury instructions erroneously imposed a burden on the defense to prove the existence of mitigating circumstances to the point the jury was "reasonably satisfied" of the truth of the mitigating factor and instructed the jury it had to unanimously find a mitigating circumstance existed before that circumstance could be weighed against the aggravating circumstances.
On appeal from the denial of Petitioner's Rule 32 petition, the Alabama Court of Criminal Appeals held (1) the trial court erroneously dismissed Petitioner's complaint about the trial court's unanimity instruction regarding mitigating evidence under Rule 32(a)(3), but (2) the trial court correctly dismissed Petitioner's complaint about the trial court's erroneous unanimity instruction pursuant to Rule 32(a)(5) based on Petitioner's failure to raise that claim on direct appeal, and (3) Petitioner waived his complaint about the trial court's imposition of an erroneous burden of proof on the jury's consideration of mitigating evidence by failing to raise that complaint in Petitioner's brief appealing the Circuit Court's denial of his Rule 32 petition.
The Supreme Court has established the constitutional standard for evaluating the propriety of a jury instruction at the punishment phase of a capital murder trial as "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Boyde v. California, 494 U.S. 370, 380 (1990). The Supreme Court has consistently applied this standard to evaluate challenges to punishment-phase jury instructions. See Weeks v. Angelone, 528 U.S. 225, 226 (2000) (emphasizing the Boyde test requires a showing of a reasonable likelihood, as opposed to a mere possibility, the jury construed the jury instructions to preclude its consideration of relevant mitigating evidence); Jones v. United States, 527 U.S. 373, 390 & n.9 (1999) (holding the same); Calderon v. Coleman, 525 U.S. 141, 146 (1998) (holding the same); Buchanan v. Angelone, 522 U.S. 269, 276 (1998) (holding the same); Johnson v. Texas, 509 U.S. 350, 367 (1993) (holding Boyde requires a showing of a reasonable likelihood the jury interpreted the jury instructions so as to preclude it from considering relevant mitigating evidence).
This "reasonable likelihood" standard does not require the petitioner to prove the jury "more likely than not" interpreted the challenged instruction in an impermissible way; however, the petitioner must demonstrate more than "only a possibility" of an impermissible interpretation. Johnson v. Texas, 509 U. S. at 367; Boyde v. California, 494 U. S. at 380. This Court must analyze the challenged language included in the jury charge within the context of the overall jury charge. Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). "In evaluating the instructions, we do not engage in a technical parsing of this language of the instructions, but instead approach the instructions in the same way that the jury would—with a `commonsense understanding of the instructions in the light of all that has taken place at the trial.'" Johnson v. Texas, 509 U. S. at 368; Boyde v. California, 494 U. S. at 381.
Because the state trial and appellate courts disposed of Petitioner's complaints of allegedly erroneous punishment phase jury instructions on procedural grounds, without addressing the merits of those claims, this court's review of Petitioner's federal constitutional claims is de novo.
The state trial court erred under state law when it failed to instruct the jury at the punishment phase of Petitioner's capital murder trial in a manner consistent with Alabama Code §13A-5-45(g):
It is well-settled, however, that a jury instruction that is defective under state law does not furnish a basis for federal habeas corpus relief unless the alleged errors were so critical or important to the outcome of the trial to render the entire trial fundamentally unfair. Tejada v. Dugger, 941 F.2d 1551, 1560 (11th Cir. 1991) (quoting Carrizales v. Wainwright, 699 F.2d 1053, 1054 (11th Cir. 1983)), cert. denied sub nom Tejada v. Singletary, 502 U.S. 1105 (1992). A jury instruction that was allegedly incorrect under state law is not a basis for habeas relief because federal habeas review is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States. Estelle v. McGuire, 502 U.S. 62, 68-72 (1991); Jamerson v. Sec'y for Dep't of Corr., 410 F.3d 682, 688 (11th Cir. 2009). Unlike state appellate courts, federal courts on habeas review are constrained to determine only whether the challenged instruction, viewed in the context of both the entire charge and the trial record, "so infected the entire trial that the resulting conviction violated due process." Estelle v. McGuire, 502 U. S. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)); Jamerson v. Sec'y for Dep't of Corr., 410 F.3d at 688.
The state trial court's erroneous use of the term "reasonably satisfied" to instruct Petitioner's jury on the burden of proof applicable to a mitigating circumstance did not render the punishment phase of Petitioner's capital murder trial fundamentally unfair. There was no factual dispute as to the existence of the mitigating circumstances identified by either the trial court in its punishment phase jury instructions
Thus, there was no genuine factual dispute at the punishment phase of Petitioner's capital murder trial over the existence of mitigating circumstances showing that Petitioner was only eighteen years old at the time of the offense, others were involved in the same offense, and one of Petitioner's co-defendants had received a sentence of life imprisonment with the possibility of parole. The trial court instructed the jury it could consider each of those mitigating factors.
The state trial court's instructions informing the jury that it could only consider those mitigating circumstances which it unanimously concluded had been established by the evidence were inconsistent with the Supreme Court's holding in Mills v. Maryland, 486 U.S. 367 (1988). In Mills, the Supreme Court rejected a capital sentencing system in a weighing jurisdiction in which the jury was informed, both through the trial court's jury instructions as well as the verdict form, that it could not consider a mitigating circumstance or even particular mitigating evidence unless the jury unanimously agreed upon the existence of that particular mitigating circumstance:
Mills v. Maryland, 486 U. S. at 384. Had the trial court's punishment phase jury instructions not been corrected, a constitutional error would have occurred.
As explained above in Section IV.C.1., however, immediately after the trial court gave the erroneous instruction in question, Petitioner's trial counsel called the trial court's attention to the constitutional error and requested a corrective instruction consistent with the holding in Mills. The prosecutor agreed the trial court's instruction was inconsistent with the Supreme Court's holding in Mills and the underlying theme of Supreme Court opinions suggesting that, when it comes to mitigating evidence, "anything goes."
Petitioner argues the trial court's attempts at correcting its erroneous statements regarding the need for a unanimous determination of the existence of mitigating circumstances were confusing and ambiguous. While admittedly less than pristine, the state trial court's remedial instructions were sufficient to alert the jury to the fact the jury need not unanimously agree upon a particular mitigating circumstance before weighing that mitigating circumstance against the aggravating circumstances established by the evidence. "In evaluating the instructions, we do not engage in a technical parsing of this language of the instructions, but instead approach the instructions in the same way that the jury would—with a `commonsense understanding of the instructions in the light of all that has taken place at the trial.'" Johnson v. Texas, 509 U. S. at 368; Boyde v. California, 494 U. S. at 381.
As explained above, the three mitigating circumstances of Petitioner's age, the participation of others, and the sentence of a co-defendant were established by overwhelming, uncontroverted, uncontested evidence. Petitioner identifies no other mitigating circumstances properly before the jury at the punishment phase of his capital murder trial that he believes his jury was unable to consider adequately in light of the allegedly defective punishment phase jury instructions. Under such circumstances, there is no reasonable likelihood the jury applied the challenged instruction in a way that prevented the jury's consideration of constitutionally relevant evidence. Boyde v. California, 494 U. S. at 380.
After conducting an independent, de novo review, Petitioner's complaints about the defects in his punishment phase jury instructions do not warrant federal habeas corpus relief. Paragraphs 201 and 202 of Petitioner's federal habeas corpus petition do not warrant federal habeas relief.
In its Sentencing Order issued January 14, 1997, the Circuit Court concluded Petitioner's capital offense was "especially heinous, atrocious or cruel compared to other capital offenses," in part because (1) Petitioner had an apparent fascination with his weapon and stated he would use it to shoot someone, (2) Petitioner "had no moral compunction against killing a stranger to get his way, and prove to his companions that he could accomplish his stated goal, regardless of the consequences," (3) Petitioner committed the murder without conscience and without pity, (4) for a period of time, Petitioner appeared to be exhilarated by the crime, (5) one of the gunshots that struck Julie Rhodes struck her in the face, entered her neck, exited through the side of her shoulder, and still had enough force to make a bullet hole in the driver-side window, (6) Julie was also shot in the back, with that bullet penetrating her liver, exiting her abdomen, and lodging in her leg, (7) Julie's injuries were painful and caused profuse bleeding, (8) Petitioner dumped her in the street and left her there, (9) Julie experienced significant pain of which she was acutely aware, (10) she was acutely aware she had been assaulted by a deadly weapon, (11) she screamed for help, (12) at the scene and during her transport to the hospital, she knew and expressed the fear that she was about to die, (13) her torment lasted a significant amount of time, (14) while Petitioner may not have intentionally caused Julie's emotional suffering and mental distress, Petitioner deliberately did the acts which caused them as a natural and probable consequence of his actions, (15) this is not a case in which the victim was murdered swiftly without awareness of the circumstances that would lead to her death, (16) Petitioner acted without regard to the consequences of his action to the victim, consciously and pitilessly, and (17) the victim suffered torture, fear, and pain.
In his third ground for relief on direct appeal, Petitioner argued the trial court erred in finding at the punishment phase of trial that Petitioner's offense was heinous, atrocious, or cruel.
Barksdale v. State, 788 So. 2d at 907-08 (Citations omitted and Footnote added). The Alabama Supreme Court denied certiorari. Ex parte Tony Barksdale, 788 So. 2d at 915.
There is no "clearly established" federal constitutional authority mandating state appellate review of the evidentiary sufficiency underlying a capital sentencing jury's (or capital sentencing court's) consideration and weighing of aggravating factors beyond the Supreme Court's holding in Jackson v. Virginia, 443 U.S. 307 (1979). See Lewis v. Jeffers, 497 U.S. 764, 781-84 (1990) ("in determining whether a state court's application of its constitutionally adequate aggravating circumstance was so erroneous as to raise an independent due process or Eighth Amendment violation, we think the more appropriate standard of review is the `rational factfinder' standard established in Jackson v. Virginia." (Citation omitted)). In Jackson, the Supreme Court declared the proper standard for evaluating the sufficiency of the evidence to support a criminal conviction is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Lewis v. Jeffers, 497 U. S. at 781 (quoting Jackson v. Virginia, 443 U. S. at 319).
Lewis v. Jeffers, 497 U. S. at 782 (quoting Jackson v. Virginia, 443 U. S. at 319).
Id., at 783.
Insofar as Petitioner's claim attacks the state appellate court's application of state law, this claim fails to furnish a basis for federal habeas corpus relief. See Estelle v. McGuire, 502 U. S. at 67-68 (federal habeas relief does not lie for errors of state law and it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions). State court rulings on matters such as the requirements of state case law bind a federal court in habeas corpus proceedings. See Bradshaw v. Richey, 546 U. S. at 76 ("We have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."); Loggins v. Thomas, 654 F.3d at 1228 ("Alabama law is what the Alabama courts hold that it is."). Thus, insofar as Petitioner argues the state appellate court erroneously construed or applied state law in affirming the Circuit Court's Sentencing Order finding that Petitioner's capital offense was especially heinous, atrocious, or cruel, Petitioner's argument furnishes no basis for federal habeas relief.
Viewed in the light most favorable to the prosecution, the evidence at Petitioner's capital murder trial established that (1) Petitioner convinced Julie Rhodes to give him and his two companions a ride on a December evening,
Alabama law defines "especially heinous, atrocious, or cruel" as encompassing those "conscienceless or pitiless homicides which are unnecessarily torturous to the victim." Ex parte Key, 891 So.2d 384, 389 (Ala.) (quoting Ex parte Kyzer, 399 So. 330, 334 (Ala. 1981)), cert. denied, 543 U.S. 1005 (2004).
Judged by any rational standard, Julie Rhodes's death was extremely painful physically (her injuries included a fractured jaw, broken teeth, a fractured rib, ruptured liver, damaged larynx and jugular vein, a neck hematoma, and bullet wounds in her jaw, neck, shoulder, back, abdomen, left thigh and left calf).
The circumstances of Petitioner's fatal shooting of Julie demonstrated his utter disregard for her life and the pain he inflicted upon her. While Petitioner told an acquaintance that his gun accidentally went off while he was shaking it in Julie's face in an effort to get her out of the vehicle, Petitioner did not tell the same friend that he ever gave Julie a reasonable opportunity to exit her vehicle before his gun went off the first time, possibly in her face.
Viewed in the light most favorable to the prosecution, the evidence at Petitioner's trial fully supported the trial judge's conclusion that Petitioner's capital offense was "especially heinous, atrocious, or cruel compared to other capital offenses." The state appellate court's rejection on the merits of Petitioner's challenge to the trial judge's finding that Petitioner's capital offense was heinous, atrocious, or cruel was neither contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's trial. Paragraphs 203-05 in Petitioner's federal habeas corpus petition do not warrant federal habeas relief.
The fact that Petitioner was eighteen years of age on the date of his capital offense is not subject to rational dispute. The state trial court instructed the jury at the punishment phase of trial that it could consider Petitioner's age as a mitigating factor to be weighed against the aggravating factors identified by the prosecution.
In his fourth claim in his brief on direct appeal, citing only to § 13A-5-51 of the Alabama Code, Petitioner argued the trial court failed to give Petitioner's age sufficient consideration as a mitigating factor and erroneously found the aggravating circumstances substantially outweighed the mitigating circumstances.
Petitioner urged a slightly more elaborate version of the same claim as his eleventh ground for relief in his Rule 32 petition.
A plurality of the Supreme Court held in Lockett v. Ohio, 438 U.S. 586, 604 (1978), that the Eighth and Fourteenth Amendments require that a capital sentencer ordinarily not be precluded from considering as a mitigating factor any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence of less than death. In Eddings v. Oklahoma, 455 U.S. 104, 114-16 (1982), the Supreme Court applied its holding in Lockett to conclude that a sentencer may not refuse to consider, as a matter of law, any relevant mitigating evidence, including the defendant's youth at the time of the offense and the defendant's "violent background."
The Alabama capital sentencing statute identifies the age of a defendant as a statutory mitigating factor. Ala. Code § 13A-5-51(7). Contrary to the Petitioner's arguments in his Rule 32 petition, the state trial judge did instruct the jury on age as a mitigating factor and did not "refuse" or "fail" to consider Petitioner's youth as a mitigating circumstance in his sentencing decision. Rather, as the Alabama Court of Criminal Appeals correctly noted in its opinion affirming Petitioner's conviction and sentence on direct appeal, it is clear the trial court considered Petitioner's age as a mitigating circumstance but determined, in light of Petitioner's background and the aggravating circumstances in Petitioner's capital offense, that Petitioner's youth did not carry much weight as a mitigating factor and did not mandate the imposition of a life sentence.
The trial judge's Sentencing Order was the antithesis of a "refusal" or "failure" to consider the Petitioner's age as a mitigating circumstance. In his Sentencing Order, the trial judge took great pains to explain why, in view of the Petitioner's background (as set forth in Petitioner's pre-sentence report) and the context of Petitioner's capital offense, the Petitioner's youth did not carry much weight as a mitigating circumstance. The trial judge's Sentencing Order may have used in-artful language (i.e., "age is not a real factor"). The Alabama Court of Criminal Appeals' opinion affirming Petitioner's sentence may have been equally ambiguous (i.e., "the trial court considered age as a mitigating factor and, in its discretion, properly found it was not a mitigating factor"). The word choices in the Sentencing Order and appellate opinion do not alter the fact the state trial court expressly considered Petitioner's youth as a mitigating factor but determined (in light of the evidence presented at trial and the information about Petitioner's background contained in Petitioner's pre-sentence report) that Petitioner's youth at the time of his capital offense did not justify a life sentence. Upon de novo review, the trial judge's Sentencing Order was wholly consistent with the Supreme Court's holdings in Lockett and Eddings.
Petitioner's argument that the state trial court failed to instruct the jury that it could consider Petitioner's age as a mitigating factor is factually inaccurate, conclusively refuted by the record, and potentially a violation of Rule 11(b)(3), Fed.R.Civ.P. The Alabama appellate court's rejection on the merits during Petitioner's direct appeal of Petitioner's complaint about the state trial court's alleged failure or refusal to consider Petitioner's age as a mitigating circumstance was neither contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial and direct appeal proceedings. Paragraphs 206-07 of Petitioner's federal habeas corpus petition do not warrant federal habeas corpus relief.
On December 12, 1996, Petitioner filed a post-trial motion seeking to prohibit the imposition of a sentence of death in which he argued that the sentencing jury's recommendation was not binding on the trial court and Alabama's capital sentencing scheme, which permitted a trial court to override a jury's recommendation, violated equal protection principles.
In In re Kemmler, 136 U.S. 436, 446-49 (1890), the United States Supreme Court denied federal habeas corpus relief and upheld electrocution as a method of execution in an Eighth Amendment challenge to the State of New York's adoption of electrocution as a means of executing an inmate convicted of murder in the first degree. In 2015, the United States Supreme Court upheld, against an Eighth Amendment challenge, the exact same three-drug lethal injection execution protocol authorized under current Alabama law. See Glossip v. Gross, 135 S.Ct. 2726, 2737-38 (2015) (holding a condemned prisoner challenging a lethal injection protocol must establish that "the State's lethal injection protocol creates a demonstrated risk of severe pain [and] must show that the risk is substantial when compared to the known and available alternatives" (quoting Baze v. Rees, 553 U.S. 35, 61 (2008).
Petitioner identifies no Supreme Court opinion striking down as a violation of the Eighth Amendment's prohibition against cruel or unusual punishments any of the methods of execution currently authorized by Alabama law. This court's independent research has identified no such legal authority. Petitioner has alleged no specific facts showing that either any method of execution currently authorized by Alabama law creates a demonstrated risk of severe pain or the risk is substantial when compared to the known and available alternatives. Allegations in a federal habeas corpus petition must be factual and specific, not conclusory. Harris v. Commn'r, Ala. Dep't of Corr., 874 F.3d 682, 691 (11th Cir. 2017), cert. denied, 2018 WL 1509511 (May 29, 2018); Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1061 (11th Cir. 2011), cert. denied, 565 U.S. 1120 (2012).
The Alabama appellate court's rejection on the merits during Petitioner's direct appeal of Petitioner's Eighth Amendment challenge to the State of Alabama's method of execution was neither contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial and direct appeal proceedings. Paragraph 208 of Petitioner's federal habeas corpus petition does not warrant habeas corpus relief.
Petitioner's post-trial motion seeking to prohibit the imposition of a sentence of death attacked the judicial override aspect of Alabama's capital sentencing scheme as a violation of Equal Protection principles.
In his tenth claim for relief in his Rule 32 petition, Petitioner argued his conviction and death sentence were the products of racial bias because his two co-defendants were white and were offered deals by the state to testify against Petitioner, while Petitioner was never asked if he possessed information regarding the guilt of his co-defendants.
A defendant who alleges an equal protection violation has the burden of proving the existence of purposeful discrimination and that the purposeful discrimination had a discriminatory effect on him. McCleskey v. Kemp, 481 U.S. 279, 292 (1987). Thus, to prevail under the Equal Protection Clause, a criminal defendant must prove that the decision-makers in his case acted with discriminatory purpose. Id.
"To demonstrate an equal protection claim, a prisoner must demonstrate that he is similarly situated to other prisoners who received more favorable treatment and the state engaged in invidious discrimination against him based on race, religion, national origin, or some other constitutionally protected basis." Sweet v. Sec'y, Dep't of Corr., 467 F.3d 1311, 1318-19 (11th Cir. 2006), cert. denied, 550 U.S. 922 (2007). Like Sweet, Petitioner's equal protection claim fails because he has not shown that he was treated differently from other, similarly situated prisoners.
The Alabama appellate court's rejection on the merits during Petitioner's direct appeal of Petitioner's conclusory Equal Protection challenge to the State of Alabama's capital sentencing scheme was neither contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial and direct appeal proceedings. Upon independent, de novo, review there is no arguable merit to the conclusory equal protection claim contained in Petitioner's tenth claim in his Rule 32 petition. Paragraphs 209-10 of Petitioner's federal habeas corpus petition are without arguable legal or factual support, do not warrant federal habeas corpus relief, and potentially violate Rule 11(b)(1), (b)(2), & (b)(3), Fed.R.Civ.P.
In his sixth ground for relief on direct appeal, Petitioner argued his indictment was "fatally defective" because it was duplicitous, multiplicitous, and allowed the State to present different theories of capital murder when there was actually only one theory to sustain a capital murder verdict, in violation of the Double Jeopardy principles announced by the Supreme Court in United States v. Dixon, 509 U.S. 699 (1993), and Blockburger v. United States, 284 U.S. 299 (1932).
The Double Jeopardy Clause of the Fifth Amendment states that no person shall be "subject to the same offense to be twice put in jeopardy of life or limb"; it protects against successive prosecutions for the same offense after acquittal or conviction and against multiple criminal punishments for the same offense. See Bravo-Fernandez v. United States, 137 S.Ct. 352, 357-58, 363 (2016) (the Double Jeopardy Clause does not bar retrial after a jury returned irreconcilably inconsistent verdicts of conviction and acquittal and the convictions were later vacated for legal error unrelated to the inconsistency); Monge v. California, 524 U.S. 721, 727-28, 734 (1998) (the Double Jeopardy Clause does not preclude retrial on a prior conviction allegation in a noncapital sentencing context); Hudson v. United States, 522 U.S. 93, 99 (1997) (the Double Jeopardy Clause protects against multiple criminal punishments for the same offense); Schiro v. Farley, 510 U.S. 222, 229 (1994) (the Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense). The Clause guarantees that the State shall not be permitted to make repeated attempts to convict the accused, thereby subjecting him to the embarrassment, expense, and ordeal of multiple trials and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. Blueford v. Arkansas, 566 U.S. 599, 605 (2012); Schiro v. Farley, 510 U. S. at 229-30. Where, however, there is no threat of either multiple punishment or successive prosecutions, the Double Jeopardy Clause is not offended. Schiro v. Farley, 510 U. S. at 230; United States v. Wilson, 420 U.S. 332, 344 (1975).
The short answers to Petitioner's Double Jeopardy argument are (1) Petitioner was subjected to neither multiple nor successive prosecutions for the same offense, i.e., Petitioner was tried only once for the capital murder of Julie Rhodes, and (2) there was only one criminal punishment imposed upon him, i.e., despite the wording of the Petitioner's Sentencing Order there is no allegation before this court that the State of Alabama plans to execute Petitioner more than once.
In the course of Petitioner's direct appeal, both Petitioner and the Alabama Court of Criminal Appeals focused their respective arguments and analyses on the issue of whether Petitioner's indictment, trial, and convictions under multiple factual theories of capital murder violated the rule announced by the Supreme Court in Blockburger v. United States. The problem with Petitioner's Blockburger argument, and the Alabama Court of Criminal Appeals' Blockburger analysis, is that the Supreme Court's holding in Blockburger has no application to the facts of Petitioner's capital murder trial. See Illinois v. Vitale, 447 U.S. 410, 416 (1980) (holding the Blockburger standard is used to determine whether two offenses are the same for purposes of barring successive prosecutions). Petitioner was not subjected to either successive trials or cumulative punishments.
In Blockburger, the Supreme Court addressed whether the constitutional rights of a criminal defendant charged with five counts of selling morphine hydrochloride (and convicted on three of those counts) were violated when he received consecutive sentences of up to five years imprisonment and separate fines of two thousand dollars on each count for which he was convicted. Blockburger argued that he had made two of the sales for which he was convicted to the same person and, therefore, they should be considered a single offense under the applicable federal statute and two of the counts identified an identical sale. The Supreme Court held the two sales to the same purchaser were distinct sales made at different times and the federal statute penalized any sale made in the absence of the requirements set forth in that statute. See Blockburger v. United States, 284 U. S. at 301-02 ("Each of several successive sales constitutes a distinct offense, however closely they may follow each other."). As to Blockburger's complaint that two of the counts of the indictment against him alleged multiple crimes arising from the same sale of narcotics, the Supreme Court noted the applicable federal statute separately penalized both selling any forbidden drug except in or from the original stamped package and selling any of the forbidden drugs not in pursuance of a written order of the person to whom the drug is sold. Id., 284 U. S. at 303-04. The Supreme Court held (1) the applicable rule for determining whether the same act or transaction constitutes a violation of two distinct statutory provisions is whether each provision requires proof of a fact which the other does not, (2) the two statutory prohibitions each required proof of a different element, (3) applying the relevant test, both sections of the statute were violated by the same sale, and (4) two separate offenses were committed. Id., 284 U. S. at 304. Blockburger made multiple sales of illicit narcotics, some to the same purchaser. In contrast, the offense of murder with which the Petitioner was charged is not capable of repetition; nor did Petitioner's criminal conduct result in multiple deaths.
Petitioner's capital offense involved a single murder victim and, necessarily, constituted a single criminal offense.
Nothing in the Double Jeopardy Clause or any other provision in the Constitution prevented or prohibited the State of Alabama from charging Petitioner with multiple theories underlying a single offense of capital murder. Where two sstatutory sections operate independently of one another, as is the case with the Alabama capital murder statute's list of those criminal acts which elevate an ordinary murder to the level of capital murder, there is no bar to the Government's proceeding with prosecution simultaneously under the two statutes. Ball v. United States, 470 U.S. 856, 860 (1985). In such circumstances, the Double Jeopardy Clause imposes no prohibition to simultaneous prosecutions. Id., 470 U. S. at 860 n.7. Even where the Double Jeopardy Clause bars cumulative punishment for a group of offenses, it does not prohibit the State from prosecuting the defendant for such multiple offenses in a single prosecution. Ohio v. Johnson, 467 U.S. 493, 500 (1984).
The Supreme Court discussed the application of this rule in the context of capital murder prosecutions in Schad v. Arizona, 501 U.S. 624, 631 (1991): "Our cases reflect a long-established rule of the criminal law that an indictment need not specify which overt act, among several named, was the means by which a crime was committed." The four-Justice plurality in Schad cited several of that court's prior opinions, as well as Rule 7(c)(1) of the Federal Rules of Criminal Procedure, for the rule that, in cases of murder, it is "immaterial whether death was caused by one means or the other." Id.
That the Alabama Court of Criminal Appeals applied the Blockburger standard to analyze the multiple theories underlying the capital murder charge against Petitioner and reject Petitioner's Double Jeopardy claim on the merits does not mandate relief under the AEDPA. On the contrary, under the AEDPA, federal habeas corpus review of the state appellate court's decision rejecting Petitioner's Double Jeopardy claim on the merits must focus on the state appellate court's ultimate decision or ultimate conclusion and not the rationale for that decision set forth in the state appellate court's opinion. See Harrington v. Richter, 562 U.S. 86, 98-99 (2011) (holding § 2254(d) bars re-litigation of any claim adjudicated on the merits in state court subject only to statutory exceptions, the statute refers only to a "decision" which resulted in an "adjudication," and there is no requirement that a state court issue an opinion explaining its reasoning); Gill v. Mecusker, 633 F.3d 1272, 1291 (11th Cir.) (the precise question that must be answered under the AEDPA standard must focus on the state court's ultimate conclusion, not the reasoning set forth in the state court's opinion), cert. denied, 565 U.S. 1084 (2011). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U. S. at 101.
The state appellate court's rejection on the merits of Petitioner's Double Jeopardy claim was wholly consistent with the Supreme Court's holding in Schad v. Arizona, recognizing that when multiple methods of committing a single capital murder are available under applicable state law and supported by the evidence, the State is free to charge multiple theories underlying that criminal offense and the jury is not required to unanimously agree on which of the theories it believes support a finding of guilt beyond a reasonable doubt. See Sims v. Singletary, 155 F.3d 1297, 1313 (11th Cir. 1998) (holding that a Florida jury did not need to agree on the precise theory of first degree murder; that a general verdict was permissible (citing Schad v. Arizona, 501 U. S. at 644-45)), cert. denied sub nom. Sims v. Moore, 527 U.S. 1025 (1999). Petitioner has identified no Supreme Court authority holding that, where there is but a single victim, separate theories of capital murder authorized under state statute must satisfy the Blockburger standard. See Coe v. Bell, 161 F.3d 320, 348 (6th Cir. 1998) ("Admittedly, it is acceptable for a first-degree murder conviction to be based on two alternative theories even if there is no basis to conclude which one (if only one) the jury used." (citing Schad v. Arizona, 501 U. S. at 636-37), cert. denied, 528 U.S. 842 (1999). This court's independent research has identified no such Supreme Court authority. Indeed, the Supreme Court's holding in Schad precludes such a rule. Nothing in clearly established Supreme Court precedent mandates the reversal of Petitioner's capital conviction or sentence based upon Double Jeopardy principles.
The Alabama appellate court's rejection on the merits during Petitioner's direct appeal of Petitioner's Double Jeopardy claim was neither contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial and direct appeal proceedings. Paragraphs 211-12 of Petitioner's federal habeas corpus petition do not warrant habeas corpus relief.
In his seventh ground for relief on direct appeal, Petitioner argued that the prosecutor's closing guilt-innocence phase jury argument improperly equated Petitioner with the Nazis and Hitler.
Barksdale v. State, 788 So. 2d at 911. The state appellate court concluded the comment was not improper in the context of the entire argument. Id., 788 So. 2d at 912-13.
Petitioner's trial counsel argued the testimony showing there was pleasant conversation about music inside Julie's car prior to the shooting belied the prosecution's contention that Petitioner planned to rob Julie.
In reviewing the propriety of prosecutorial closing argument, the relevant question is whether the prosecutor's comments "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)).
To find prosecutorial misconduct warranting a new trial, the Eleventh Circuit applies a two-pronged test: the remarks must be improper and the remarks must prejudicially affect the substantial rights of the defendant. Conner v. GDCP Warden, 784 F.3d 752, 769 (11th Cir. 2015), cert. denied, 136 S.Ct. 1246 (2017). To satisfy the second prong, the prosecutor's improper comments must have "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Id. (quoting Darden v. Wainwright, 477 U. S. at 181). In determining whether prosecutorial arguments are sufficiently egregious to result in the denial of due process, the Eleventh Circuit considers the statements in the context of the entire proceeding, including factors such as (1) whether the remarks were isolated, ambiguous, or unintentional; (2) whether there was a contemporaneous objection by defense counsel; (3) the trial court's instructions; and (4) the weight of aggravating and mitigating factors. Conner v. GDCP Warden, 784 F.3d at 769 (quoting Land v. Allen, 573 F.3d 1211, 1219-20 (11th Cir. 2009), cert. denied, 559 U.S. 1072 (2010)).
Federal courts recognize as proper four areas for prosecutorial jury argument: (1) summation of the evidence; (2) reasonable inferences drawn from the evidence; (3) replies or answers to opposing counsel's argument; and (4) pleas for law enforcement and justice.
Alabama law likewise recognizes as appropriate these same four areas of prosecutorial jury argument.
Contrary to Petitioner's assertion, nothing in the prosecutor's comment about the Nazis having an orchestra playing at their concentration camps amounted to a direct comparison of Petitioner with Hitler. In fact, the prosecutor never mentioned or alluded to Hitler by name or otherwise. Petitioner's own trial counsel urged the jury to consider the testimony showing Petitioner and Julie engaged in "pleasant conversation" prior to the fatal shooting and suggested this evidence negated the prosecution's theory that Petitioner was then planning to rob Julie. The thrust of the prosecutor's argument in rebuttal, i.e., the prosecutor's suggestion that Petitioner engaged in pleasant conversation with Julie for the purpose of keeping Julie calm until Petitioner was ready to rob her, was an eminently reasonable and permissible inference drawn from the evidence then before the jury. The jury could reasonably have inferred from the testimony before it that Petitioner chose not to rob Julie near the shopping center where she picked up Petitioner, Garrison, and Hilburn (where many people were watching the Christmas parade) and Petitioner chose instead to wait until they were in a far more remote location to rob her. Thus, the gist of the prosecutor's argument was a proper rebuttal to the guilt-innocence phase jury argument first made by Petitioner's trial counsel and based upon reasonable inferences drawn from the evidence.
The prosecutor's allusion or "historical analogy" to the prisoner orchestras which played at Nazi concentration camps was hyperbolic and arguably improper. Nonetheless, in the context of the Petitioner's trial, the prosecutor's comment did not render the guilt-innocence phase of Petitioner's capital murder trial fundamentally unfair. The prosecutor's comment about the Nazis was isolated and drew a swift objection from Petitioner's trial counsel. The trial judge just as swiftly rebuked the prosecutor and instructed the prosecutor on the record not to complete the analogy the prosecutor was attempting to draw. The prosecutor abided by the trial judge's instructions and made no further reference to the Nazis.
Viewed in the light most favorable to the jury's verdict, the evidence of Petitioner's guilt was overwhelming. Petitioner admitted he was inside Julie Rhodes's vehicle when two shots from his gun struck her. Garrison and another witness each testified that, earlier that same day, the Petitioner expressed a desire to "jack" someone and a preference for robbing one person, rather than a couple of people. Garrison testified without rebuttal that Julie begged Petitioner not to shoot her but Petitioner did — twice. The uncontroverted testimony of the medical examiner established Julie was shot once in the face and once in the back. The jury could reasonably have believed Garrison's testimony that, after shooting Julie, Petitioner exited the vehicle, pushed Julie away from the vehicle, and got behind the steering wheel. It was undisputed that, immediately after the shooting, Petitioner, Garrison, and Hilburn drove away from the scene of the shooting without making any effort to obtain or render assistance to Julie or to alert anyone else who might have been able to do so. Petitioner told one acquaintance that he had shot a girl but did not know if he had killed her. When Petitioner, Garrison, and Hilburn returned to the Guntersville area, Petitioner told numerous people that he had purchased Julie's vehicle and, for the first time, asserted his fatal shooting of Julie had been accidental.
Considering all the circumstances, the prosecutor's isolated remark about the Nazis did not prejudicially affect the substantial rights of the defendant. There is simply no reasonable probability that the prosecutor's reference to the Nazis playing music changed the outcome of the guilt-innocence phase of Petitioner's capital murder trial. The Alabama Court of Criminal Appeals could have reasonably concluded the prosecutor's isolated remark did not rise above the level of harmless error.
The Alabama appellate court's rejection on the merits during Petitioner's direct appeal of Petitioner's claim based upon the prosecution's alleged improper guilt-innocence phase jury argument was neither contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial and direct appeal proceedings. Paragraphs 213-15 of Petitioner's federal habeas corpus petition do not warrant habeas corpus relief.
At the punishment phase of Petitioner's capital murder trial, the trial judge instructed the jury that if it were convinced beyond a reasonable doubt of the existence of any of three, specific aggravating circumstances, the jury could consider and weigh those factors when making its sentencing recommendation; those factors were (1) the Petitioner was previously convicted of a felony involving the use or threat or violence to a person, (2) Petitioner committed this capital offense while he was engaged in or was an accomplice in the commission of or attempt to commit the crime of robbery, and (3) the offense was especially heinous, atrocious, or cruel compared to other capital offenses.
In his eighth ground for relief on direct appeal, Petitioner argued the sentencing court erred in considering as aggravating circumstances the facts, which the jury concluded at the guilt-innocence phase of trial had been established beyond a reasonable doubt, that the Petitioner intentionally shot Julie Rhodes both while he was engaged in the robbery or attempted robbery of Julie Rhodes and while she was inside a vehicle.
Barksdale v. State, 788 So. 2d at 913 (quoting Coral v. State, 628 So.2d 954, 965-66 (Ala. Crim. App. 1992), aff'd, 628 So.2d 1004 (Ala. 1993), cert. denied, 511 U.S. 1012 (1994)).
Id., at 913-14 (quoting Burton v. State, 651 So.2d 641, 657-58 (Ala. Crim. App. 1993), aff'd, 651 So.2d 659 (Ala. 1994), cert. denied, 514 U.S. 1115 (1995)).
Petitioner presented a somewhat similar argument as his thirteenth claim for relief in his Rule 32 petition.
In Jones v. United States, 527 U.S. 373, 398 (1999), the Supreme Court declined to adopt the rule underlying Petitioner's eighth claim before the Alabama Court of Criminal Appeals: "We have never before held that aggravating factors could be duplicative so as to render them constitutionally invalid, nor have we passed on the `double counting' theory. . . . What we have said is that the weighing process may be impermissibly skewed if the sentencing jury considers an invalid factor." Jones, 527 U. S. at 398 (citation omitted).
In their opinion dissenting from the denial of certiorari in Wiley v. Mississippi, 479 U.S. 906 (1986), Justices Marshall and Brennan argued, as had a dissenting Justice in the Mississippi Supreme Court, that a "single legally indivisible act of the defendant may rationally aggravate a murder but once." Wiley v. Mississippi, 479 U. S. at 305-06 (Marshall and Brennan dissenting).
At no point in the trial court's punishment phase jury instructions did the trial judge instruct the jury to consider as an aggravating circumstance the fact the Petitioner fatally shot Julie Rhodes while she was inside a vehicle. Nor did the trial court's Sentencing Order mention the evidence establishing this undisputed fact as supporting an independent aggravating circumstance. Thus, insofar as Petitioner argued before the Alabama Court of Criminal Appeals that the sentencing jury and sentencing court improperly considered as an aggravating circumstance the evidence showing the Petitioner fatally shot Julie Rhodes while she was inside a vehicle, Petitioner's argument was premised upon a factually inaccurate assertion. There is nothing in the record currently before this court even remotely suggesting, much less establishing, that either the Petitioner's sentencing jury or sentencing court actually considered the fact Petitioner shot Julie Rhodes while she was inside a vehicle as an aggravating circumstance when weighing the aggravating and mitigating circumstances at the punishment phase of trial.
Insofar as Petitioner argues his sentencing jury and the sentencing court were constitutionally precluded from considering the evidence showing Petitioner fatally shot Julie Rhodes while in the course of robbing her, Petitioner argues for the adoption of a new rule of constitutional criminal procedure, a rule the Supreme Court has not yet adopted. The new rule advocated by Petitioner falls within neither of the two narrow categories of cases recognized by the Supreme Court in Teague v. Lane as exceptions to the general rule against applying new rules of criminal procedure within the context of a federal habeas corpus proceeding. Petitioner's proposed rule neither places certain kinds of primary, private individual conduct beyond the power of criminal law-making authority to proscribe nor requires the observance of those procedures that are implicit in the concept of ordered liberty. Teague v. Lane, 489 U. S. at 307. Therefore, this court is precluded from adopting this new rule in the context of this federal habeas corpus proceeding.
Moreover, the new rule advocated by Petitioner would warp the capital sentencing weighing process in jurisdictions such as Alabama by preventing the sentencing jury and sentencing judge from considering and giving weight to the very evidence which justified holding a capital sentencing proceeding in the first place.
In Lowenfield v. Phelps, 484 U.S. 231 (1988), the Supreme Court confronted a Louisiana capital murder conviction premised upon the jury's conclusion at the guilt-innocence phase of trial that the defendant knowingly created a risk of death or great bodily harm to more than one person. Lowenfield complained that the sole aggravating circumstance found by the jury at the sentencing phase of his trial and upheld by the Supreme Court of Louisiana merely duplicated this same element of his capital murder charge and, thereby, violated the Eighth Amendment. The Supreme Court rejected this argument, explaining what it perceived to be the proper role of "aggravating circumstances":
Lowenfield v. Phelps, 484 U. S. at 244-25. After discussing its precedents addressing the nature of the constitutionally mandated narrowing function implicit in capital sentencing, the Supreme Court declared as follows:
Id., 484 U. S. at 246.
Unlike the Texas and Louisiana capital sentencing schemes the Supreme Court discussed in Lowenfield, the Alabama capital sentencing scheme performs the constitutionally mandated narrowing function at the punishment phase of trial by requiring a weighing of aggravating and mitigating factors. Petitioner's proposed new rule would distort the constitutionally mandated narrowing function by prohibiting both the judge and jury from considering (as part of the weighing process) the very evidence the jury unanimously concluded supported a finding that a capital murder, as defined by Alabama statute, had been established beyond a reasonable doubt. To adopt the new rule advocated by Petitioner, i.e., to prohibit the sentencing jury and sentencing court from considering and weighing as an aggravating factor the evidence concerning the nature of the offense which the jury unanimously concluded at the guilt-innocence phase of trial had been established beyond a reasonable doubt, would skew the capital sentencing weighing process in a manner that is neither logical nor constitutionally mandated. The Supreme Court held in Lowenfield that such a rule was not required by the Eighth Amendment's prohibition against cruel and unusual punishment. Petitioner has cited no Supreme Court opinion holding such a rule is mandated by either the Due Process or Double Jeopardy Clauses of the Fifth Amendment or the Due Process or Equal Protection Clauses of the Fourteenth Amendment.
In the absence of any clearly established Supreme Court authority prohibiting the "double counting" about which Petitioner complains, the state appellate court's rejection on the merits of this claim during the course of Petitioner's direct appeal was neither contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial and direct appeal proceedings. Paragraphs 216-17 of Petitioner's federal habeas corpus petition do not warrant habeas corpus relief.
In paragraphs 9 through 101 of his federal habeas corpus petition,
Petitioner presented highly conclusory versions of these same ineffective assistance claims, bereft of any fact-specific support, in his Rule 32 proceeding.
The Sixth Amendment entitles criminal defendants to "the effective assistance of counsel," i.e., legal representation that does not (1) fall below an objective standard of reasonableness in light of prevailing professional norms and the circumstances of the defendant's case (Wong v. Belmontes, 558 U.S. 15, 16-17 (2009); Bobby v. Van Hook, 558 U.S. 4, 7 (2009)); and (2) give rise to a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different (Porter v. McCollum, 558 U.S. 30, 38-40 (2009); Wong v. Belmontes, 558 U. S. at 19-20).
The constitutional standard for determining whether a criminal defendant has been denied the effective assistance of trial counsel, as guaranteed by the Sixth Amendment, was announced by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984):
To satisfy the first prong of Strickland, i.e., establish that his counsel's performance was constitutionally deficient, a convicted defendant must show that counsel's representation "fell below an objective standard of reasonableness." Wiggins v. Smith, 539 U.S. 510, 521 (2003); Williams v. Taylor, 529 U.S. 362, 390-91 (2000). In so doing, a convicted defendant must carry the burden of proof and overcome a strong presumption that the conduct of his trial counsel falls within a wide range of reasonable professional assistance. Strickland v. Washington, 466 U. S. at 687-91. Courts are extremely deferential in scrutinizing the performance of counsel and make every effort to eliminate the distorting effects of hindsight. See Wiggins v. Smith, 539 U. S. at 523 (holding the proper analysis under the first prong of Strickland is an objective review of the reasonableness of counsel's performance under prevailing professional norms, which includes a context-dependent consideration of the challenged conduct as seen from the perspective of said counsel at the time). "No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Bobby v. Van Hook, 558 U. S. at 7; Strickland v. Washington, 466 U. S. at 688-89. It is strongly presumed that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland v. Washington, 466 U. S. at 690.
To satisfy the "prejudice" prong, a convicted defendant must establish a reasonable probability that, but for the objectively unreasonable misconduct of his counsel, the result of the proceeding would have been different. Wiggins v. Smith, 539 U. S. at 534; Strickland v. Washington, 466 U. S. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Strickland v. Washington, 466 U. S. at 694.
In those instances in which the state courts failed to adjudicate either prong of the Strickland test (such as those complaints the state courts summarily dismissed under the Texas writ-abuse statute or which petitioner failed to fairly present to the state courts), this court's review of the un-adjudicated prong is de novo. See Porter v. McCollum, 558 U. S. at 39 (holding de novo review of the allegedly deficient performance of petitioner's trial counsel was necessary because the state courts had failed to address this prong of Strickland analysis); Rompilla v. Beard, 545 U.S. 374, 390 (2005) (holding de novo review of the prejudice prong of Strickland required where the state courts rested their rejection of an ineffective assistance claim on the deficient performance prong and never addressed the issue of prejudice); Wiggins v. Smith, 539 U. S. at 534 (holding the same).
A habeas petitioner has the burden to prove both prongs of the Strickland ineffective assistance standard by a preponderance of the evidence. Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir.), cert. denied, 562 U.S. 1082 (2010); Mills v. Singletary, 63 F.3d 999, 1020 (11th Cir. 1995), cert. denied, 517 U.S. 1214 (1996); Wiley v. Wainwright, 709 F.2d 1412, 1413 (11th Cir. 1983). See also Chandler v. United States, 218 F.3d 1305, 1314 n.15 (11th Cir. 2000) ("Petitioner continually bears the burden of persuasion on the constitutional issue of competence and further, (adding the prejudice element) on the issue of ineffective assistance of counsel."), cert. denied, 531 U.S. 1204 (2001). Under the well-settled Strickland standard, the Supreme Court recognizes a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Bell v. Cone, 535 U.S. 685, 698 (2002); Strickland v. Washington, 466 U. S. at 690.
Under the AEDPA's deferential standard of review, claims of ineffective assistance adjudicated on the merits by a state court are entitled to a doubly deferential form of federal habeas review. The AEDPA, by setting forth necessary predicates before state-court judgments may be set aside, "erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." Burt v. Titlow, 134 S.Ct. 10, 16 (2013). Under § 2254(d)(1), "`a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" White v. Wheeler, 136 S.Ct. 456, 460 (2015) (quoting White v. Woodall, 134 S.Ct. 1697, 1702 (2014)); Harrington v. Richter, 562 U.S. 86, 103 (2011).
Harrington v. Richter, 562 U. S. at 101 (citations omitted).
The state trial court's summary rejection of most of Petitioner's ineffective assistance claims in the course of Petitioner's Rule 32 proceeding constituted a ruling on the merits of those claims by the state court. Dismissal of a claim for failure to satisfy Alabama Rule of Criminal Procedure 32.6(b) constitutes a ruling on the merits, which does not give rise to a procedural default or foreclose federal habeas review of a federal constitutional claim. See Frazier v. Bouchard, 661 F.3d 519, 524-26 (11th Cir. 2011) (holding dismissal of ineffective assistance claim for failure to allege sufficient facts was a ruling on the merits of the Strickland claim and did not constitute a procedural default or otherwise bar federal habeas review of the claim), cert. denied, 568 U.S. 833 (2012); Borden v. Allen, 646 F.3d 785, 815-16 (11th Cir. 2011) ("an Alabama court's consideration of the sufficiency of the pleadings concerning a federal constitutional claim contained in a Rule 32 petition necessarily entails a determination on the merits of the underlying claim; we cannot construe such a rule to be a state procedural bar that would preclude our review"), cert. denied, 566 U.S. 941 (2012); Powell v. Allen, 602 F.3d 1263, 1272-73 (11th Cir. 2010) (Alabama court's summary dismissal of federal constitutional claims under Rule 32.6(b) should be reviewed as a holding on the merits), cert. denied, 562 U.S. 1183 (2011). Thus, in evaluating Petitioner's complaints about the performance of his trial counsel which the state courts rejected on the merits in the course of Petitioner's Rule 32 proceeding, the issue before this court is whether the Alabama Court of Criminal Appeals could reasonably have concluded Petitioner's complaints about his trial counsel's performance failed to satisfy either prong of the Strickland analysis. In making this determination, this court must consider the underlying Strickland standard.
In paragraphs 3 and 10 through 21 of his federal habeas corpus petition, Petition argues his trial counsel rendered ineffective assistance by failing to present evidence showing that his fatal shooting of Julie Rhodes was the product of a pair of accidental shootings, i.e., that the murder weapon jammed while he was trying to unload it, the gun fired while he was trying to unjam it, and the second shot was a "knee-jerk reaction to the first [shot]."
In paragraphs 27-29 of his Rule 32 petition, Petitioner argued in a conclusory manner that his trial counsel failed to adequately present a defense at the guilt innocence phase of trial showing the fatal shooting of Julie Rhodes was an accident.
The state trial court summarily rejected these ineffective assistance complaints, concluding Petitioner failed to "plead any facts which would establish prejudice."
Federal habeas corpus petitioners asserting claims of ineffective assistance based on counsel's failure to call a witness (either a lay witness or an expert witness) satisfy the prejudice prong of Strickland only by naming the witness, demonstrating the witness was available to testify and would have done so, setting out the content of the witness's proposed testimony, and showing the testimony would have been favorable to a particular defense. Woodfox v. Cain, 609 F.3d 774, 808 (5th Cir. 2010); Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009). See also Reed v. Sec'y, Fla. Dep't of Corr., 767 F.3d 1252, 1262 (11th Cir. 2014) (federal habeas petitioner who failed to show an uncalled witness was available to testify at the time of trial failed to satisfy prejudice prong of Strickland), cert. denied, 135 S.Ct. 1563 (2015). Petitioner has neither identified, nor furnished an affidavit from, a firearms expert or any person possessing personal knowledge of the murder weapon who was available to testify at the time of Petitioner's capital murder trial, was willing and able to do so, and could have furnished any testimony that would have established it was possible the murder weapon accidentally discharged while Petitioner attempted to unload it by pulling the slide in the manner suggested by Petitioner.
All three witnesses who actually did testify at Petitioner's trial with regard to the murder weapon's operation, i.e., prosecution witnesses Edward Peterman and Joe Saloom, along with defense witness Joe W. Shirey, agreed the weapon jammed easily. None of them testified it was possible for the gun to discharge accidentally when being unloaded by pushing the slide. Petitioner alleged no facts before the state trial court in his Rule 32 proceeding identifying any person who was available at the time of Petitioner's capital murder trial and could have offered testimony, lay or expert, supporting Petitioner's theory that his gun accidentally discharged twice (striking Julie Rhodes in two entirely different parts of her body from two entirely different angles) while Petitioner sat in the back seat of her vehicle and attempted to unload the weapon by manipulating the slide.
It was objectively reasonable for the state trial court to conclude in the course of Petitioner's Rule 32 proceeding that Petitioner's conclusory complaints about the failure of his trial counsel to present unidentified evidence supporting Petitioner's accidental discharge theory failed to satisfy the prejudice prong of the Strickland analysis. It was also objectively reasonable for the state trial court to conclude there was nothing deficient in the performance of Petitioner's trial counsel with regard to cross-examination of prosecution witnesses Peterman and Saloom, the decision to present Joe Shirey as an expert witness to establish the poor quality and erratic operation of the murder weapon, or the argument to the jury that the murder weapon was such a poorly constructed and maintained weapon that an accidental discharge was not unthinkable.
Furthermore, insofar as Petitioner argued that his trial counsel wholly failed to present an accidental discharge defense, Petitioner's ineffective assistance complaints in his Rule 32 proceeding were factually inaccurate. Petitioner's accidental discharge defense was presented to the jury at the guilt-innocence phase of trial when the prosecution presented and the trial court admitted into evidence the audiotaped recording of Petitioner's December 4, 1995 interview, in which Petitioner plainly asserted that his gun went off twice as he was trying to unload it.
In light of the evidence presented at Petitioner's trial and the conclusory assertions contained in Petitioner's Rule 32 petition, the state court's denial on the merits of this portion of Petitioner's multifaceted ineffective assistance claim was neither contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's trial and Rule 32 proceeding. Because Petitioner failed to allege any facts showing there was any expert testimony available at the time of his trial to establish the gun misfired twice at the time Petitioner fatally shot Julie Rhodes, this specific complaint of ineffective assistance is without arguable merit, lacks any factual support in the record, and potentially violates Rule 11(b)(1), (b)(2), & (b)(3), Fed.R.Civ.P.
The Supreme Court has emphasized that all judicial review of an attorney's performance under the Strickland standard must be conducted with a high degree of deference:
Harrington v. Richter, 562 U. S. at 105 (citations omitted). The Eleventh Circuit of course applies this legal principle. See Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014) (holding that even under de novo review, the standard for judging counsel's representation is "a most deferential one"), cert. denied, 135 S.Ct. 2126 (2015).
In his federal habeas corpus petition, Petitioner argues that notes written by an unidentified person found in the files of both the District Attorney and Petitioner's trial counsel state "if the first round was an accidental discharge, the second round could have been fired as a knee-jerk reaction to the first discharge."
Having independently reviewed de novo the entire record from Petitioner's trial, none of the foregoing complaints satisfy either prong of the Strickland standard.
Petitioner alleges no specific facts and presents this court with no affidavits or other evidence suggesting that Joe Shirey, Joe Saloom, or any other expert was available at the time of Petitioner's trial who could have testified that it was physically possible for the murder weapon to have misfired twice while being manipulated in the manner asserted by Petitioner, i.e., while he was attempting to unload the weapon manually by pulling the slide. Prosecution witness Edward Peterman, a former owner of the weapon in question, testified during cross-examination by Petitioner's trial counsel that it was necessary to pull the trigger twice to fire the gun twice.
The jury concluded beyond a reasonable doubt that Petitioner intentionally fatally shot Julie Rhodes. The medical examiner's uncontradicted testimony established Julie was shot once in the face and once in the back, from two entirely different angles. There was no evidence presented showing there were any bullet holes in the seat of Julie's vehicle suggesting a gun had been fired or misfired while Petitioner was holding the gun while seated in the right rear passenger seat.
Moreover, the jury was well aware of Petitioner's multiple ex post facto assertions that his gun discharged accidentally. The jury heard Petitioner's audiotaped statement to law enforcement stating that his gun misfired while he was attempting to unload it.
Prosecution witness Jason Scott Mitchell testified on direct examination that Petitioner insisted he was shaking the gun in Julie's face in an effort to scare her into getting out of her vehicle when his gun went off accidentally.
Insofar as Petitioner argues that his trial counsel should have presented additional witnesses who would have repeated Petitioner's self-serving assertions to them that his fatal shooting of Julie Rhodes was accidental, this argument fails to satisfy either prong of the Strickland standard. There is no reasonable probability that cumulative testimony from additional witnesses merely parroting Petitioner's self-serving assertions of an accidental shooting would have altered the outcome of the guilt-innocence phase of Petitioner's capital murder trial. See Morrow v. Warden, 886 F.3d 1138, 1150-51 (11th Cir. 2018) (holding petitioner was not prejudiced within the meaning of Strickland by trial counsel's failure to present weak or cumulative mitigating evidence); Ledford v. Warden, G.D.C.P., 818 F.3d 600, 649 (11th Cir. 2016) (a petitioner cannot satisfy the prejudice prong of the Strickland test with evidence that is merely cumulative of evidence already presented at trial; evidence is cumulative or duplicative when it tells a more detailed version of the same story told at trial or provides more or better examples or amplifies the themes presented to the jury), cert. denied, 137 S.Ct. 1432 (2017). Likewise, there was nothing objectively unreasonable with the decision by Petitioner's trial counsel to rely upon the Petitioner's own audiotape recorded statement and the trial testimony of Harris, Garrison, and Mitchell to support the defense's theory that Petitioner's weapon accidentally discharged while Petitioner was attempting to unload it manually. See Reaves v. Sec'y, Fla. Dep't of Corr., 872 F.3d 1137, 1157 (11th Cir. 2017) ("counsel's failure to present cumulative evidence is not ineffective assistance"), cert. denied, 2018 WL 1718032 (Jun. 25, 2018). Petitioner offers no factual allegations, much less an affidavit, from any of the additional witnesses identified in Petitioner's federal habeas corpus petition showing that any of these witnesses could or would have testified to anything more than having heard more of Petitioner's ex post facto self-serving statements suggesting his fatal shooting of Julie Rhodes was accidental. Therefore, the additional witnesses and letters Petitioner now argues should have been introduced were merely cumulative of the testimony already before the jury at the guilt-innocence phase of Petitioner's capital murder trial. More importantly, Petitioner identifies no uncalled witness who could have testified from personal knowledge that the fatal shooting of Julie Rhodes was accidental.
The state habeas court reasonably concluded Petitioner's complaints in his Rule 32 petition about his trial counsel's allegedly deficient presentation of an accidental shooting defense fail to satisfy either prong of the Strickland standard. After de novo review, Petitioner's new complaints in his federal habeas corpus petition about his trial counsel's performance at the guilt-innocence phase of trial also fail to satisfy either prong of the Strickland standard. Moreover, it is far from clear whether this court can even entertain Petitioner's meritless and conclusory new factual allegations attacking the manner in which his trial counsel presented Petitioner's accidental shooting defense. See Borden v. Allen, 646 F.3d 785, 816-17 (11th Cir. 2011) (suggesting a federal habeas court is precluded from considering additional facts or claims presented for the first time in a federal habeas petition), cert. denied, 566 U.S. 941 (2012). What is clear, however, is that Petitioner's complaints about his trial counsel's presentation of evidence supporting an accidental discharge defense do not satisfy the prejudice prong of the Strickland standard. Paragraphs 3 and 10 through 21 of Petitioner's federal habeas corpus petition do not warrant federal habeas corpus relief and potentially violate Rule 11(b)(1), (b)(2), & (b)(3), Fed.R.Civ.P.
In paragraphs 4 and 22 through 33 of his federal habeas corpus petition, Petitioner argues his trial counsel inadequately cross-examined Petitioner's accomplice, prosecution witness Jonathan David Garrison.
On direct examination, Garrison testified in part that (1) he fled Julie Rhodes' vehicle when he saw Petitioner reach for his gun, (2) he exited the vehicle, slammed the door, and ran behind a shed behind a house, (3) as he and Hilburn ran from the vehicle, they heard Julie yell "Please don't, don't shoot me," (4) he heard her press the gas pedal in the car, (5) she pulled the vehicle into a driveway and dogs ran up to the car barking, (6) he heard Petitioner yell "Bitch, you ain't going to let me out right here," (7) Julie backed her vehicle out of the driveway and into the road the opposite direction she had been driving, (8) he heard two gunshots while behind the shed and saw flashes of light through the vehicle's tinted windows, (9) the car was still rolling and he heard the emergency brake being pulled and the tires squealing, (10) he saw Julie Rhodes get out of the vehicle and Petitioner push her in the back, away from the car, (11) he saw Julie Rhodes run down the street and could hear her crying, and (12) Petitioner could see Garrison and Hilburn behind the shed, pointed his gun at them, and told them to get back inside the car.
Petitioner did not present any complaint about the quality or scope of his trial counsel's cross-examination of Garrison in Petitioner's Rule 32 petition. Instead, Petitioner raised his complaint about the scope of his trial counsel's cross-examination of Garrison for the first time on direct appeal from the denial of his Rule 32 petition.
In his federal habeas corpus petition, Petitioner argues that based upon Garrison's trial testimony and statements to police, it was "absolutely clear that he could not have heard the statements of the victim about which he testified, nor could he possibly have seen Barksdale push her from the car after the shooting."
Petitioner does not allege any specific facts or furnish this court an affidavit from Garrison stating what testimony beneficial to the defense Garrison would have furnished had Petitioner's trial counsel attempted to cross-examine Garrison with regard to any of these subjects. Petitioner offers no photographs of the crime scene, expert testimony, or other evidence establishing it was physically impossible for Garrison to have heard or seen the things about which he testified on direct examination at Petitioner's capital murder trial.
After independent, de novo, review, it is clear that attempting to employ Garrison's prior statements to law enforcement to impeach Garrison's trial testimony regarding the events at the crime scene would have been an exercise in futility. Garrison's cryptic, unsigned, handwritten first statement makes no mention of him or Hilburn hiding behind a shed at the time of the fatal shooting; in relevant part, it states only: "Then he stopped a girl in the car, got her to carry us to his friend [sic] house. Then he shot her, and we came back to Guntersville."
Garrison's second, signed, far more detailed, statement includes the following passage:
Petitioner argues in his federal habeas corpus petition that Garrison's prior statements to police demonstrated it was impossible for Garrison to have seen and heard what happened at the crime scene. Garrison's signed handwritten statement plainly reveals something quite different. Garrison explained in his signed handwritten statement that he looked around the shed behind which he was hiding and saw "flashes" as Petitioner fired the fatal gunshots inside Julie Rhodes's vehicle and Petitioner exited the vehicle, ran around the rear of the vehicle, and then pushed Julie Rhodes in the back after she also had exited the vehicle.
Furthermore, Petitioner's complaints in his federal habeas petition assume facts not in evidence and misrepresent Garrison's actual testimony on direct examination. Garrison testified without contradiction that when Julie Rhodes brought her vehicle to a stop at a location Petitioner identified, Garrison, Hilburn, and Petitioner all opened their car doors as if they were getting out of the vehicle.
Given the nature of Garrison's testimony on direct, Petitioner's trial counsel could reasonably have concluded it would be unwise to ask Garrison questions on cross-examination that might give Garrison an opportunity to explain how he was able to hear the things Julie Rhodes and Petitioner were yelling at each other. Petitioner's trial counsel could reasonably have concluded that asking Garrison on cross-examination how he heard what went on inside Julie's vehicle after Garrison exited that vehicle might have invited answers emphasizing the highly emotional and loud nature of the verbal exchanges between Julie and the Petitioner immediately before the fatal shooting.
Contrary to the suggestions underlying this portion of Petitioner's ineffective assistance claims, Garrison never testified that all the windows in Julie Rhodes' vehicle were up all the way, all the vehicle's doors were closed, or he was able to see the movements of Petitioner and Julie inside the vehicle immediately before the fatal shooting. Instead, Garrison testified that he heard gunshots and saw "a flash through the tinted windows."
The only copy of Garrison's prior signed statement to the police currently in the record would not have furnished a basis for cross-examining (and impeaching) Garrison as to his account at trial of the circumstances leading up and immediately following the fatal shooting.
Moreover, Petitioner has presented no fact-specific allegations and no evidence showing that prosecution witness Candace Talley was willing to testify at the time of Petitioner's capital murder trial that Garrison ever told her anything that was significantly different from the testimony Garrison furnished at Petitioner's trial. Ms. Talley testified at Petitioner's trial that, during a car ride with Petitioner the day after the fatal shooting, she and Petitioner discussed the need to get rid of Julie Rhodes' vehicle.
During his Rule 32 proceeding, however, Petitioner did not call Garrison to testify and did not present the state court with an affidavit from Garrison suggesting that Garrison would have furnished any testimony helpful to Petitioner had Garrison been cross-examined in November 1996 in the manner Petitioner now urges. Petitioner does not present this court with any fact-specific allegations or an affidavit from Garrison stating what answers Garrison would have given had Garrison been cross-examined in the manner now advocated by Petitioner.
After independent de novo review, Petitioner's complaints about the alleged failure of his trial counsel to adequately cross-examine prosecution witness Garrison fail to satisfy either prong of the Strickland standard. There is no reasonable probability that, but for the failure of Petitioner's trial counsel to cross-examine Garrison in the manner Petitioner now urges, the outcome of either phase of Petitioner's capital murder trial would have been any different. Even disregarding Garrison's testimony of what he heard and saw at the crime scene, the evidence of Petitioner's guilt was overwhelming. Garrison was not the only witnesses who testified at trial that, on the day of the fatal shooting, he heard Petitioner state he was prepared to rob and shoot someone to obtain a vehicle to return to the Guntersville area.
Likewise, impeaching Garrison's testimony in the manner now urged by Petitioner would have done little to diminish the aggravating factors the jury and sentencing judge were required to consider at the punishment phase of trial. The jury concluded the evidence established beyond a reasonable doubt that Petitioner intentionally murdered Julie Rhodes while in the course of robbing or attempting to rob her and while she was inside a vehicle. Both of those determinations are not subject to legitimate dispute. Garrison's testimony, while far from complimentary toward Petitioner, was not what established the third aggravating factor, i.e., the heinous, atrocious, and cruel nature of Petitioner's capital offense. As previously explained in Section IV.D., the evidence establishing the heinous, atrocious, and cruel nature of Petitioner's capital offense consisted of the testimony of the witnesses who saw and heard Julie Rhodes's pleas for help, the witnesses who heard Julie's statements that she was aware she was dying, the medical professionals who treated her injuries, and the medical examiner who performed her autopsy. Cross-examining Garrison more thoroughly concerning what he saw and heard at the crime scene would not, in all reasonable probability, have had any outcome-determinative impact upon the jury's verdict at either phase of Petitioner's capital murder trial.
Upon independent, de novo review, Petitioner's unexhausted, conclusory complaints about the failure of his trial counsel to more thoroughly cross-examine prosecution witness Garrison fail to satisfy either prong of the Strickland standard. Paragraphs 4 and 22 through 33 of Petitioner's federal habeas corpus petition do not warrant federal habeas corpus relief. Moreover, these baseless complaints potentially violate Rule 11(b)(1), (b)(2), & (b)(3), Fed.R.Civ.P.
In paragraphs 34 through 37 of his federal habeas corpus petition, Petitioner argues his trial counsel should have moved for a continuance and appointment of a new investigator after Garrison accepted a plea bargain on the eve of trial.
Petitioner did not raise any complaint about his trial counsel's failure to request a continuance in his Rule 32 petition. Instead, Petitioner first complained about his trial counsel's failure to move for a continuance in his brief on appeal to the Alabama Court of Criminal Appeals from the state trial court's denial of his Rule 32 petition.
Petitioner argues that a conflict of interest existed after Garrison accepted the prosecution's plea bargain because their joint investigator could no longer serve two clients with divergent interests.
Petitioner identifies no matters he had requested his court-appointed investigator to investigate which had not already been fully explored and developed by the time Garrison entered into his plea bargain. Nor does Petitioner allege any facts showing that any aspect of the prosecution's case against Petitioner remained to be fully investigated by Petitioner's court-appointed investigator at the time Garrison accepted the prosecution's plea offer. Petitioner does not allege any facts showing that his trial counsel planned to call Petitioner's court-appointed investigator to testify at trial on any matter. Under these circumstances, Petitioner's trial counsel's failure to move for continuance and appointment of a new investigator on the eve of trial did not cause the performance of Petitioner's trial counsel to fall below an objective level of reasonableness. "The defense of a criminal case is not an undertaking in which everything not prohibited is required. Nor does it contemplate the employment of wholly unlimited time and resources." Smith v. Collins, 977 F.2d 951, 960 (5th Cir. 1992), cert. denied, 510 U.S. 829 (1993).
Moreover, Petitioner has again failed to identify any additional exculpatory or mitigating evidence that could have been located and made available to Petitioner at trial had Petitioner's trial counsel moved for a continuance and appointment of a new investigator on the eve of trial. Petitioner alleges no facts showing that, but for the failure of his trial counsel to request a continuance and appointment of a new investigator, any identified additional information beneficial to Petitioner would have been discovered and made available to Petitioner's defense team. In fact, Petitioner's pleadings in support of this portion of Petitioner's multi-faceted ineffective assistance claims fail to allege any facts sufficient to satisfy the prejudice prong of the Strickland standard. Allegations in a federal habeas corpus petition must be factual and specific, not conclusory. Harris v. Commn'r, Ala. Dep't of Corr., 874 F.3d at 691; Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d at 1061.
As discussed at length above in Section IV.E.3., the evidence of Petitioner's guilt was overwhelming, as was the evidence establishing the existence of the three aggravating factors relied upon by the sentencing judge. Petitioner has not identified any additional potentially mitigating evidence that he claims his defense team would have discovered had Petitioner's trial counsel moved for a continuance and appointment of a new investigator once Garrison accepted his plea offer. Under such circumstances, there is no reasonable probability that, but for the failure of Petitioner's trial counsel to move for continuance and appointment of a new investigator on the eve of trial, the outcome of either phase of Petitioner's capital murder trial would have been any different.
Upon independent, de novo review, Petitioner's complaints about the failure of his trial counsel to move for a continuance and for appointment of a new investigator on the eve of trial do not satisfy either prong of the Strickland standard. Paragraphs 34 through 37 of Petitioner's federal habeas corpus petition do not warrant federal habeas corpus relief.
In paragraphs 38 through 46 of his federal habeas corpus petition, Petitioner argues that his trial counsel failed to (1) adequately investigate Petitioner's background, (2) develop and present potentially mitigating evidence at trial, and (3) argue effectively in favor of a life sentence.
In his Rule 32 petition, Petitioner argued that his trial counsel rendered ineffective assistance by (1) failing to obtain complete and accurate information regarding Petitioner's family and social history, educational history, medical history, mental health history, correctional history, and community and cultural influences, (2) failing to investigate to prepare for the penalty phase of trial, (3) failing to talk or meet with Petitioner's parents, (4) failing to create a family history, (5) failing to contact and talk with Max Johnson, Petitioner's "godfather" and father of Petitioner's best friend, (6) failing to investigate Petitioner's use of marijuana and alcohol, (7) failing to hire an expert to determine whether Petitioner had any neurological impairments, (8) failing to hire a mental health professional to determine whether Petitioner had any mental health problems, (9) failing to obtain Petitioner's educations records, including those showing Petitioner earned a GED and completed a course in small engine repair, (10) failing to make an opening argument at the punishment phase of trial, (11) failing to present any witnesses at the punishment phase of trial, (12) failing to articulate why Petitioner's relative youth made Petitioner less culpable or more deserving of mercy, and (13) referring to Petitioner during closing punishment phase jury argument as "one of the least in our society."
The state trial court held an evidentiary hearing to address this aspect of Petitioner's ineffective assistance claims. During the evidentiary hearing held June 23-24, 2005, Petitioner's former trial counsel (attorney Tommy Goggans) testified on direct examination that he had his own firearms expert, Joe Shirey, test-fire the murder weapon. He was aware of Petitioner's prior conviction in Virginia and saw documents showing Petitioner had been convicted of armed robbery. He discussed the prior conviction with Petitioner. He spoke with the victim of that prior offense. He understood Petitioner was not the gunman in the prior case but, rather, Petitioner was the setup man. He spoke on the telephone with Petitioner's mother, Mary Archie, who was not cooperative. The information Ms. Archie provided was not helpful. It was difficult to get information from Petitioner's mother. He he was unable to get Ms. Archie to talk about much of anything. He was aware of Petitioner's behavior while incarcerated in Virginia. He knew Petitioner's parents had divorced. He did not recall Petitioner informing him that Petitioner had been the victim of domestic abuse. He spoke with Petitioner's father, who said Petitioner got involved with gangs and selling drugs and had a pattern of lying to get out of trouble. The last thing he wanted to come out in the courtroom were the things Petitioner's father told him about Petitioner. He was aware Petitioner dropped out of school but later earned a GED in prison. He did not recall talking with Petitioner's brother or with Maxwell Johnson. He was aware Petitioner had been born at Camp Lejeune. He made multiple attempts to contact each of Petitioner's parents, and he believed the strongest mitigating factor in Petitioner's favor was his youth.
On cross-examination attorney Goggans testified the victim in Petitioner's prior offense recognized Petitioner. He preferred to stipulate to the admission of the judgment from Petitioner's prior offense rather than to have the victim of that offense take the stand as a live witness and identify Petitioner in front of the jury as one of his assailants and furnish the details of that offense. He believed Petitioner's prior offense involved some degree of planning. Because one of the aggravating factors in Petitioner's capital offense was that it involved a robbery, he did not want Petitioner's prior robbery victim to take the stand. Under Alabama law, one who is guilty as an aider and abetter is considered equally guilty with the principal offender. Petitioner's mother told him that Petitioner had gotten himself into trouble and it was Petitioner's trouble. It was difficult to keep Petitioner's mother on the phone. Petitioner's mother never mentioned to him that Petitioner had any problems with his father or any medical or mental health problems. Petitioner's mother did not mention to him any history of domestic violence in the family. Petitioner's father was straight-forward during their telephone conversations but said Petitioner tends to have a pattern of lying when he gets himself into trouble. He did not want to have Petitioner's father testify at either phase of trial in the same manner that he had described Petitioner in their telephone conversations. Petitioner never told him that he had any medical or mental health condition and denied any history of medical or mental problems. Petitioner informed him that he had a good relationship with his family. Petitioner said he could recall no significant adverse events that affected him during his adolescent years. Petitioner admitted daily abuse of marijuana and alcohol from age fourteen. He had no information suggesting Petitioner's alcohol or marijuana abuse was to the extent it would be a mental disease or defect. He believes evidence of drug or alcohol abuse does not impress most jurors unless it is extraordinarily severe. He believed that evidence of Petitioner's marijuana abuse would have a negative impact on the jury. Opening statements at the punishment phase of a capital murder trial merely summarize what the attorneys expect the evidence will show. He presented all the mitigating evidence he had available, and he did not want to put on evidence showing Petitioner's gang affiliation or involvement in drug trafficking.
On re-direct examination, attorney Goggans explained that he did not record every activity he undertook as Petitioner's counsel on his time sheets. Petitioner's mother was hard to talk with, and the defense's theory at trial was that the shooting had not been intentional and that theory was supported by Petitioner's statement which the prosecution introduced into evidence.
Petitioner's mother Mary Archie testified on direct examination that she had two sons with Petitioner's father — Tyrone Barksdale, Jr. and Petitioner. The family was living at Camp LeJeune when Petitioner was born. She separated from her husband when Petitioner was two years old. Petitioner's father was in the Marines. She has a history of drug abuse. She abused drugs while pregnant with Petitioner, specifically marijuana, PCP, and crack cocaine. Smoking PCP made her feel like a zombie. She used marijuana daily while pregnant with Petitioner.
Ms. Archie testified Petitioner's father was abusive toward her prior to their divorce. She recalled one incident when she was pregnant with Petitioner in which Petitioner's father grabbed her by the hair, dragged her out the door, and punched her in the face. As a result, she fell into a bathtub and could not get out. Her relationship with Petitioner's father became more abusive after Petitioner's birth, both verbally and physically. At that time she went to the battered women's commission for assistance. Her children saw her being abused. Petitioner's father abused her physically more than ten times. She was afraid of Petitioner's father. On one occasion on her birthday, Petitioner's father assaulted her with a knife and slapped her. She managed to get the knife away from him and swung it at him. Petitioner's father was violent toward their sons, striking and punching them in the chest. Her sons would fall and cry when struck by their father. She witnessed Petitioner's father strike Petitioner at least four times, including at age six.
Ms. Archie testified further that Petitioner was two years old when the family left Camp LeJeune. Petitioner suffered from poor circulation and headaches growing up. Petitioner was about four years old when she separated from Petitioner's father. She got custody of her sons when she divorced Petitioner's father. She was still using drugs at that point. Her children never saw her use drugs.
Ms. Archie testified that when Petitioner was about six years old, her sons witnessed her "sell" a friend of hers (presumably in prostitution). Petitioner's father continued to be violent toward her following their divorce. Her sons witnessed a couple of incidents of violence between their parents. One incident, which occurred when Petitioner was about seven, involved Petitioner's father kicking in a door and yelling at the boys to go upstairs, after which he attempted to rape her with a broom stick. At age nine or ten, Petitioner went to live with his father. During that time, she managed to get clean and sober for about a year but then went back on drugs, specifically marijuana, crack cocaine, and Tylenol with codeine. She had very little contact with Petitioner after he went to live with his father.
Ms. Archie testified she experienced a pair of nervous breakdowns while her sons lived with her. When she experienced her first nervous breakdown (when Petitioner was about six years old), her sons witnessed her being taken away by ambulance. She was later hospitalized for a second nervous breakdown.
Ms. Archie also testified Petitioner did well in school when he lived with her and went to church. Petitioner was on the basketball team after school and won many awards. Sports played a big role in Petitioner's life growing up. After her sons went to live with their father, her drug abuse grew worse and she saw very little of her sons. At some point, Petitioner's father forced Petitioner to quit playing sports so Petitioner could take care of his grandmother. Petitioner told her he was disgusted that he could no longer play like the other kids.
Ms. Archie testified that Petitioner's father remarried and Petitioner's step-mother treated her own children better than Petitioner and his brother. On one occasion, their step-mother made Petitioner and his brother sit outside Ms. Archie's house for three or four hours to wait for their father. Petitioner was involved in an armed robbery while he was living with his father. Prior to that incident, Petitioner's only trouble with the law came around age seven or eight when he got into a fight with another boy. She did not go to any court proceedings involving Petitioner or visit him at the juvenile detention facility because she stayed high. She learned Petitioner was in jail for armed robbery when Petitioner's father told her. Petitioner was charged as an adult in the armed robbery case but it was Petitioner's brother who had the weapon. Petitioner had no role in the armed robbery. She recalled an incident in which Petitioner's father and older brother brandished guns during a dispute with a neighbor of Ms. Archie. Petitioner's father was arrested twice — once while in the military and once for crack. She has been arrested once.
Ms. Archie testified Petitioner never finished high school but earned a GED and took a course in small motors in prison. She did not visit Petitioner when he was in prison because she was high. After his release from prison, Petitioner remained in Virginia for a time. Sometime in 1994-95, Petitioner went to Alabama. He later visited her around Thanksgiving. Petitioner told her he was going to start school in Alabama. She learned of Petitioner's arrest for murder prior to his trial and was later told Petitioner had been convicted. She was financially unable to attend Petitioner's murder trial. She attended Petitioner's Rule 32 hearing only because Petitioner's attorneys helped her pay for everything. She recalled two telephone conversations with Petitioner's trial counsel, who informed her Petitioner was going to be convicted of capital murder and electrocuted. Attorney Goggans never asked her about Petitioner's background, childhood, school years, health history, or any history of drug abuse or violence by her or Petitioner's father. Petitioner wrote her at some point and told her attorney Goggans was not on Petitioner's side. Petitioner told her attorney Goggans would not visit him in jail and did not return Petitioner's telephone calls. Attorney Goggans never gave her any hope Petitioner could avoid the death penalty.
On cross-examination, Ms. Archie testified that she could recall two instances of violence between her and Petitioner's father after they separated (when Petitioner was two years old). Petitioner had poor circulation, headaches, and amnesia as a child but she could not recall when that happened. She learned of Petitioner's armed robbery conviction after the fact. Petitioner's older brother was still in prison and unavailable to testify at the time Petitioner was tried for capital murder. Petitioner was eighteen years old when released from prison in Virgina. She did not stop using drugs until around the year 2000. Attorney Goggans informed her during their telephone calls that Petitioner would be convicted and get lethal injection. She was unable to attend Petitioner's capital murder trial due to her financial situation. Attorney Goggans was unable to furnish her the financial assistance she needed to attend the trial. Petitioner did not have drug, alcohol, or educational problems growing up. She never abused Petitioner, and she does not know Maxwell Johnson.
Maxwell Orin Johnson, a retired Marine Lieutenant Colonel, testified on direct examination that his son and Petitioner were close in age, played basketball together, and were friends in junior high school in Virginia. His son told him that Petitioner had problems at home. Around age twelve to thirteen, Petitioner stayed at the Johnson home for several weeks to "a couple months" sometime in 1987-89 when things "got hot" at home. The only thing Lt. Col. Johnson knew about Petitioner's parents was that "they were trouble, I guess." Petitioner was mature, articulate, smart, a good athlete and got good grades in middle school. He knew Petitioner to be a "fine kid." He had no personal knowledge regarding Petitioner's background and only knew what others had told him. He had heard of physical as well as verbal abuse in Petitioner's home. He had heard Petitioner's older brother was bad. He heard Petitioner got arrested and went down to see Petitioner. Petitioner told him that Petitioner's brother Tyrone had robbed a pizza delivery guy and Petitioner took the fall for the crime. Lt. Col. Johnson was unable to get Petitioner into the Marines because of Petitioner's criminal record. He had never known Petitioner to lie. He was aware Petitioner had earned his GED and believed Petitioner could benefit from "distance learning." He never had any contact with Petitioner's parents until he met Petitioner's mother in Alabama, long after Petitioner's capital murder trial. He bought a bus ticket for Petitioner in November, 1995 because Petitioner said he had a job in Alabama. He he was traveling frequently during that time frame and did not hear from petitioner for another six-to-nine months. He heard Petitioner had been tried and convicted for murder in the course of a carjacking. He contacted attorney Goggans in mid-1997 to early-1998 but got very little information about Petitioner's case. By that time, Petitioner's conviction was on appeal. He had his first post-trial telephone contact with Petitioner in mid-1998. He sent money to Petitioner monthly, sent baseball shoes annually, and writes to petitioner regularly. He feels that at some point he became Petitioner's surrogate father. He believes Petitioner has the potential to do good.
On cross-examination, Lt. Col. Johnson testified that he first met Petitioner in 1987-89 when Petitioner was ten or eleven years old. Petitioner moved in with his family in 1989-90 when Petitioner was thirteen or fourteen years old. He did not know Petitioner's parents and never obtained a court order or guardianship authority when Petitioner moved in with his family. When Petitioner moved in with his family, he did not contact social services or the police to report allegations of abuse. He never personally heard any allegations of abuse from Petitioner. He never notified Petitioner's parents when Petitioner moved in and lived with his family. He was unaware that Petitioner had informed the probation officer who prepared Petitioner's presentence report that he regularly used marijuana and alcohol since age fourteen. He had noticed no mental or physical problems with Petitioner. He was not ordained as Petitioner's "godfather" in any type of church ceremony. He lived at the same address from 1987 through the date of Petitioner's trial in November, 1996 but Petitioner never wrote or called him during that time frame. He never asked Petitioner about any of the rumors of abuse he had heard.
North Carolina criminal defense attorney Ernest Lee Conner, Jr. testified on direct examination that he passed the bar in 1987, had tried several capital cases in North Carolina, had taught at national conferences, and was familiar with the Supreme Court's opinions in Strickland v. Washington and Williams v. Taylor. He had not spoken with Petitioner or attorney Goggans but did not believe he needed to do so to render an opinion regarding the performance of attorney Goggans. The testimony of Petitioner's mother was irrelevant to his opinion. He could tell from the record that there was `tremendous mitigation evidence out there," including petitioner's school, juvenile, and medical records. He believed attorney Goggans had not been on the phone enough with Petitioner or Petitioner's mother. He believed attorney Goggans should have requested funding for a mitigation investigator who could have interviewed Petitioner's parents. In his opinion, attorney Goggans failed to adequately investigate "the case" and failed to meet often enough with and interview petitioner. He believed attorney Goggans failed to adequately investigate an accidental shooting defense. He believed the American Bar Association ("ABA") Guidelines establish the constitutional standard for criminal defense counsel. He advocates filing meritless motions in capital cases because the law may change. Attorney Goggans failed to get a signed release to obtain Petitioner's medical and educational records. He believed attorney Goggans should have filed a motion requesting appointment of a new investigator. He believed attorney Goggans should have pursued plea negotiations to take the death penalty off the table. He believed attorney Goggans should have gotten a release from petitioner and spoken with Petitioner's attorney in the Virginia armed robbery case.
On cross-examination, attorney Conner testified that (1) when asked to do so by the state, Petitioner's Rule 32 counsel had identified no medical care providers or schools possessing documents containing mitigating evidence and (2) the ABA Guidelines are not the constitutional standard for ineffective assistance of counsel claims.
In an Order issued October 4, 2005, the state trial court rejected Petitioner's remaining ineffective assistance claims, including his complaints that his trial counsel failed to adequately investigate Petitioner's background, or discover, develop, and present mitigating evidence.
In a Memorandum issued August 24, 2007, the Alabama Court of Criminal Appeals affirmed the circuit court's denial of Petitioner's Rule 32 petition, concluding the state trial court correctly rejected Petitioner's ineffective assistance claim premised on Petitioner's complaints about his trial counsel's alleged failures to investigate Petitioner's background and discover, develop and present available mitigating evidence.
Strickland v. Washington, 466 U. S. at 690-91.
Id., 466 U. S. at 691.
Harrington v. Richter, 562 U. S. at 105 (citations omitted).
In paragraphs 38 through 44 of his federal habeas petition, Petitioner complains that his trial counsel (1) "did not conduct any investigation at all for the purpose of obtaining evidence to present at the sentencing phase of trial," (2) "offered no witnesses and but a single exhibit," (3) failed to adequately meet and communicate with Petitioner and his family in a search for mitigating evidence, (4) failed to speak with any person (like Lt. Col. Maxwell Johnson) who was important in Petitioner's upbringing or who might have known Petitioner from childhood, (5) never investigated any aspect of Petitioner's background or youth, (6) failed to discover Petitioner's parents were both drug abusers, and (7) failed to discover that Petitioner witnessed and was the victim of domestic violence.
Petitioner presented the state trial court with no factual allegations and no evidence establishing what investigation, if any, Petitioner's court-appointed investigator Joe Shirey conducted into Petitioner's background.
Petitioner's mother testified at Petitioner's Rule 32 hearing about her own lengthy history of drug abuse and multiple instances of physical violence by Petitioner's father toward her and her sons.
Maxwell Orin Johnson testified during Petitioner's Rule 32 hearing that (1) he had never met Petitioner's parents prior to the date of Petitioner's capital murder trial, (2) he had no personal knowledge of any abuse within Petitioner's home, (3) he never questioned Petitioner when Petitioner informed him that he (Petitioner) had problems at home, (4) Petitioner resided with his (Johnson's) family for "several weeks" to "a couple months" when things were "hot" at Petitioner's home and Petitioner was twelve or thirteen years old, (5) he never contacted child welfare or law enforcement authorities with regard to Petitioner's situation, (6) "I never knew anything about his parents other than they were trouble, I guess," (7) he had no details on Petitioner's background, (8) "I have never had any contact with his parents at all," and (9) Petitioner was mature, articulate, smart, a good athlete, and got good grades in middle school, i.e., "a fine kid."
Given the information reasonably available to Petitioner's trial counsel at the time of Petitioner's November 1996 trial, the relevant questions are whether Petitioner's trial counsel conducted an objectively reasonable investigation into Petitioner's background and presented an objectively reasonable range of the available mitigating evidence. See Sears v. Upton, 561 U.S. 945, 953-54 (2010) (the proper focus of an evaluation of trial counsel's performance at the punishment phase of a capital murder trial is on whether counsel fulfilled their obligation to conduct a thorough investigation of the defendant's background; the objective reasonableness of trial counsel's tactical decisions must be viewed in the context of the objective reasonableness of counsel's investigation into the defendant's background). In the context of penalty phase mitigation in capital cases, the Supreme Court has held that it is unreasonable not to investigate further when counsel has information available to him that suggests additional mitigating evidence — such as mental illness or a history of childhood abuse — may be available. See Porter v. McCollum, 558 U.S. 30, 39-40 (2009) (trial counsel failed to interview any witnesses or to request any of the defendant's school, medical, or military records and ignored information in a report on the defendant's competency evaluation suggesting possible mitigating evidence — including evidence of mental illness — could be gleaned from investigation into the defendant's family background and military service); Wiggins v. Smith, 539, U. S. 510, 524-26 (2003) (counsel failed to investigate the defendant's background beyond review of summary records from competency evaluation, presentence report, and records from the state foster care system, failed to compile a social history of the defendant, and presented no mitigating evidence concerning the defendant's background); Williams v. Taylor, 529 U.S. 362, 395-96 (2000) (counsel failed to conduct even a cursory investigation into the defendant's background which would have shown the defendant's parents had been imprisoned for the criminal neglect of the defendant and his siblings, the defendant had been severely beaten by his father, and had been returned to his parents' custody after they were released from prison).
Petitioner alleged no specific facts in his Rule 32 petition and presented the state trial court with no evidence showing (1) Petitioner ever communicated any information to his defense team prior to November 1996 indicating that (a) he had suffered abuse or neglect as a child, (b) he suffered from any medical, neurological, or mental health condition, or (c) he experienced any educational problems during his childhood, (2) there was any information reasonably available prior to Petitioner's capital murder trial suggesting that exploration of Petitioner's educational, medical, social, correctional, or mental health records might produce potentially mitigating evidence, (3) Petitioner ever informed his defense team that Maxwell Johnson could furnish testimony regarding Petitioner's good character, or (4) any other evidence was reasonably available prior to Petitioner's November 1996 trial which would have alerted Petitioner's trial counsel to the possibility that further investigation into Petitioner's educational, family, social, correctional, medical, or mental health records could have produced potentially mitigating evidence. For these reasons, the state trial court and state appellate court reasonably concluded that it was objectively reasonable for Petitioner's trial counsel not to access Petitioner's educational, social, correctional, medical, or mental health records.
A defense attorney preparing for the sentencing phase of a capital trial is not required "to scour the globe on the off chance something will turn up." Rompilla v. Beard, 545 U.S. 374, 382-83 (2005); Everett v. Sec., Fla. Dep't of Corr., 779 F.3d 1212, 1250 (11th Cir. 2015), cert. denied, 136 S.Ct. 795 (2016). Rather, diligent counsel may draw the line when they have good reason to think that further investigation would be a waste. Rompilla v. Beard, 545 U. S. at 383; Everett v. Sec., Fla. Dep't of Corr., 779 F.3d at 1250. The scope of the duty to investigate mitigation evidence is substantially affected by the defendant's actions, statements, and instructions. Cummings v. Sec'y, Fla. Dep't of Corr., 588 F.3d 1331, 1357 (11th Cir. 2009), cert. denied, 562 U.S. 872 (2010). In this case, Petitioner failed to identify Maxwell Johnson to his defense team as a potential character witness. Petitioner and his mother both failed to inform Petitioner's defense team of any information suggesting that additional investigation into Petitioner's educational, family, social, correctional, medical, or mental health history background might produce mitigating or beneficial evidence or otherwise lead to the discovery of such evidence.
Petitioner's trial counsel was well aware of Petitioner's alleged history of daily marijuana and alcohol abuse. Petitioner's trial counsel testified that he chose not to further investigate Petitioner's history of alcohol and marijuana abuse based on (1) his belief that such evidence could potentially be harmful to the defense, (2) his belief that evidence of Petitioner's drug and alcohol abuse would likely prove beneficial to the Petitioner only if the evidence showed Petitioner's abuse of drugs and alcohol was extreme or severe, and (3) the fact he found no evidence suggesting Petitioner's abuse of alcohol or drugs was severe or sufficient enough to rise to the level of a mental disease or defect.
Petitioner's trial counsel was also well aware that Petitioner claimed to have earned his GED while incarcerated.
During Petitioner's capital murder trial the prosecution presented extensive testimony detailing Petitioner's activities on the date of the murder, beginning when Petitioner and his accomplices crashed a stolen car into the front yard of a residence in Talladega near Sylacauga and began seeking a series of rides, first into Alexander City and then back to Guntersville.
Given the absence of any evidence showing that either Petitioner actually abused drugs or alcohol on the date of his capital offense or Petitioner's history of abusing alcohol or drugs had any impact on his actions on December 1, 1995, the state trial court and state appellate court reasonably concluded that it was objectively reasonable for Petitioner's trial counsel to choose not to investigate further Petitioner's assertions that he had used alcohol and marijuana daily since age fourteen. Absent some evidence linking Petitioner's alleged alcohol or drug abuse to Petitioner's capital offense (such as evidence showing that, at the time of his capital offense, Petitioner was intoxicated, impaired, or suffering either from an intense craving for drugs or alcohol or from withdrawal symptoms), Petitioner's trial counsel could reasonably have believed that further investigation into Petitioner's history of long term marijuana and alcohol abuse was unlikely to produce compelling mitigating or exculpatory evidence.
Contrary to the suggestions implicit in attorney Conner's testimony at Petitioner's Rule 32 hearing, "[t]he defense of a criminal case is not an undertaking in which everything not prohibited is required. Nor does it contemplate the employment of wholly unlimited time and resources." Smith v. Collins, 977 F.2d at 960. Likewise, attorney Conner's contention that the ABA Guidelines establish the proper standard for evaluating ineffective assistance claims is unpersuasive. See Bobby v. Van Hook, 558 U.S. 4, 8-9 (2009) (holding the ABA Guidelines are only "guides" to what reasonableness means, not its definition); Daniel v. Commn'r, Ala. Dep't of Corr., 822 F.3d 1248, 1262-63 & n.10 (11th Cir. 2016) (recognizing the ABA Guidelines furnish guides, not "inexorable commands"). Because attorney Conner did not interview attorney Goggans, had no familiarity with Alabama substantive or procedural criminal law, had no personal knowledge of the information about his background that Petitioner shared with attorney Goggans, had no knowledge of the information Petitioner's defense team discovered (from Petitioner's parents and other sources) while preparing for trial, and had virtually no knowledge of the nature and scope of the potentially mitigating evidence actually available at the time of Petitioner's capital murder trial (including any possible double-edged evidence), the state trial court and state appellate court reasonably chose not to rely on the conclusory opinions of attorney Conner proffered during Petitioner's Rule 32 hearing.
To be effective a lawyer is not required to pursue every path until it bears fruit or until all hope withers. Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d at 649; Puiatti v. Sec., Fla. Dep't of Corr., 732 F.3d 1255, 1280 (11th Cir. 2013), cert. denied, 135 S.Ct. 68 (2014). "[C]ounsel is not required to present all mitigating evidence, even if the additional mitigating evidence would not have been incompatible with counsel's strategy. Counsel must be permitted to weed out some arguments to stress others and advocate effectively." Tanzi v. Sec., Fla. Dep't of Corr., 772 F.3d 644. 659 (11th Cir. 2014) (quoting Halliburton v. Sec'y for Dep't of Corr., 342 F.3d 1233, 1243-44 (11th Cir. 2003), cert. denied, 541 U.S. 1087 (2004)), cert. denied, 136 S.Ct. 155 (2015). Accord Debruce v. Commn'r, Ala. Dep't of Corr., 758 F.3d 1263, 1299 (11th Cir. 2014) ("Counsel is not required to present every nonfrivolous defense, nor is counsel required to present all mitigation evidence, even if the additional mitigation evidence would not have been incompatible with counsel's strategy."), cert. denied, 135 S.Ct. 2854 (2015).
It is strongly presumed that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland v. Washington, 466 U. S. at 690. Petitioner presented no evidence to the state trial court or state appellate court showing the extent or product of the investigation, if any, Petitioner's court-appointed investigator undertook into Petitioner's background. Petitioner did not testify at his Rule 32 hearing or offer any other evidence controverting attorney Goggans' detailed account of the information (about Petitioner's background) which Petitioner communicated to attorney Goggans prior to trial. Petitioner presented the state trial court and state appellate court with no evidence showing it was objectively unreasonable for Petitioner's defense team to believe, based upon the information furnished to his defense team by Petitioner and his parents, that it was unlikely any potentially mitigating evidence would be produced by (1) further investigation into Petitioner's history of drug and alcohol abuse, (2) the acquisition and review of Petitioner's medical, mental health, social, educational, and correctional records, (3) interviewing Petitioner's imprisoned older brother, (4) subjecting Petitioner to mental health or neuropsychological evaluations, or (5) searching for persons such as Maxwell Johnson who could testify as character witnesses based almost exclusively upon their knowledge of Petitioner as a child.
Attorney Goggans testified without contradiction at Petitioner's Rule 32 hearing that Petitioner's own father disclosed that Petitioner had been involved with a gang and engaged in drug trafficking and Petitioner had a pattern of lying to get out of trouble.
To satisfy the first prong of Strickland, i.e., establish that his counsel's performance was constitutionally deficient, a convicted defendant must show that counsel's representation "fell below an objective standard of reasonableness." Wiggins v. Smith, 539 U.S. 521; Williams v. Taylor, 529 U.S. 390-91. In so doing, a convicted defendant must carry the burden of proof and overcome a strong presumption that the conduct of his trial counsel falls within a wide range of reasonable professional assistance. Strickland v. Washington, 466 U. S. at 687-91. Courts are extremely deferential in scrutinizing the performance of counsel and make every effort to eliminate the distorting effects of hindsight. See Wiggins v. Smith, 539 U. S. at 523 (holding the proper analysis under the first prong of Strickland is an objective review of the reasonableness of counsel's performance under prevailing professional norms, which includes a context-dependent consideration of the challenged conduct as seen from the perspective of said counsel at the time). "No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Bobby v. Van Hook, 558 U. S. at 7; Strickland v. Washington, 466 U. S. at 688-89.
The state trial court and state appellate court rejected Petitioner's ineffective assistance claims on the merits following an evidentiary hearing. In so doing, the state court implicitly concluded attorney Goggans' testimony was more credible than that of petitioner's mother and reasonably concluded Petitioner's complaints about the failure of his trial counsel to investigate Petitioner's background for mitigating evidence and present witnesses at the punishment phase of trial failed to overcome the presumption of reasonableness afforded the decisions of trial counsel.
In light of the evidence presented during Petitioner's Rule 32 hearing (especially the information Petitioner's father gave to attorney Goggans concerning Petitioner's history of gang involvement and drug trafficking — the accuracy of which information Petitioner did not challenge in the state court and has not challenged in this court), the state trial and appellate courts reasonably concluded that attorney Goggans' decision not to interview other, unidentified persons who had personal knowledge of Petitioner's background was objectively reasonable.
In evaluating prejudice in the context of the punishment phase of a capital trial, a federal habeas court must re-weigh all the evidence in aggravation against the totality of available mitigating evidence (had the petitioner's trial counsel chosen a different course). Wong v. Belmontes, 558 U. S. at 20; Wiggins v. Smith, 539 U. S. at 534. The Strickland standard does not require the State to "rule out" or negate a sentence of life in prison to prevail; rather, it places the burden on the defendant to show a "reasonable probability" that the result of the punishment phase of a trial would have been different. Wong v. Belmontes, 558 U. S. at 27. The prejudice inquiry under Strickland requires evaluating whether there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U. S. at 694. The likelihood of a different result must be substantial, not just conceivable. Cullen v. Pinholster, 563 U.S. 170, 189 (2011); Harrington v. Richter, 562 U. S. at 112.
Federal habeas corpus petitioners asserting claims of ineffective assistance based on counsel's failure to call a witness (either a lay witness or an expert witness) satisfy the prejudice prong of Strickland only by naming the witness, demonstrating the witness was available to testify and would have done so, setting out the content of the witness's proposed testimony, and showing the testimony would have been favorable to a particular defense. Woodfox v. Cain, 609 F.3d at 808; Day v. Quarterman, 566 F.3d at 538. See also Reed v. Sec'y, Fla. Dep't of Corr., 767 F.3d at 1262 (federal habeas petitioner who failed to show an uncalled witness was available to testify at the time of trial failed to satisfy prejudice prong of Strickland).
Petitioner presented the state court with no evidence at his Rule 32 hearing showing either (1) what potentially mitigating evidence or otherwise helpful information, if any, was contained in any of the Petitioner's medical, mental health, educational, correctional, or social history records that existed and was reasonably available to the defense at the time of Petitioner's November 1996 capital murder trial,
Petitioner did not call his father or brother to testify at his Rule 32 hearing. Petitioner did not testify at his Rule 32 hearing or offer any other testimony or evidence contradicting attorney Goggans' testimony regarding the very harmful information about Petitioner's background that Petitioner and his father gave attorney Goggans prior to trial. Importantly, Petitioner offered the state court no evidence at the Rule 32 hearing suggesting the potentially harmful information Petitioner's father gave to attorney Goggans about Petitioner's gang involvement and drug trafficking was factually inaccurate.
Petitioner did present his mother's testimony about her long history of drug abuse and several instances of physical violence by Petitioner's father directed toward her and her sons.
Petitioner presented no evidence showing that his mother was available to testify in Alabama at the time of Petitioner's November 1996 capital murder trial. By her own admission, at the time of Petitioner's capital murder trial, Mary Archie was a long-term crack and PCP abuser who did not get clean and sober until several years after Petitioner's capital murder trial, i.e., circa the year 2000.
Even when viewed in the light most favorable to Petitioner, the record from Petitioner's Rule 32 hearing shows Petitioner presented the state court with very little truly "new" or "additional" mitigating evidence, i.e., evidence that was unknown to Petitioner's defense team at the time of Petitioner's November 1996 capital murder trial.
As explained at length above in Section V.E.3., there was overwhelming evidence before Petitioner's capital sentencing jury and judge showing Petitioner intentionally and fatally shot Julie Rhodes — twice — while she was inside her vehicle and while Petitioner was in the course robbing or attempting to rob her.
During his Rule 32 proceeding, Petitioner presented the state courts with additional purportedly mitigating evidence (i.e., evidence not presented during trial) showing that (1) prior to his capital offense, Petitioner earned a GED and completed a small motor repair course while incarcerated for armed robbery in Virginia,
Likewise, Petitioner offered no evidence at his Rule 32 hearing showing his capital offense was in any way related to his drug or alcohol abuse. There was no evidence at his trial or Rule 32 hearing suggesting Petitioner was under the influence of drugs or alcohol at the time of his capital offense. There was no evidence at his trial or Rule 32 hearing suggesting Petitioner was suffering from withdrawal symptoms or an intense craving for drugs or alcohol at the time of his capital offense. There was no evidence presented at his trial or Rule 32 hearing showing Petitioner was addicted to alcohol or drugs at the time of his capital offense. Thus, in the context of Petitioner's November 1996 capital murder trial, Petitioner's naked assertion to his trial counsel that he had abused alcohol and marijuana on a daily basis since age fourteen had very little potential mitigating value.
The state trial and appellate courts reasonably concluded there was no reasonable probability that, but for the failure of Petitioner's trial counsel to more fully investigate Petitioner's background and to present any of the evidence admitted during Petitioner's Rule 32 hearing, the outcome of the punishment phase of Petitioner's capital murder trial would have been any different.
Petitioner complains that, during closing jury argument at the punishment phase of trial, his trial counsel presented only a very brief closing argument which focused almost exclusively on Petitioner's youth as a mitigating factor (a factor Petitioner deems inappropriate given the similar age of the victim), failed to adequately mention Petitioner's childhood, family background, or character, and failed to adequately explain why Petitioner was deserving of mercy.
The initial portion of the prosecution's closing argument at the punishment phase of Petitioner's November 1996 capital murder trial consisted of a brief discussion (filling only five pages of the trial transcript) in which the prosecutor (1) defined aggravating and mitigating factors, (2) reminded the jury that weighing aggravating and mitigating factors was not a mathematical process, (3) identified three aggravating circumstances (i.e., the fact Petitioner stood convicted of a murder committed during a robbery, the fact Petitioner had previously been convicted of a crime of violence, and the heinous, atrocious, and cruel nature of petitioner's capital offense), (4) reminded the jury it took ten votes to recommend a sentence of death, (5) argued the evidence showed Julie Rhodes begged the Petitioner not to shoot her, (6) argued the evidence showed Petitioner shoved her out of the way and then abandoned her after shooting her, and (7) argued the Petitioner took away all of the tomorrows Julie Rhodes and her family would otherwise have enjoyed together.
Petitioner's trial counsel then (1) argued to the jury that a sentence of life imprisonment without the possibility of parole was not an inviting proposition, (2) pointed out Petitioner was only eighteen years old on the date of his capital offense and only nineteen years old at the time of trial, (3) acknowledged that Julie Rhodes was also young and her death tragic, (4) argued the jury was legally obligated to consider Petitioner's youth, not as an excuse but as a mitigating factor, (5) argued that everyone, even the least of us, is protected by the law, (6) pointed out Petitioner's parents were not present in the courtroom, (7) pointed out the best Petitioner could hope for was a sentence of life without parole, and (8) asked the jury to vote for life without parole.
The prosecution then swiftly concluded its closing jury argument (filling less than three pages in the trial transcript) by (1) arguing that, while Petitioner was facing, at best, life without parole, Julie Rhodes was only nineteen and "she's left with no life at all," (2) arguing the death penalty is an expression of society's right to self-defense, (3) emphasized the state did not lightly ask the jury to consider the death penalty in this case, (3) arguing Julie Rhodes deserved better than to lose her time on this earth as a result of a decision made by the petitioner, (4) arguing Petitioner had a choice whether to take her car and leave her alive and instead chose to murder the unarmed, defenseless, nineteen year witness to his robbery, (5) urging the jury to bring their personal experiences as citizens of this country to bear when weighing the aggravating and mitigating circumstances, and (6) asking the jury to return a verdict recommending the maximum punishment for Julie's killer.
While Petitioner now faults the length of his trial counsel's punishment phase closing jury argument, that argument must be viewed in proper context.
In his closing argument at the punishment phase of Petitioner's capital murder trial, Petitioner's trial counsel argued the jury was obligated to consider Petitioner's youth as a mitigating factor, urged the jury to view a sentence of life without parole as a severe form of punishment, acknowledged that Julie Rhodes died far too young, pointed out that Petitioner apparently did not have support of his own family, and described Petitioner with a Biblical allusion as "one of the least of us" for whom the law afforded protection. The state trial court and state appellate court reasonably concluded the scope and content of Petitioner's trial counsel's closing jury argument at the punishment phase of trial fell within the broad range of professionally reasonable assistance. Petitioner's trial counsel reasonably identified the lone statutory mitigating factor applicable to Petitioner and urged the jury to give great weight to that factor. Petitioner's trial counsel cannot reasonably be faulted for failing to discuss evidence of Petitioner's background that was not in evidence and not properly before the jury at the punishment phase of trial. Counsel's Rule 32 testimony was completely consistent with the record.
Nor can Petitioner's trial counsel reasonably be faulted for urging the jury to show compassion on Petitioner, as follows: "I have spent what, seven days in Alex City, in a courthouse and I was thinking of the answer of why is that how important it is that inside this rail we are all protected by all the laws, everybody, even the least of us, even Tony Barksdale is. Right now I'm the only one in the courtroom with him. I noted in this — this in the State's exhibit also, apparently, that was the same situation there: Subject's parents are not present in court."
For reasons similar to those discussed at length above in Section V.G.3.a.(2), the state trial court and state appellate court reasonably concluded the Petitioner's complaints about the scope and content of Petitioner's trial counsel's closing jury argument at the punishment phase of Petitioner's capital murder trial failed to satisfy either prong of the Strickland analysis. Likewise, for the reasons discussed above in Section V.G.3.b.(1), the state trial and appellate courts reasonably concluded the decisions by Petitioner's trial counsel to emphasize Petitioner's youth at the time of his capital offense and refer to Petitioner as among "the least of us" were both objectively reasonable.
The state courts could reasonably have concluded, based on the evidence presented during Petitioner's Rule 32 proceeding, that (1) Petitioner failed to establish that his mother was available and willing to testify at Petitioner's November 1996 capital murder trial, (2) there was no compelling mitigating evidence reasonably available at the time of Petitioner's November 1996 capital murder trial in the form of documents relating to Petitioner's educational, medical, mental health, social, correctional, or familial backgrounds, (3) additional investigation into Petitioner's background would not have produced any other compelling mitigating evidence reasonably available at the time of Petitioner's capital murder trial, (4) the decision by Petitioner's trial counsel not to call Petitioner's parents to testify at Petitioner's capital murder trial was objectively reasonable, (5) the decision by Petitioner's defense team not to seek inspection of Petitioner's educational, medical, mental health, social, correctional, or familial records was objectively reasonable, and (6) the decision by Petitioner's defense team not to present any witnesses who could be cross-examined about Petitioner's gang affiliation or history of drug trafficking was objectively reasonable. The state trial court and state appellate court reasonably concluded that Petitioner's complaints about his trial counsel's alleged failure to adequately investigate Petitioner's background and present available mitigating evidence failed to satisfy either prong of the Strickland standard. The state trial court and state appellate court reasonably concluded that Petitioner's complaints about his trial counsel's punishment phase closing jury argument failed to satisfy either prong of the Strickland standard. The state trial court's and state appellate court's rejections on the merits in the course of Petitioner's Rule 32 proceeding of the ineffective assistance complaints contained in paragraphs 38 through 44 of Petitioner's federal habeas corpus petition were neither contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's trial and Rule 32 proceeding.
Finally, in the alternative and after de novo review, the alleged deficiencies in the performance of Petitioner's trial counsel set forth in paragraphs 33 through 46 of Petitioner's federal habeas corpus petition all fail to satisfy the prejudice prong of the Strickland standard. There is simply no reasonable probability that, but for the failure of Petitioner's trial counsel to present and argue any or all of the evidence Petitioner actually introduced during his Rule 32 hearing that the outcome of the punishment phase of Petitioner's capital murder would have been any different. Petitioner's Wiggins claim does not satisfy the prejudice prong of the Strickland standard.
In paragraphs 45 and 46 of his federal habeas corpus petition for the first time, Petitioner argues his trial counsel rendered ineffective assistance by failing to (1) request the assistance of an expert to (a) investigate the possibility that Petitioner was exposed to toxic chemicals in utero in the water supply at Camp Lejeune and (b) furnish testimony linking Petitioner's exposure to such chemicals with unidentified developmental problems and Petitioner's subsequent actions and (2) request the assistance of an expert to investigate and furnish testimony addressing (a) the fact Petitioner was shuttled as a young boy between two dysfunctional parents and was, at times functionally abandoned by both parents and (b) the effects of those experiences on Petitioner. Petitioner alleges no specific facts showing what potentially mitigating or otherwise beneficial evidence could have been discovered (and presented to the jury) at the time of Petitioner's November 1996 capital trial had his defense team made requests for the assistance of experts on the effects of in utero exposure or exposure as an infant to toxic chemicals in drinking water at Camp Lejeune or growing up in an unstable family environment.
As explained above, complaints about uncalled witnesses are disfavored because they tend to be highly speculative in nature. See Price v. Allen, 679 F.3d at 1325 (holding conclusory assertion that a mental health expert could have testified to a connection between the abuse the defendant suffered as a child and his subsequent actions failed to satisfy prejudice prong of the Strickland standard). Petitioner does not allege any specific facts showing that any evidence was reasonably available to Petitioner's trial counsel in November 1996 showing that Petitioner suffered any deleterious effects from exposure to alleged toxic chemicals in the drinking water at Camp Lejeune during the two years he resided there. Petitioner's mother testified at Petitioner's Rule 32 hearing that he grew up without exhibiting any drug, alcohol, or educational problems.
In short, Petitioner fails to clothe his naked assertion with any facts whatsoever, by now a familiar pattern. After independent, de novo review, there is no reasonable probability that, but for the failure of Petitioner's trial counsel to obtain expert investigations into either Petitioner's exposure to toxic chemicals at Camp Lejeune or the potentially negative impact on Petitioner of his parents' divorce and his subsequent transfers of custody between them, the outcome of the punishment phase of Petitioner's November 1996 capital murder trial would have been any different.
Attorney Goggans testified without contradiction during Petitioner's Rule 32 hearing that he was aware through his conversations with Petitioner that Petitioner was born at Camp Lejeune and his parents divorced not long after Petitioner's birth.
On the contrary, Petitioner has identified no information reasonably available to Petitioner's defense team at the time of Petitioner's 1996 capital murder trial suggesting that investigation into either of these two subjects might reasonably have led to the discovery of mitigating or otherwise beneficial evidence or information. All the evidence presented during Petitioner's Rule 32 hearing suggests that Petitioner's defense team was never alerted to any childhood medical, mental health, developmental, psychological, or other problems that might have been caused by Petitioner's exposure to toxic chemicals at Camp Lejeune or Petitioner's allegedly dysfunctional family. It is undisputed that Petitioner denied any history of medical or mental health problems.
Under these circumstances, and after de novo review of the entire record, Petitioner's complaints about his trial counsel's failure to seek expert investigations into Petitioner's exposure to toxic chemicals at Camp Lejeune and possible negative reaction to his parents' divorce (and his subsequent transfers of custody between his parents at ages two and nine or ten) fail to satisfy the first prong of the Strickland standard.
Upon independent, de novo review, Petitioner's complaints in paragraphs 45 and 46 about the performance of his trial counsel fail to satisfy either prong of the Strickland standard and do not warrant federal habeas corpus relief.
Petitioner argues in paragraphs 47 through 50 of his federal habeas corpus petition that his trial counsel (1) should have intensely cross-examined Garrison at trial regarding his account of the events at the crime scene on December 1, 1995, (2) argued that Garrison's trial testimony describing events at the crime scene were inaccurate, (3) mounted a "solid argument to exclude the evidence" of Julie Rhodes's suffering after Petitioner shot her — twice, and (4) sought a limiting jury instruction forbidding the jury from speculating on the level of her suffering.
This court addressed at great length the first of these four complaints in Section V.E. above. For the same reasons discussed at length above in Sections IV.D. and V.E., Petitioner's complaint that his trial counsel failed to adequately cross-examine prosecution witness Garrison fails to satisfy either prong of the Strickland standard. Petitioner's complaint that his trial counsel failed to argue adequately against Garrison's credibility fails for virtually identical reasons. For the reasons discussed in Section V.E. above, there is no reasonable probability that, but for the failure of Petitioner's trial counsel to argue against Garrison's credibility, the outcome of either phase of Petitioner's capital murder trial would have been any different.
Not previously addressed is Petitioner's argument that his trial counsel should have presented a "solid argument to exclude the evidence" of Julie Rhodes's suffering or requested a jury instruction limiting the jury's consideration of the evidence in the record showing she was conscious and aware of her impending fatality. Petitioner does not identify any legal authority to support his positions that the evidence showing Julie's suffering (such as the eyewitness testimony to her statements about her own condition shortly after the shooting, the heroic efforts taken by medical professionals to attempt to preserve her life, and the medical examiner's testimony concerning the scope of her injuries) was properly subject to an objection seeking to exclude same from evidence or a motion requesting an instruction limiting the jury's consideration of such evidence. As explained in Sections IV.D. and V.E. above, this court is aware of no legal authority supporting Petitioner's contentions.
There is no reasonable probability that but for the failures of Petitioner's trial counsel to attempt either to exclude the evidence of Julie's suffering or to seek an instruction limiting the jury's consideration of such evidence, the outcome of the punishment phase of Petitioner's capital murder trial would have been any different. Any such motion to exclude or request for a limiting jury instruction would have been futile and meritless. See Butts v. GDCP Warden, 850 F.3d 1201, 1204 (11th Cir. 2017) (failure of appellate counsel to raise a meritless claim did not prejudice defendant), cert. denied, 138 S.Ct. 925 (2018); As explained in Sections IV.D. and V.E. above, the evidence establishing the severe pain and anguish Julie Rhodes suffered in the hours immediately after Petitioner shot her — twice — was overwhelming and compelling. It was also clearly admissible and subject to full consideration by the jury at the punishment phase of Petitioner's capital murder trial in connection with the "especially heinous, atrocious, or cruel" aggravating factor. Petitioner has identified no legal basis for excluding this evidence or limiting the jury's consideration of this evidence when deliberating at the punishment phase of Petitioner's trial. Petitioner did not suffer "prejudice" within the meaning of the second prong of the Strickland standard by virtue of his trial counsel's failure to move to exclude (or to request an instruction limiting the jury's consideration of) evidence of Julie's Rhodes's suffering.
Upon de novo review, Petitioner's complaints in paragraphs 47 through 50 of his federal habeas corpus petition fail to satisfy either prong of the Strickland standard and do not warrant federal habeas corpus relief.
In paragraphs 51 through 57 of his federal habeas corpus petition, Petitioner argues that his trial counsel rendered ineffective assistance by (1) failing to object on unspecified grounds to the admission of a certified copy of a judgment reflecting Petitioner's Virginia armed robbery conviction, (2) encouraging the jury to believe Petitioner had been armed and committed the Virginia robbery, (3) failing to conduct any investigation into the circumstances of that offense, (4) failing to contact petitioner's former counsel in Virginia, (5) failing to read the witness statement of the Virginia robbery victim, Oscar Cervantes, (6) failing to seek and read the records from Petitioner's robbery, trial, and confession, (7) failing to question anyone about whether Petitioner had been the gunman during the robbery, (8) failing to present evidence showing petitioner was a mere "decoy" or "lure" for a robbery actually committed by Petitioner's older brother and another older individual, (9) failing to ask about the facts of the Virginia robbery case before agreeing to stipulate to Cervantes' testimony, (10) failing to call and cross-examine Cervantes regarding Petitioner's "minor role" in the Virginia robbery, (11) failing to examine "the Virginia files," and (12) failing to present expert testimony regarding the malfunction of the murder weapon.
As above, de novo review of the record from Petitioner's Rule 32 hearing is required. Upon such review, it is painfully obvious that Petitioner's arguments are naive at best and disingenuous at worst. Here are the reasons — repetitious, but repeated for purposes of de novo review — in admittedly agonizing detail:
The uncontradicted, sworn testimony of attorney Goggans establishes that attorney Goggans interviewed Petitioner and examined documents reflecting that Petitioner confessed, and pleaded guilty, to a charge of armed robbery in Virginia. Petitioner has failed to allege any facts showing there was any arguable legal basis to exclude evidence of Petitioner's Virginia conviction from the jury's consideration at the punishment phase of Petitioner's capital murder trial. Attorney Goggans also testified, again without contradiction, that he was well aware that Petitioner had not been the gunman during the robbery in Virginia. Attorney Goggans did not view that fact, standing alone as significantly diminishing Petitioner's moral blameworthiness because, under Alabama law, one who aids and abets is as guilty as a principal. Attorney Goggans also testified without contradiction that, after interviewing the victim of the Virginia armed robbery, he did not want the victim to testify in front of Petitioner's jury because the victim was prepared to identify Petitioner as a participant in a robbery that attorney Goggans believed had involved some degree of planning, and testimony highlighting the frightening circumstances the victim experienced during the Virginia robbery would only serve to remind the jury that Petitioner's fatal shooting of Julie Rhodes had taken place during a robbery. For these reasons, attorney Goggans testified that he preferred to have a copy of the judgment of conviction admitted into evidence, rather than to have the jury watch a live witness identify Petitioner as one of the men who robbed him.
After careful de novo review, there is no fault in attorney Goggans' strategic decision-making, including his decision to stipulate to the admission of Petitioner's judgment of conviction from Virginia, rather than to have the prosecution call Oscar Cervantes to testify live before the jury; that decision was objectively reasonable. Petitioner alleges no specific facts, much less presents any affidavits or properly authenticated documents, showing there was any information contained in any of the records reasonably available to Petitioner's trial counsel in November 1996 showing that the victim of Petitioner's Virginia robbery could furnish any mitigating testimony beyond the fact that Petitioner had not actually held a gun during the Virginia robbery.
For a number of reasons, this court independently concludes that it was objectively reasonable for Petitioner's trial counsel to avoid presenting testimony and argument emphasizing the fact Petitioner had not held a gun during the Virginia robbery. First, the efficacy of Petitioner's proposed argument at Petitioner's November 1996 capital murder trial was dubious at best. An argument by Petitioner's trial counsel suggesting Petitioner was somehow less morally culpable than his accomplices in the Virginia robbery (because Petitioner did not hold a gun during that robbery) would not logically have reduced Petitioner's moral blameworthiness or culpability in connection with Petitioner's subsequent fatal shooting of Julie Rhodes.
Second, after discussing the Virginia robbery with Petitioner, reading documentation concerning the offense, and talking with the victim of the Petitioner's prior offense, attorney Goggans concluded the Virginia robbery had involved a degree of planning. Thus, attorney Goggans could have reasonably believed that, regardless of whether Petitioner held a gun during the Virginia robbery, presenting the jury with the details of the Virginia robbery would show that Petitioner's prior offense in Virginia involved a degree of planning and Petitioner's involvement in the Virginia robbery went beyond that of a typical accomplice in other types of robberies, i.e., that Petitioner's role as "lure" or "decoy" in the Virginia robbery was substantial and significant. Attorney Goggans could reasonably have believed that evidence showing Petitioner served as the "lure" or "decoy" in the Virginia robbery could have been viewed by the jury as indicating a level of deviousness on Petitioner's part.
Third, Petitioner's trial counsel could reasonably have foreseen that advancing a jury argument premised upon a showing that Petitioner did not carry a gun during the Virginia robbery could prove harmful to Petitioner. The prosecution could have responded by pointing out that Petitioner did not carry a gun during the Virginia robbery (where the victim walked away from the robbery alive) and contrasting the outcome of that offense with the Petitioner's capital offense (in which Petitioner carried a gun and the victim died a torturous, painful death). The prosecution could have responded to Petitioner's evidence showing that he did not carry a gun during his Virginia robbery by arguing this fact permitted a reasonable inference that Petitioner fatally shot Julie Rhodes — twice — for the very purpose of preventing her from ever testifying against Petitioner.
Furthermore, and after independent de novo review, Petitioner's complaints in paragraphs 51 through 57 fail to satisfy the prejudice prong of the Strickland standard. The burden to prove prejudice requires the petitioner to show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U. S. at 694. Petitioner complains that attorney Goggans failed to (1) contact Petitioner's Virginia defense counsel, (2) read all of the available documentation concerning Petitioner's confession, trial, and conviction, (3) read Oscar Cervantes' witness statement, and (4) examine unidentified information in "the Virginia files." Yet Petitioner alleges no specific facts showing what potentially helpful information attorney Goggans would have gleaned from these sources above and beyond the information about Petitioner's Virginia offense that he had already actually obtained from interviewing Petitioner, interviewing Oscar Cervantes face-to-face, and reviewing the records concerning Petitioner's Virginia offense found in the prosecution's case file. Petitioner presented the state court and presents this court with no affidavit from Petitioner's former Virginia defense counsel (detailing any undiscovered information about Petitioner's Virginia offense); no affidavit from Oscar Cervantes (explaining what testimony helpful to Petitioner he could have given at Petitioner's November 1996 capital murder trial); or no properly authenticated documents reasonably available in November 1996 showing that attorney Goggans could have discovered any new or different information concerning Petitioner's Virginia offense through additional investigation.
Conclusory and speculative assertions such as those contained in paragraphs 51 through 57 of Petitioner's federal habeas corpus petition do not satisfy the prejudice prong of the Strickland standard. See Price v. Allen, 679 F.3d at 1325 (holding conclusory assertion that a mental health expert could have testified to a connection between the abuse the defendant suffered as a child and his subsequent actions failed to satisfy prejudice prong of the Strickland standard). Cf. Bennett v. Fortner, 863 F.2d 804, 809 (11th Cir. 1989) (holding petitioner who attempted to circumvent a finding of procedural default with a showing that his trial counsel was ineffective in failing to procure a psychiatric examination of the defendant failed to show "actual prejudice" where Petitioner did not present the federal habeas court with copies of the medical records the petitioner claimed would have justified the psychiatric examination). There is no reasonable probability that, but for the failure of Petitioner's trial counsel to call Oscar Cervantes to testify at trial or to cross-examine Cervantes if called by the prosecution, the outcome of the punishment phase of Petitioner's capital murder trial would have been any different.
For the reasons discussed at length above in Section V.D., Petitioner's complaint in paragraph 57 of his federal habeas corpus petition about his trial counsel's failure to present evidence showing the murder weapon malfunctioned at the time Petitioner fatally shot Julie Rhodes — twice — fails to satisfy either prong of the Strickland standard.
Upon de novo review, Petitioner's complaints in paragraphs 51 through 57 of his federal habeas corpus petition fail to satisfy either prong of the Strickland standard and do not warrant federal habeas corpus relief.
Petitioner argues in paragraphs 58 through 63 of his federal habeas petition that his trial counsel rendered ineffective assistance by failing to raise a timely Batson challenge to the prosecution's use of peremptory strikes against two of the three black males in the jury venire.
The state trial court summarily dismissed this claim in its Order issued January 6, 2003, holding that Petitioner's ineffective assistance claim failed to allege sufficient facts to entitle him to relief and Petitioner's recitation of the number of black members of the jury venire struck by the prosecution, without more, was insufficient to establish a prima facie case of racial discrimination in violation of the Supreme Court's holding in Batson.
In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court extended the equal protection principle barring the purposeful exclusion of Blacks from criminal jury service to the prosecution's use of peremptory challenges during petit jury selection. See Batson v. Kentucky, 476 U. S. at 89 ("the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant."). Batson provides a three-step process for a trial court to use in adjudicating a claim that a peremptory challenge was based on race: first, the defendant must make out a prima facie case of discriminatory jury selection by the totality of the relevant facts concerning a prosecutor's conduct during the defendant's own trial; second, once the defendant makes the prima facie showing, the burden shifts to the State to come forward with a race-neutral explanation for challenging jurors within the arguably targeted class; finally, the trial court must determine if the defendant established purposeful discrimination by the prosecution. Foster v. Chatman, 136 S.Ct. 1737, 1747 (2016); Snyder v. Louisiana, 552 U.S. 472, 476-77 (2008); Miller-El v. Dretke, 545 U.S. 231, 239 (2005); Batson v. Kentucky, 476 U. S. at 94-98.
The state trial court's and state appellate court's summary dismissal of this ineffective assistance claim (as inadequately pleaded) in the course of Petitioner's Rule 32 proceeding constituted a rejection of that claim on the merits. Dismissal of a claim for failure to satisfy Alabama Rule of Criminal Procedure 32.6(b) constitutes a ruling on the merits, which does not give rise to a procedural default or foreclose federal habeas review of a federal constitutional claim. See Frazier v. Bouchard, 661 F.3d at 524-26 (holding dismissal of ineffective assistance claim for failure to allege sufficient facts was a ruling on the merits of the Strickland claim and did not procedurally default or otherwise bar federal habeas review of the claim); Borden v. Allen, 646 F.3d at 815-16 ("an Alabama court's consideration of the sufficiency of the pleadings concerning a federal constitutional claim contained in a Rule 32 petition necessarily entails a determination on the merits of the underlying claim; we cannot construe such a rule to be a state procedural bar that would preclude our review"); Powell v. Allen, 602 F.3d at 1272-73 (Alabama court's summary dismissal of federal constitutional claims under Rule 32.6(b) should be reviewed as a holding on the merits).
The only fact alleged in Petitioner's Rule 32 petition in support of his ineffective assistance claim premised upon a potential Batson violation was that the prosecution struck two of six black members of Petitioner's jury venire.
It is well settled that numbers alone are insufficient to establish a prima facie case of racial discrimination in jury selection; the defendant must make a prima facie case by showing the totality of the relevant facts gives rise to an inference of discriminatory purpose. See, e.g., United States v. Hill, 643 F.3d 807, 838-40 (11th Cir. 2011) (the prima facie case determination is not to be based on numbers but is to be made in light of the totality of the circumstances (citing Johnson v. California, 545 U.S. 162, 168 (2005)), cert. denied, 566 U.S. 970 (2012). "[A] defendant satisfies the requirements of Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." Johnson v. California, 545 U. S. at 170.
Among the factors the Eleventh Circuit has instructed reviewing courts to consider in determining whether a prima facie Batson claim has been established are 1) whether members of the relevant racial or ethnic group served unchallenged on the jury, (2) whether the striker struck all of the relevant racial or ethnic group from the venire, or at least as many as the striker had strikes, (3) whether there is a substantial disparity between the percentage of jurors of a particular race or ethnicity struck and the percentage of their representation on the venire, and (4) whether there is a substantial disparity between the percentage of jurors of one race or ethnicity struck and the percentage of their representation on the jury. United States v. Ochoa-Vasquez, 428 F.3d 1015, 1044-47 (11th Cir. 2005), cert. denied, 549 U.S. 952 (2006). Consideration of these purely statistical factors does not support a finding of a prima facie Batson claim here. First, three of the six black members of the Petitioner's jury venire actually served on his jury. Second, the prosecution struck only two of the six black members of the jury venire despite exercising twenty-one peremptory strikes. Third, the percentage of black jurors (3/12 or 25%) was actually higher than the percentage of black venire members on the panel (6/54 or 11%). Finally, the percentage of black jurors (3/12 or 25%) was higher than the percentage of the black venire members struck peremptorily (3/42 or 7%).
In view of the foregoing discussion and legal authorities, Petitioner's trial counsel could reasonably have concluded that asserting a Batson challenge based on the prosecution's use of only two of its twenty-one peremptory strikes against black members of the jury venire would, in light of the manner in which the prosecutor conducted himself during voir dire, likely be insufficient to establish a prima facie case under Batson. Petitioner alleged no facts in his Rule 32 petition showing there was anything suspicious or racially insensitive about the manner in which the prosecutor questioned the panels of the jury venire the parties examined during voir dire. Petitioner alleged no facts in his Rule 32 petition suggesting the district attorney's office prosecuting Petitioner's capital murder charge had a demonstrated history of racial discrimination in jury selection. Likewise, there was no allegation in Petitioner's Rule 32 petition that Petitioner's offense was in any way racially motivated or tinged with any hint of racially discriminatory motive that would have made the offense racially sensitive.
The prosecution had the means (twenty-one available peremptory strikes) to strike all or a majority of the black venire members from the Petitioner's petit jury but chose instead to exercise only two of its peremptory strikes against any of the six black venire members. Petitioner's trial counsel could reasonably have believed the prosecutor's exercise of just two of the prosecution's twenty-one peremptory strikes against the six black members of the jury venire, in the absence of any other demonstrated indication of racially discriminatory motivation on the part of the prosecution, would be insufficient to establish a prima facie case under Batson. Trial counsel are not required to make futile or meritless objections or motions. See Knowles v. Mirzayance, 556 U. S. at 125 (defense counsel is not required to assert a defense he is almost certain will lose); Pinkney v. Sec'y, DOC, 876 F.3d at 1297 ("an attorney will not be held to have performed deficiently for failing to perform a futile act, one that would not have gotten his client any relief"); Bates v. Sec'y, Fla. Dep't of Corr., 768 F.3d at 1299 (holding "a lawyer is not ineffective for failing to raise a meritless argument"); United States v. Curbelo, 726 F.3d 1260, 1267 (11th Cir. 2013) ("it goes without saying that counsel is not ineffective for failing to file a meritless suppression motion"), cert. denied, 571 U.S. 1150 (2014).
Given the dearth of factual allegations suggesting the prosecution behaved in a racially discriminatory manner during jury selection, the state trial court and state appellate court reasonably concluded during Petitioner's Rule 32 proceeding that Petitioner's conclusory complaint about his trial counsel's failure to raise a timely Batson objection failed to satisfy the first prong of the Strickland standard.
For similar reasons, the state trial court and state appellate court reasonably concluded Petitioner's complaint about his trial counsel's failure to raise a timely Batson challenge failed to satisfy the prejudice prong of the Strickland standard. The state trial and appellate courts reasonably concluded there was no reasonable probability that, but for the failure of Petitioner's trial counsel to assert a timely Batson challenge, the outcome of either phase of Petitioner's capital murder trial would have been any different, because there was no such failure. See Green v. Georgia, 882 F.3d 978, 987 (11th Cir. 2018) (counsel's failure to make a futile objection did not prejudice defendant within the meaning of Strickland). Petitioner's bare assertion in his Rule 32 petition that the prosecution used two of its peremptory strikes against six of the black members of his jury venire was unaccompanied by any other factual allegations suggesting a racially discriminatory motivation on the part of the prosecution during jury selection.
The state trial and appellate courts reasonably concluded Petitioner's conclusory complaint about the prosecution striking two unidentified black venire members failed to establish a prima facie case under Batson. More importantly, in so holding, the state trial court and state appellate court also reasonably concluded Petitioner's ineffective assistance complaint failed to satisfy the prejudice prong of the Strickland standard.
The state trial and state appellate courts' rejection on the merits during Petitioner's Rule 32 proceeding of Petitioner's conclusory ineffective assistance complaint about his trial counsel's failure to raise a timely Batson objection was neither contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial and Rule 32 proceedings.
In his federal habeas corpus petition, for the very first time, Petitioner argues additional facts he failed to present to the state courts in support of his complaint about his trial counsel's failure to raise a timely Batson challenge. Specifically, Petitioner alleges that (1) two venire members the prosecution struck peremptorily were black males who had demographic characteristics (age and occupation) similar to three unidentified white male venire members against whom the prosecution did not exercise peremptory strikes, (2) these three unidentified white males later served on Petitioner's jury,
For reasons similar to those discussed at length above in Section V.J.4.a., after de novo review, even in light of Petitioner's new factual allegations, it was objectively reasonable for Petitioner's trial counsel not to raise a Batson challenge to the prosecution's use of two of its twenty-one available peremptory strikes against black members of the Petitioner's jury venire.
Petitioner's conclusory allegations of alleged similarities between the demographic characteristics of three unidentified white members of his jury and the two black members of the jury venire whom the prosecution struck peremptorily might arguably have had some relevance to the third step in the Batson analysis, i.e., determining the credibility of a prosecutor's proffered race-neutral justification for exercising a peremptory strike against a particular venire member. But a prima facie case has to be made first and here, there is none.
Upon de novo review, there is no reasonable probability that, but for the failure of Petitioner's trial counsel to raise a timely Batson challenge, the outcome of either phase of Petitioner's capital murder trial would have been any different. As were true of Petitioner's factual allegations in his Rule 32 petition, Petitioner has failed to allege any specific facts in this court showing a reasonable probability that, even if Petitioner's trial counsel had raised a timely Batson challenge, Petitioner's trial counsel could have established a prima facie case of racial discrimination by the prosecution in the use of peremptory challenges. Under these circumstances, Petitioner's cryptic new factual allegations in his federal habeas corpus petition supporting his complaint about his trial counsel's failure to assert a timely Batson challenge fail to satisfy either prong of the Strickland standard. Paragraphs 58 through 63 of Petitioner's federal habeas corpus petition do not warrant federal habeas corpus relief and potentially violate Rule 11(b)(1), (b)(2), & (b)(3), Fed.R.Civ.P.
Petitioner argues in paragraphs 64 through 67 of his federal habeas corpus petition that his trial counsel should have raised a timely objection pursuant to the Supreme Court's holding in J.E.B. v. Alabama, 511 U.S. 127 (1994), to the prosecutor's exercise of sixteen of the prosecution's peremptory challenges against female members of the jury venire.
Petitioner argued in his Rule 32 petition that his trial counsel rendered ineffective assistance by failing to object to the prosecution's gender discrimination in its use of peremptory challenges, and failing to argue the prosecution's use of sixteen of its twenty-one (and twelve of its first thirteen) peremptory challenges against women constituted a prima facie case of gender discrimination.
In J.E.B. v. Alabama, a case arising from an Alabama paternity and child support lawsuit, the Supreme Court extended its holding in Batson to forbid gender discrimination in the exercise of peremptory challenges by a state actor. See J.E.B. v. Alabama, 511 U. S. at 130-31 ("Intentional discrimination on the basis of gender by state actors violates the Equal Protection Clause, particularly where, as here, the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women.").
J.E.B. v. Alabama, 511 U. S. at 139 (citation omitted). "As with race-based Batson claims, a party alleging gender discrimination must make a prima facie showing of intentional discrimination before the party exercising the challenge is required to explain the basis for the strike." Id., 511 U. S. at 144-45.
A party making a J.E.B. challenge bears the burden of proving a prima facie case of gender discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. Trawick v. Allen, 520 F.3d 1264, 1266 (11th Cir.), cert. denied, 555 U.S. 1033 (2008). When a federal habeas petition asserts a claim of ineffective assistance of counsel, AEDPA review is "doubly deferential," because counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Woods v. Etherton, 136 S.Ct. 1149, 1151 (2016); Burt v. Titlow, 571 U.S. 12, 22 (2013) (quoting Strickland v. Washington, 466 U. S. at 690).
For reasons similar to those discussed in detail above in Section V.J.4.a., Petitioner's trial counsel could have reasonably concluded that a timely objection to alleged prosecutorial gender discrimination in connection with the use of peremptory challenges would be a futile act. Petitioner did not allege any facts in his Rule 32 petition showing (1) a suspicious pattern of prosecution strikes against female members of the jury venire,
Examination of the matters identified by the Eleventh Circuit in United States v. Ochoa-Vasquez, discussed above, is far from compelling. Five females actually served on Petitioner's jury, including three black females. The prosecution used sixteen of its twenty-one peremptory strikes against female members of Petitioner's jury venire but did not strike any of the five female jury venire members who later served on Petitioner's jury (i.e., venire members 139, 170, 185, 195, 206) or any of the eight female members of the jury venire peremptorily struck by the defense (i.e., venire members 54, 77, 85, 87, 90, 114, 179, 203). The percentage of females on Petitioner's jury venire (29/54 or about 54%) was higher than the percentage of females on Petitioner's jury (5/12 or about 43%) but not significantly so. Sixty nine percent of the total peremptory strikes used by both parties (29/42) removed female members of the jury venire and only forty-three percent of the Petitioner's jury (5/12) was female. Ultimately, however, Petitioner's jury was only one female shy of being equally balanced between male and female. More importantly, Petitioner alleged no facts in his Rule 32 petition suggesting there was any basis other than statistics to urge a claim of gender discrimination by the prosecution during jury selection. Statistical evidence is merely one factor which the court examines in evaluating a Batson claim and it is not necessarily dispositive. Cochran v. Herring, 43 F.3d 1404, 1412 (11th Cir. 1995), modified on denial of rehearing, 61 F.3d 20 (11th Cir. 1995), cert. denied, 516 U.S. 1073 (1996).
The state courts reasonably concluded Petitioner's trial counsel could have believed a timely J.E.B. challenge based solely upon statistical information would be insufficient to establish a prima facie case of gender discrimination by the prosecution in jury selection. Counsel are not required to undertake actions they reasonably believe would be futile. See Knowles v. Mirzayance, 556 U. S. at 125 (defense counsel is not required to assert a defense he is almost certain will lose); Pinkney v. Sec'y, DOC, 876 F.3d at 1297 ("an attorney will not be held to have performed deficiently for failing to perform a futile act, one that would not have gotten his client any relief"); Bates v. Sec'y, Fla. Dep't of Corr., 768 F.3d at 1299 (holding "a lawyer is not ineffective for failing to raise a meritless argument"); United States v. Curbelo, 726 F.3d at 1267 ("it goes without saying that counsel is not ineffective for failing to file a meritless suppression motion"). The state trial and appellate courts reasonably concluded Petitioner's complaint about his trial counsel's failure to assert a timely J.E.B. objection to the prosecution's use of its peremptory challenges to strike female members of the jury venire failed to satisfy the deficient performance prong of the Strickland standard.
For reasons similar to those discussed above in Section V.J.3.b., the state trial court and state appellate court reasonably concluded the Petitioner's complaint about his trial counsel's failure to assert a timely J.E.B. objection to the prosecution's use of peremptory challenges to strike female members of Petitioner's jury venire failed to satisfy the prejudice prong of the Strickland standard. In his Rule 32 proceeding Petitioner presented the state trial court and state appellate court with no facts to support his J.E.B.-based ineffective assistance complaint, beyond the number of female venire members peremptorily struck by the prosecution. As explained above, purely statistical arguments complaining a party's use of peremptory challenges disproportionately impacted venire members of one race or gender are problematic, at best. The state trial court and state appellate court reasonably concluded there was no reasonable probability that, but for the failure of Petitioner's trial counsel to make a timely J.E.B. objection to the prosecution's use of its peremptory strikes to remove sixteen white females (the same race and gender as Julie Rhodes) from the jury pool, the outcome of either phase of Petitioner's capital murder trial would have been any different.
The state trial and state appellate courts' rejection on the merits during Petitioner's Rule 32 proceeding of Petitioner's conclusory ineffective assistance complaint about his trial counsel's failure to raise a timely J.E.B. objection was neither contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial and Rule 32 proceedings.
In his federal habeas corpus petition, for the very first time Petitioner argues additional facts he failed to present to the state courts in support of his complaint about his trial counsel's failure to raise a timely J.E.B. objection. More specifically, Petitioner alleges (1) the prosecution used 76% (16/21) of its peremptory challenges against female members of the jury venire, (2) most of the female venire members struck by the prosecution were demographically indistinguishable (except for their gender) from the men in the jury venire, (3) four of the female venire members struck by the prosecution worked or had worked for the same employer as eleven of the men in the jury venire,
For very practical reasons, even under a de novo standard of review, this court's evaluation of the performance of Petitioner's trial counsel must be deferential. Like the trial judge, Petitioner's trial counsel had the opportunity to observe first-hand the demeanor exhibited by the prosecutor while he questioned Petitioner's jury venire and to see how the prosecutor interacted with both female and male members of the jury venire during jury selection. This court's review of the dry record from Petitioner's voir dire furnishes little guidance as to the many subtle nuances of interpersonal communication, such as the prosecutor's facial expression, body language, and tone of voice, to which Petitioner's trial counsel was a witness. Thus, in evaluating the objective reasonableness of the decision by Petitioner's trial counsel not to raise a timely J.E.B. objection, this court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Woods v. Daniel, 135 S.Ct. 1372, 1375 (2015) (quoting Strickland v. Washington, 466 U. S. at 689). The burden to show counsel's performance was deficient rests squarely on the Petitioner. Burt v. Titlow, 571 U.S. 12, 22-23 (2013) (citing Strickland v. Washington, 466 U. S. at 687).
The prosecution used sixteen of its twenty-one peremptory strikes to remove approximately fifty-five percent (16/29) of the female venire members. Still, five women served as jurors at Petitioner's capital murder trial. The unchallenged presence of jurors of a particular gender on a jury substantially weakens the basis for a prima facie case of discrimination in the peremptory striking of jurors of that gender. Trawick v. Allen, 520 F.3d at 1269; Central Alabama Fair Housing Center, Inc. v. Lowder Realty Co., Inc., 236 F.3d 629, 638 (11th Cir. 2000). While the ultimate composition of the jury does not nullify the possibility of gender discrimination, it is a significant factor in the highly deferential review federal appellate courts afford federal district courts that have addressed Equal Protection challenges to the use of peremptory challenges. United States v. Tokars, 95 F.3d 1520, 1534 (11th Cir. 1996), cert. denied, 520 U.S. 1151 (1997).
Petitioner has alleged no facts suggesting the prosecution questioned female members of the jury venire in a manner different from the way the prosecution questioned males on the jury venire. Nor has Petitioner alleged any facts showing a history of racial or gender discrimination within the office of the district attorney that prosecuted Petitioner. Petitioner's jury was only one female shy of being equally balanced between men and women. The difference between the percentage of women on Petitioner's jury venire (54%) and the percentage of women on Petitioner's jury (43%) was not a substantial disparity. Not every petit jury will identically reflect the gender composition of the jury venire from which it was selected. All sixteen of the prosecution's peremptory challenges against female members of Petitioner's jury venire removed potential jurors who shared their gender and race with the victim of Petitioner's capital offense.
For the foregoing reasons, as well as the reasons set forth above in Section V.K.4., this court independently concludes after de novo review that Petitioner's ineffective assistance complaint about his trial counsel's failure to assert a timely J.E.B. objection fails to satisfy either prong of the Strickland standard. Petitioner's trial counsel could have reasonably concluded a timely J.E.B. objection supported by only the conclusory facts contained in Petitioner's federal habeas corpus petition was unlikely to prevail or even satisfy the requirements for a prima facie showing of discriminatory intent by the prosecution. There was nothing objectively unreasonable with the decision by Petitioner's trial counsel not to raise a timely J.E.B. objection. Furthermore, this court concludes there is no reasonable probability that, but for the failure of Petitioner's trial counsel to make a timely J.E.B. objection, the outcome of either phase of Petitioner's capital murder trial would have been any different.
Petitioner's additional factual allegations in his federal habeas corpus petition do not warrant a different result than that reached by the state trial and appellate courts that reviewed Petitioner's abridged version of this same ineffective assistance claim in the course of Petitioner's Rule 32 proceeding. Paragraphs 64 through 67 of Petitioner's federal habeas corpus petition do not warrant federal habeas corpus relief.
Petitioner argues in paragraphs 68 through 69 of his federal habeas corpus petition that his jury venire failed to adequately represent a "fair cross-section of the community," i.e., that the fifty-four venire members remaining after the trial court granted the venire members' requests for excuses from jury service and ruled on the parties' challenges for cause "did not reflect the demographic realities of Tallapoosa County."
Petitioner argued in his Rule 32 petition that his trial counsel rendered ineffective assistance by failing to (1) challenge the racial composition of the 54-member jury pool from which his petit jury was selected (11% black) as under-representative of the black population of Tallapoosa County (36% black) and (2) move the trial court to examine the jury selection process to determine if there existed a prima facie case for race discrimination in the Tallapoosa County jury pool selection process.
"The Sixth Amendment secures to criminal defendants the right to be tried by an impartial jury drawn from sources reflecting a fair cross-section of the community." Berghuis v. Smith, 559 U.S. 314, 319 (2010) (citing Taylor v. Louisiana, 419 U.S. 522, 527-28 (1974)). To make out a prima facie violation of the Sixth Amendment's fair cross-section requirement, a criminal defendant must show that (1) the group alleged to be excluded is a "distinctive" group in the community; (2) the representation of this group in venires from which the juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) this under-representation is due to systematic exclusion of the group in the jury-selection process. Berghuis v. Smith, 559 U. S. at 319 (citing Duren v. Missouri, 439 U.S. 357, 364 (1979).
The Supreme Court has also long held that the Equal Protection Clause of the Fourteenth Amendment prohibits racial discrimination by the State in jury selection. Miller-El v. Dretke, 545 U.S. 231, 238 (2005); Strauder v. West Virginia, 100 U.S. 303, 308-09 (1880). In order to establish a prima facie case for an equal protection violation in the context of jury selection, the defendant must show (1) an identifiable group constituting a recognizable, distinct class, has been singled out for different treatment under the laws, as written or as applied; (2) the group has been substantially under-represented on jury venires over a significant period of time; and (3) there has been purposeful discrimination against the under-represented group, which is established by a showing that the selection procedure for jurors is susceptible of abuse or not racially neutral. Castaneda v. Partida, 430 U.S. 482, 494 (1977).
The state trial court and state appellate court both reasonably concluded Petitioner's ineffective assistance claim failed to satisfy either prong of the Strickland standard. Both state courts correctly ruled that Petitioner alleged no facts showing that there has ever been under-representation of black venire members in Tallapoosa County in any case other than his own, any systematic exclusion of black citizens from Tallapoosa County jury venires was responsible for the under-representation of black citizens on his jury venire, or the system employed in Tallapoosa County to draw potential jurors into jury pools was not race-neutral or was susceptible to abuse as a tool of discrimination. See United States v. Davis, 854 F.3d 1276, 1295-96 (11th Cir.) (recognizing the prima facie tests for fair cross-section and equal protection claims are "virtually identical," and holding, in the context of jury selection, that a fair cross-section claim must be supported by a showing of systemic exclusion of the under-represented group, and an equal protection claim must be supported by a showing the jury venire was selected under a practice providing an opportunity for discrimination), cert. denied, 138 S.Ct. 379 (2017). Petitioner alleged no facts before the state courts in his Rule 32 proceeding showing the under-representation of black citizens on his jury venire was the product of systemic exclusion of black citizens from Tallapoosa County jury venires, or the system employed in Tallapoosa County to select potential jurors for jury pools was either susceptible to abuse as a tool of discrimination or otherwise not race-neutral.
Petitioner also failed to allege any specific facts showing there has ever been any under-representation of black citizens on Tallapoosa County jury venires other than his own. Thus, Petitioner failed to allege any facts in his Rule 32 proceeding showing there has been a substantial under-representation of black citizens on Tallapoosa County jury wheels over a significant period of time. See Castaneda v. Partida, 430 U. S. at 494-95 (evidence showed significant under-representation of Mexican-Americans on jury venires over an eleven-year period). Where a defendant relies exclusively on under-representation of an identifiable group on his own jury venire, the defendant must also identify something about the jury selection wheel that was subject to abuse.
Finally, Petitioner alleged no facts showing there was anything erroneous or discriminatory (much less systemically exclusionary) in the way the state trial court ruled on the requests by members of Petitioner's 215-member initial jury venire to be excused from jury service or in the way the trial court ruled on the parties' respective challenges for cause. Under those circumstances, the proper focus of any fair cross-section or equal protection challenge to Petitioner's jury venire should have been on the entire jury pool of 215 venire members called to serve as potential jurors at Petitioner's trial (the qualified jury wheel), not just the 54 venire members who remained after the exercise of challenges for cause and the trial court's rulings on requests to be excused.
Petitioner's trial counsel could reasonably have concluded that there was no basis for arguing that a substantial under-representation of black citizens on jury venires had taken place in Tallapoosa County over a significant period of time; that there was nothing about Tallapoosa County's system for calling potential jurors that was subject to abuse or discriminatory manipulation; and that there had been no systemic exclusion of black citizens from Tallapoosa County jury venires. Likewise, the state trial court and state appellate court reasonably concluded during Petitioner's Rule 32 proceeding that Petitioner had failed to allege any facts showing a reasonable probability that, but for Petitioner's trial counsel's failure to assert fair cross-section or equal protection challenges to the composition of Petitioner's jury venire, the outcome of either phase of Petitioner's capital murder trial would have been any different. Simply put, the state trial and appellate courts both reasonably concluded any fair cross-section or equal protection challenge to the racial composition of Petitioner's jury venire would be futile. See Green v. Georgia, 882 F.3d at 987 (counsel's failure to raise futile challenge to state criminal statute did not prejudice the defendant). Accordingly, the state trial and appellate courts reasonably concluded Petitioner's complaints about his trial counsel's failure to assert fair cross-section or equal protection challenges to the composition of Petitioner's jury venire failed to satisfy either prong of the Strickland standard.
The state trial and state appellate courts' rejection on the merits during Petitioner's Rule 32 proceeding of Petitioner's ineffective assistance complaint about his trial counsel's failure to raise fair-cross-section and equal protection challenges to the racial composition of Petitioner's jury venire was not contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial and Rule 32 proceedings. Paragraphs 68-69 of Petitioner's federal habeas corpus petition do not warrant federal habeas relief.
Petitioner argues in paragraphs 70 through 73 of his federal habeas corpus petition that his trial counsel rendered ineffective assistance by failing to present any mitigating evidence at the punishment phase of trial other than Petitioner's birth certificate, arguing that Petitioner's age (18) at the time of the capital offense was a mitigating circumstance (thereby inviting the prosecution to reply by pointing out Julie Rhodes was only nineteen years old when she was murdered), failing to object when the prosecution argued in reply that, while Petitioner was only eighteen and facing, at best, the prospect of a sentence of life without parole, Julie Rhodes was only nineteen years old when she died and had no chance to live beyond that age, and failing to object to the prosecution's argument calling Petitioner "a bad guy."
As explained at length above in Section V.G.3.b., Petitioner's trial counsel pointed to an enlarged copy of Petitioner's birth certificate and argued at the punishment phase of trial that the jury should consider Petitioner's relative youth (age eighteen at the time of his crime) as a mitigating factors when weighing the mitigating and aggravating factors and making its sentencing recommendation (which he urged should be life without parole).
Petitioner complained in his Rule 32 petition about his trial counsel's failure to object when the prosecution noted, in response to Petitioner's closing argument, that Julie Rhodes was only nineteen when she was murdered.
Petitioner also complained in his Rule 32 petition about his trial counsel's failure to object when the prosecution allegedly "mocked" Petitioner and "essentially fabricated evidence" by suggesting Petitioner was a "bad guy."
As explained at length above in Section IV.I.3., both Alabama and federal courts generally recognize four areas of jury argument as proper: (1) summation of the evidence; (2) inferences reasonably drawn from the evidence; (3) replies or answers to opposing counsel's argument; and (4) pleas for law enforcement and justice.
The state trial and appellate courts reasonably concluded the decision by Petitioner's trial counsel not to object to the prosecution's rebuttal argument that Julie Rhodes was only nineteen at the time of her murder was objectively reasonable because the prosecution's rebuttal argument was proper under state law and did not prejudice Petitioner.
There was nothing objectively unreasonable in the decision by Petitioner's trial counsel not to object to the prosecution's rebuttal argument. Petitioner's trial counsel clearly invited this reply by emphasizing in his own punishment phase closing argument Petitioner's age at the time of the capital offense. The prosecution's rebuttal argument was a wholly appropriate response to Petitioner's trial counsel's closing punishment phase jury argument.
Likewise, the state appellate court reasonably concluded Petitioner was not "prejudiced" within the meaning of Strickland by the failure of Petitioner's trial counsel to object to the prosecution's rebuttal jury argument. The Alabama Court of Criminal Appeals' conclusion that the prosecution's rebuttal argument did not rise to the level of reversible error under state law also binds this federal habeas court. Bradshaw v. Richey, 546 U.S. at 76; Loggins v. Thomas, 654 F.3d at 1228. Because the prosecution's rebuttal argument did not constitute reversible error under applicable state law, the failure of Petitioner's trial counsel to object did not "prejudice" Petitioner within the meaning of the Strickland standard. See Pinkney v. Sec'y, DOC, 876 F.3d at 1297 ("an attorney will not be held to have performed deficiently for failing to perform a futile act, one that would not have gotten his client any relief"); Bates v. Sec'y, Fla. Dep't of Corr., 768 F.3d at 1299 (holding "a lawyer is not ineffective for failing to raise a meritless argument").
The state trial and state appellate courts' rejection on the merits during Petitioner's Rule 32 proceeding of Petitioner's ineffective assistance complaint about his trial counsel's failure to object to the prosecution's rebuttal jury argument at the punishment phase of trial noting Julie Rhodes's age at the time of her murder (and comparing same to Petitioner's age) was neither contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial and Rule 32 proceedings. Paragraphs 70 through 73 of Petitioner's federal habeas corpus petition do not warrant federal habeas corpus relief.
Petitioner also complained in his Rule 32 petition about his trial counsel's failure to object to the prosecution's jury argument suggesting the Petitioner carried and brandished a weapon and behaved in a manner intended to create the impression he was "a bad guy." Petitioner repeats this cryptic complaint in a footnote in his federal habeas corpus petition.
Furthermore, having independently reviewed the entire record from the guilt-innocence phase of Petitioner's capital murder trial, the state trial court and state appellate court both reasonably concluded there was no legitimate basis for an objection to the prosecutorial argument in question. All of the prosecutorial jury argument identified by Petitioner in his Rule 32 petition as allegedly objectionable consisted of little more than either accurate summations of, or reasonable inferences drawn from, the evidence presented at the guilt innocence phase of Petitioner's capital murder trial. The state trial and appellate courts reasonably concluded that this ineffective assistance complaint failed to satisfy either prong of the Strickland standard. See Pinkney v. Sec'y, DOC, 876 F.3d at 1297 ("an attorney will not be held to have performed deficiently for failing to perform a futile act, one that would not have gotten his client any relief"); Bates v. Sec'y, Fla. Dep't of Corr., 768 F.3d at 1299 (holding "a lawyer is not ineffective for failing to raise a meritless argument"). The evidence of Petitioner's guilt was overwhelming. The prosecutorial jury argument in question merely summarized or drew reasonable inferences from the extensive evidence of Petitioner's conduct on December 1, 1995 and the days that followed.
The state trial and state appellate courts' rejection on the merits during Petitioner's Rule 32 proceeding of Petitioner's ineffective assistance complaint about his trial counsel's failure to object to the prosecution's guilt-innocence phase jury argument suggesting Petitioner was "a bad guy" was neither contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial and Rule 32 proceedings. Paragraphs 70 through 73 of Petitioner's federal habeas corpus petition do not warrant federal habeas corpus relief.
Petitioner argues in his federal habeas corpus petition for the first time that his trial counsel rendered ineffective assistance by emphasizing at the punishment phase of trial Petitioner's age as a mitigating circumstance: "Why he thought that such an approach might win their sympathy when the victim was his nearly exact contemporary is not known."
During Petitioner's Rule 32 hearing, attorney Goggans testified without contradiction that he believed Petitioner's youth was the biggest mitigating factor in Petitioner's favor and he argued in his closing punishment phase jury argument that the jury should consider Petitioner's youth and lack of life experience, and resulting lack of judgment, when recommending sentence.
Having independently reviewed the entire record from Petitioner's capital murder trial, it was objectively reasonable for Petitioner's trial counsel to present evidence of Petitioner's age and to make the foregoing closing jury argument at the punishment phase of Petitioner's trial. It was objectively reasonable for Petitioner's trial counsel to present evidence and argument in support of a statutory mitigating circumstance applicable to his client. The jury could have reasonably concluded the Petitioner's capital offense reflected an extremely poor level of judgment, a level of judgment understandable in a person barely old enough to be legally an adult. Moreover, after de novo review, there is no reasonable probability that, but for Petitioner's trial counsel presenting evidence of Petitioner's age and arguing Petitioner's youth must be considered as a mitigating circumstance, the outcome of the punishment phase of Petitioner's capital murder trial would have been any different.
Petitioner's trial counsel reasonably concluded that emphasizing Petitioner's youth, and accompanying lack of experience and good judgment, was the strongest approach available likely to secure a life sentence for Petitioner. When viewed in the light of the evidence of Petitioner's gang involvement and history of drug trafficking that Petitioner's own father and others knowledgeable of Petitioner's background could have furnished the jury, the strategic decision by Petitioner's trial counsel to rely on Petitioner's youth in mitigation of Petitioner's moral blameworthiness was objectively reasonable and did not "prejudice" Petitioner within the meaning of the Strickland standard. The argument contained in paragraph 71 of Petitioner's federal habeas corpus petition does not warrant federal habeas corpus relief.
Petitioner complains in paragraphs 74 through 101 of his federal habeas corpus petition that his trial counsel rendered ineffective assistance by failing to object to erroneous punishment-phase jury instructions, specifically to: the trial court's erroneous instruction that the jury could not consider a mitigating circumstance unless it was "reasonably satisfied" the circumstance had been established;
As explained above in Section IV.C.2., the standard for reviewing the propriety of jury instructions at the punishment phase of a capital murder trial is "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Boyde v. California, 494 U. S. at 380.
During its instructions to the jury at the punishment phase of trial, the state trial court advised the jury without objection at various points as follows:
Petitioner argued in his Rule 32 petition that his trial counsel rendered ineffective assistance by failing to object when the trial court instructed the jury at the punishment phase of trial that it should only consider those mitigating circumstances which the jury was "reasonably satisfied" had been established by the evidence.
During Petitioner's Rule 32 proceeding, the state trial court concluded in its Order issued January 6, 2003 that the punishment phase jury instructions were erroneous insofar as they suggested the defendant bore the burden of proof on establishing the existence of any mitigating circumstance but that the error was harmless, in part because the prosecution proved two aggravating factors, i.e., the fact Petitioner's capital offense occurred during the course of a robbery and the heinous, atrocious, or cruel nature of Petitioner's offense, while the mitigating evidence put forth by the defense was "minimal."
As explained at length above in Section IV.C.3.a., there was no genuine factual dispute at the punishment phase of Petitioner's capital murder trial over the existence of mitigating circumstances showing that Petitioner was only eighteen years old at the time of the offense, others were involved in the same offense, and one of Petitioner's co-defendants had received a sentence of life imprisonment with the possibility of parole. The trial court expressly instructed the jury it could consider each of those mitigating factors.
Despite its erroneous description of the burden of proof applicable to mitigating circumstances, the trial court's punishment phase jury instructions correctly advised the jury to consider anything the defense presented in mitigation and to weigh the mitigating circumstances against the aggravating circumstances the prosecution had established beyond a reasonable doubt. Under these circumstances, there is no reasonable likelihood that the jury applied the erroneous punishment phase jury instructions in a way that prevented the jury's consideration of constitutionally relevant evidence. Boyde v. California, 494 U. S. at 380. For the reasons discussed at length above in Section IV.C.3.a., the state trial and appellate courts both reasonably concluded this ineffective assistance complaint failed to satisfy the "prejudice" prong of the Strickland standard.
The state trial and state appellate courts' rejection on the merits during Petitioner's Rule 32 proceeding of Petitioner's ineffective assistance complaint about his trial counsel's failure to object to the trial court's erroneous punishment phase jury instructions regarding the burden of proof applicable to mitigating circumstances was neither contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial and Rule 32 proceedings. Paragraphs 75 through 81 of Petitioner's federal habeas corpus petition do not warrant federal habeas corpus relief.
At the punishment phase of Petitioner's capital murder trial, the trial court instructed the jury without objection as follows:
Petitioner argued in his Rule 32 petition that the trial court's punishment phase jury instructions failed to advise the jury that the applicable Alabama statute
The state trial court's and state appellate court's determination during Petitioner's Rule 32 proceeding that the trial court's punishment phase jury instructions were not erroneous under applicable state law (for failing to instruct the jury expressly on what to do if the mitigating and aggravating circumstances were equally balanced) binds this federal habeas court. Bradshaw v. Richey, 546 U. S. at 76; Loggins v. Thomas, 654 F.3d at 1228. Given the absence of any error in this aspect of the Petitioner's punishment phase jury instructions, the failure of Petitioner's trial counsel to make an objection of the type now urged by Petitioner does not satisfy either prong of the Strickland standard. See Green v. Georgia, 882 F.3d at 987 (counsel's failure to make a futile objection did not prejudice defendant within the meaning of Strickland); Pinkney v. Sec'y, DOC, 876 F.3d at 1297 ("an attorney will not be held to have performed deficiently for failing to perform a futile act, one that would not have gotten his client any relief"); Bates v. Sec'y, Fla. Dep't of Corr., 768 F.3d at 1299 (holding "a lawyer is not ineffective for failing to raise a meritless argument").
The state trial and state appellate courts' rejection on the merits during Petitioner's Rule 32 proceeding of Petitioner's ineffective assistance complaint about his trial counsel's failure to object to the trial court's failure to instruct the jury expressly on what to do if the mitigating and aggravating circumstances were equally balanced was neither contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial and Rule 32 proceedings. Paragraphs 82 through 85 of Petitioner's federal habeas corpus petition do not warrant federal habeas corpus relief.
As explained at length above in Section IV.C.1, the trial court erroneously instructed the jury at the punishment phase of trial that it had to unanimously agree on what mitigating circumstances existed before it could consider particular mitigating circumstances. Petitioner's trial counsel timely objected to the error and requested the trial court issue a corrective instruction. The prosecutor agreed with Petitioner's trial counsel on the need to correct the trial court's erroneous instruction. The trial court attempted to correct its earlier instruction but Petitioner's trial counsel requested additional clarification. The trial court concluded its instructions to the jury by informing them "Mitigating doesn't have to be unanimous."
Petitioner complained in his Rule 32 petition that the trial court's punishment phase jury instruction erroneously required the jury to unanimously agree on particular mitigating circumstances before considering and weighing those circumstances against the aggravating circumstances.
As explained at length above in Section IV.C.1., Petitioner's trial counsel timely objected to the trial court's erroneous punishment phase jury instruction advising the jury that it had to unanimously agree on what particular evidence constituted mitigating circumstances before it could weigh those mitigating circumstances against the aggravating circumstances. The prosecution agreed with defense counsel that the trial court's instruction was erroneous and joined in the request for a curative jury instruction. When the trial court's ensuing instruction failed to properly cure the earlier error, Petitioner's trial counsel requested an even more specific curative instruction and the trial court informed the jury "Let me just make it clear: Mitigating doesn't have to be unanimous."
Petitioner complains for the first time in his federal habeas corpus petition that his trial counsel rendered ineffective assistance by failing to request even further curative instructions from the trial court, arguing the trial court's curative instructions were ambiguous and insufficient to cure the Mills error. Petitioner does not, however, explain in any rational manner what additional curative instructions his trial counsel should have requested.
As this court explained at length above in Section IV.C.3.b., while admittedly less than pristine, the state trial court's remedial instructions were sufficient to alert the jury to the fact the jury need not unanimously agree upon a particular mitigating circumstance before weighing that mitigating circumstance against the aggravating circumstances established by the evidence. "In evaluating the instructions, we do not engage in a technical parsing of this language of the instructions, but instead approach the instructions in the same way that the jury would—with a `commonsense understanding of the instructions in the light of all that has taken place at the trial.'" Johnson v. Texas, 509 U. S. at 368; Boyde v. California, 494 U. S. at 381. Viewed in the context of the entire trial, the failure of Petitioner's trial counsel to request even further curative instructions was objectively reasonable.
Petitioner identifies no other mitigating circumstances properly before the jury at the punishment phase of his capital murder trial that he believes his jury was unable to consider adequately in light of the allegedly defective punishment phase jury instructions. Nor is there a reasonable likelihood the jury applied the challenged instruction in a way that prevented the jury's consideration of constitutionally relevant evidence. Boyde v. California, 494 U. S. at 380. Under these circumstances, there is no reasonable probability that, but for the failure of Petitioner's trial counsel to request an unspecified additional curative instruction addressing the trial court's Mills error, the outcome of the punishment phase of Petitioner's capital murder trial would have been any different.
After independent, de novo review, Petitioner's conclusory complaint about his trial counsel's failure to request unspecified additional curative instructions to correct the trial court's Mills error satisfies neither prong of the Strickland standard. Paragraphs 86 through 95 of Petitioner's federal habeas corpus petition do not warrant federal habeas corpus relief.
During the charge conference at the punishment phase of Petitioner's capital murder trial, the following exchanges took place:
Petitioner complained in his Rule 32 petition about his trial counsel's failure to object to the trial court's insistence on amending the defense's proposed jury charge defining life without parole and argued his trial counsel should have accepted the trial court's proposed additional language rather than to withdraw the definition entirely.
On appeal from the denial of Petitioner's Rule 32 petition, the Alabama Court of Criminal Appeals concluded that (1) both the proposed definition of "life without parole" requested by the Petitioner and the modified version of that definition proposed by the trial court were erroneous under applicable state law; (2) Petitioner's trial counsel was not ineffective for failing to object to the trial court's refusal to give a legally erroneous definition of "life without parole"; and (3) because both Petitioner's trial counsel and the trial court emphasized during the punishment phase of trial that a term of life imprisonment without the possibility of parole meant life without parole, it was objectively reasonable for Petitioner's trial counsel not to request a legally erroneous version of the definition of "life without parole."
Petitioner's reliance on the Supreme Court's holding in Simmons v. South Carolina, 512 U.S. 154 (1994), in support of his contention that his trial counsel's proposed definition of "life without parole" was constitutionally mandated, is misplaced. In Simmons, a plurality of the Supreme Court, with three judges concurring separately, held that a defendant had been unconstitutionally sentenced to death in a trial in which the capital sentencing jury was not informed that, under applicable state law, a term of life imprisonment meant a term of life imprisonment without the possibility of parole:
Simmons v. South Carolina, 512 U. S. at 162 (footnote omitted).
In sharp contrast to the facts in Simmons, the Petitioner's trial court in its punishment phase jury instructions repeatedly made clear that the sentencing options available to Petitioner's jurors were death and a term of life imprisonment without the possibility of parole.
The state appellate court's holding in Petitioner's Rule 32 proceeding that both of the definitions of "life without parole" requested by Petitioner's trial counsel and proposed by the state trial court were legally erroneous under applicable Alabama law binds this court in this federal habeas corpus proceeding. Bradshaw v. Richey, 546 U.S. at 76; Loggins v. Thomas, 654 F.3d at 1228. The failure of Petitioner's trial counsel to object to the trial court's refusal to give a legally erroneous definition of "life without parole" and the failure of Petitioner's trial counsel to agree to the state trial court's equally legally erroneous definition of "life without parole" did not cause the performance of Petitioner's trial counsel to fall below an objective level of reasonableness and did not "prejudice" Petitioner within the meaning of the Strickland standard. See Green v. Georgia, 882 F.3d at 987 (counsel's failure to make a futile objection did not prejudice defendant within the meaning of Strickland); Pinkney v. Sec'y, DOC, 876 F.3d at 1297 ("an attorney will not be held to have performed deficiently for failing to perform a futile act, one that would not have gotten his client any relief"); Bates v. Sec'y, Fla. Dep't of Corr., 768 F.3d at 1299 (holding "a lawyer is not ineffective for failing to raise a meritless argument").
The state appellate court reasonably concluded in the course of Petitioner's Rule 32 proceeding that Petitioner's complaints about his trial court's conduct vis-a-vis both the defense's proposed definition of "life without parole" and the state trial court's proposed definition of "life without parole" failed to satisfy either prong of the Strickland standard. Petitioner's trial counsel cannot reasonably be faulted for either failing to continue to urge a legally erroneous definition of "life without parole" or refusing to agree to the state trial court's submission of an equally legally erroneous definition of the same term. The state appellate court reasonably concluded there was no reasonable probability that, but for the failure of Petitioner's trial counsel to insist on the submission of a legally erroneous definition of "life without parole," the outcome of the punishment phase of Petitioner's capital murder trial would have been any different.
The state trial and state appellate courts' rejection on the merits during Petitioner's Rule 32 proceeding of Petitioner's ineffective assistance complaint about his trial counsel's failures to object to the trial court's refusal to give Petitioner's proposed definition of "life without parole" and to agree to the trial court's proposed definition of "life without parole" was neither contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial and Rule 32 proceedings. Paragraphs 96 through 101 of Petitioner's federal habeas corpus petition do not warrant federal habeas corpus relief.
Petitioner argues in paragraphs 102-03 of his federal habeas corpus petition that his state appellate counsel rendered ineffective assistance in violation of his Sixth Amendment right to counsel by failing to raise grounds for relief on direct appeal challenging the prosecution's improper use of its peremptory challenges to discriminate against members of the jury venire based upon their race and gender.
Petitioner argued in his Rule 32 petition that his state appellate counsel rendered ineffective assistance by failing to present grounds for relief on direct appeal complaining about a host of alleged errors committed by the trial court, as well as the prosecution's abuse of its peremptory challenges to discriminate against both black and female members of the Petitioner's jury venire.
The same two-pronged standard for evaluating ineffective assistance claims against trial counsel announced in Strickland applies to complaints about the performance of counsel on appeal. See Smith v. Robbins, 528 U.S. 259, 285 (2000) (holding a petitioner arguing ineffective assistance by his appellate counsel must establish both his appellate counsel's performance was objectively unreasonable and there is a reasonable probability that, but for appellate counsel's objectively unreasonable conduct, the petitioner would have prevailed on appeal); Raleigh v. Sec'y, Fla. Dep't of Corr., 827 F.3d 938, 957 (11th Cir. 2016) ("The Strickland standard for ineffective assistance of counsel governs claims of ineffective assistance of appellate counsel."), cert. denied, 137 S.Ct. 2160 (2017). Thus, the standard for evaluating the performance of counsel on appeal requires inquiry into whether appellate counsel's performance was deficient, i.e., whether appellate counsel's conduct was objectively unreasonable under then-current legal standards, and whether appellate counsel's allegedly deficient performance "prejudiced" petitioner, i.e., whether there is a reasonable probability that, but for appellate counsel's deficient performance, the outcome of petitioner's appeal would have been different. Smith v. Robbins, 528 U. S. at 285; Hittson v. GDCP Warden, 759 F.3d 1210, 1262 (11th Cir. 2014), cert. denied, 135 S.Ct. 2126 (2015). Appellate counsel who files a merits brief need not and should not raise every non-frivolous claim but, rather, may select from among them in order to maximize the likelihood of success on appeal. Smith v. Robbins, 528 U. S. at 288; Jones v. Barnes, 463 U.S. 745, 751 (1983). The process of winnowing out weaker arguments on appeal and focusing on those more likely to prevail is the hallmark of effective appellate advocacy. Smith v. Murray, 477 U.S. 527, 536 (1986); Jones v. Barnes, 463 U. S. at 751-52.
Where, as in Petitioner's case, appellate counsel presented, briefed, and argued, albeit unsuccessfully, one or more non-frivolous grounds for relief on appeal and did not seek to withdraw from representation without filing an adequate Anders brief, the defendant must satisfy both prongs of the Strickland test in connection with his claims of ineffective assistance by his appellate counsel. See Roe v. Flores-Ortega, 528 U.S. 470, 477, 482 (2000) (holding the dual prongs of Strickland apply to complaints of ineffective appellate counsel and recognizing, in cases involving "attorney error," the defendant must show prejudice); Smith v. Robbins, 528 U. S. at 287-89 (holding petitioner who argued his appellate counsel rendered ineffective assistance by failing to file a merits brief must satisfy both prongs of Strickland).
For the reasons discussed at length above in Sections V.J. and V.K., the state trial court and state appellate court reasonably concluded it was objectively reasonable for Petitioner's state appellate counsel not to include Batson and J.E.B. claims as part of Petitioner's direct appeal from his capital murder conviction and sentence of death. To reiterate, this court concludes, just as did the state trial and appellate courts in the course of Petitioner's Rule 32 proceeding, that Petitioner's state appellate counsel, just like Petitioner's trial counsel, could reasonably have believed there was insufficient evidence to satisfy the requirements for prima facie showings of racial and gender discrimination by the prosecutor during jury selection. Appellate counsel are not required to present every non-frivolous claim available. See Overstreet v. Warden, 811 F.3d 1283, 1287 (11th Cir. 2016) ("Appellate counsel has no duty to raise every non-frivolous issue and may reasonably weed out weaker (albeit meritorious) arguments."); Brown v. United States, 720 F.3d 1316, 1335 (11th Cir. 2013) ("An attorney is not required under the Constitution or the Strickland standards to raise even non-frivolous issue on appeal." (citing Jones v. Barnes, 463 U. S. at 754)), cert. denied, 135 S.Ct. 48 (2014).
Moreover, because Petitioner's trial counsel chose not to raise timely objections predicated on Batson or J.E.B., the state appellate court's standard of review of those claims would necessarily have been circumscribed. See Ex parte Bohannon, 222 So.3d 525, 535 (Ala. 2016) (Because no objection was made at trial to trial court's failure to limit prosecution's questioning of defense character witness, review of the issue was for plain error and holding "plain error" means "error that is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings — the plain error standard applies only where a particularly egregious error occurred at trial and that error has or probably has substantially prejudiced the defendant), cert. denied, 137 S.Ct. 831 (2017); Gaddy v. State, 698 So.2d 1100, 1130 (Ala. Crim. App. 1995) (holding in the absence of any objection, a defendant's complaint that he was absent during a post-trial hearing must be analyzed under the plain error rule), aff'd, 698 So.2d 1150 (Ala. 1997), cert. denied, 522 U.S. 1032 (1997). Petitioner's state appellate counsel could reasonably have concluded that asserting Batson or J.E.B. claims on direct appeal was unlikely to garner success because the state appellate courts would necessarily review those claims under the deferential plain error standard.
Likewise, for the reasons discussed at length above in Sections V.J. and V.K., the state trial and appellate courts reasonably concluded these same ineffective assistance complaints about the performance of Petitioner's state appellate counsel failed to satisfy the prejudice prong of the Strickland standard: Petitioner alleged insufficient facts in his Rule 32 petition to establish a prima facie case of racial or gender discrimination. The state trial and appellate courts reasonably concluded during Petitioner's Rule 32 proceeding there was no reasonable probability that, but for the failure of Petitioner's state appellate counsel to assert Batson or J.E.B. claims on direct appeal, the outcome of Petitioner's direct appeal would have been any different.
The state trial and state appellate courts' rejection on the merits during Petitioner's Rule 32 proceeding of Petitioner's ineffective assistance complaints about his state appellate counsel's failure to present on direct appeal claims of racial and gender discrimination by the prosecution during jury selection was neither contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial and Rule 32 proceedings. Paragraphs 102 through 103 of Petitioner's federal habeas corpus petition do not warrant federal habeas corpus relief.
Petitioner requests an evidentiary hearing.
Where a petitioner's claims have been rejected on the merits, further factual development in federal court is effectively precluded by virtue of the Supreme Court's holding in Cullen v. Pinholster, 563 U.S. 170 181-82 (2011):
Thus, petitioner is not entitled to a federal evidentiary hearing on any of his claims which were rejected on the merits by the state courts, either on direct appeal or during Petitioner's Rule 32 proceeding.
With regard to the new factual allegations and new legal arguments Petitioner failed to fairly present to the state courts, and for which this court has undertaken de novo review, Petitioner is likewise not entitled to an evidentiary hearing. In the course of conducting de novo review, this court has assumed the factual accuracy of all the specific facts alleged by Petitioner in support of his claims for relief, including the factual accuracy of all the new potentially mitigating information Petitioner identified in his pleadings in this court in support of his multi-faceted ineffective assistance claims. As explained at length above in Section V, even when the truth of all of Petitioner's new factual allegations supporting his ineffective assistance claims is assumed, Petitioner's ineffective assistance claims still do not satisfy the prejudice prong of the Strickland standard.
Furthermore, as explained above, even assuming the truth of all the new factual allegations Petitioner presents in support of his federal habeas claims, after de novo review, none of Petitioner's claims warrant federal habeas corpus relief. In light of these assumptions, Petitioner is not entitled to an evidentiary hearing. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) ("In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief."); Jones v. Sec'y, Fla. Dep't of Corr., 834 F.3d 1299, 1318-19 (11th Cir. 2016) ("We emphasize that the burden is on the petitioner in a habeas corpus proceeding to allege sufficient facts to support the grant of an evidentiary hearing and that a federal court will not blindly accept speculative and inconcrete claims as the basis upon which a hearing will be ordered.") (quoting Dickson v. Wainwright, 683 F.2d 348, 351 (11th Cir. 1982)); Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011) (the burden is on the petitioner to establish the need for an evidentiary hearing), cert. denied, 565 U.S. 1120 (2012). If a habeas petition does not allege enough specific facts that, if they were true, would warrant relief, the petitioner is not entitled to an evidentiary hearing. Jones v. Sec'y, Fla. Dep't of Corr., 834 F.3d at 1319; Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d at 1060. Where a petitioner fails to allege sufficient facts to satisfy the prejudice prong of the Strickland standard, it is unnecessary to hold an evidentiary hearing to resolve disputed facts relating to the allegedly deficient performance of trial counsel. Bester v. Warden, 836 F.3d 1331, 1339-40 (11th Cir. 2016), cert. denied, 137 S.Ct. 819 (2017). For the reasons discussed at length above, Petitioner has failed to satisfy this standard.
While Petitioner does allege many new facts in support of his unexhausted ineffective assistance claims, Petitioner did not proffer any new evidence supporting those unexhausted claims. There is no need for an evidentiary hearing in federal court where a federal habeas petitioner fails to proffer any evidence he would seek to introduce at a hearing. See Chandler v. McDonough, 471 F.3d 1360, 1363 (11th Cir. 2006) (holding no evidentiary hearing necessary in federal habeas proceeding where the district court took as true the factual assertions underlying the ineffective assistance claim and the petitioner failed to proffer any additional evidence), cert. denied, 550 U.S. 943 (2007). "[I]f a habeas petition does not allege enough specific facts that, if they were true, would warrant relief, the petitioner is not entitled to an evidentiary hearing." Jones v. Sec'y, Fla. Dep't of Corr., 834 F.3d at 1319. "The allegations must be factual and specific; conclusory allegations are simply not enough to warrant a hearing." Id. "Moreover, a petitioner seeking an evidentiary hearing must make a `proffer to the district court of any evidence that he would seek to introduce at a hearing.'" Id. "A §2254 petitioner is not entitled to an evidentiary hearing if he fails to `proffer evidence that, if true, would entitle him to relief.'" Hamilton v. Sec'y, Fla. Dep't of Corr., 793 F.3d 1261, 1266 (11th Cir. 2015), cert. denied, 136 S.Ct. 1661 (2016). Because Petitioner failed to make a valid proffer of any new evidence in support of his unexhausted claims, he is not entitled to an evidentiary hearing to develop that evidence in this court.
Under the AEDPA, before a petitioner may appeal the denial of a habeas corpus petition filed under Section 2254, the petitioner must obtain a Certificate of Appealability ("CoA"). Miller-El v. Johnson, 537 U.S. 322, 335-36 (2003); 28 U.S.C. §2253(c) (2). A CoA is granted or denied on an issue-by-issue basis. Jones v. Sec'y, Fla. Dep't of Corr., 607 F.3d 1346, 1354 (11th Cir.) (no court may issue a CoA unless the applicant has made a substantial showing of the denial of a constitutional right and the CoA itself "shall indicate which specific issue or issues satisfy" that standard), cert. denied, 562 U.S. 1012 (2010); 28 U.S.C. §2253(c)(3).
A CoA will not be granted unless the petitioner makes a substantial showing of the denial of a constitutional right. Tennard v. Dretke, 542 U.S. 274, 282 (2004); Miller-El v. Johnson, 537 U. S. at 336; Slack v. McDaniel, 529 U.S. 473, 483 (2000); Barefoot v. Estelle, 463 U.S. 880, 893 (1983). To make such a showing, the petitioner need not show he will prevail on the merits but, rather, must demonstrate that reasonable jurists could debate whether (or, for that matter, agree) the petition should have been resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. Tennard v. Dretke, 542 U. S. at 282; Miller-El v. Johnson, 537 U. S. at 336. This court is required to issue or deny a CoA when it enters a final Order such as this one adverse to a federal habeas petitioner. Rule 11(a), Rules Governing Section 2254 Cases in the United States District Courts.
The showing necessary to obtain a CoA on a particular claim is dependent upon the manner in which the District Court has disposed of a claim. "[W]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy §2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Miller-El v. Johnson, 537 U. S. at 338 (quoting Slack v. McDaniel, 529 U. S. at 484). In a case in which the petitioner wishes to challenge on appeal this court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, the petitioner must show jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this court was correct in its procedural ruling. See Slack v. McDaniel, 529 U. S. at 484 (when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether the claim is a valid assertion of the denial of a constitutional right, and the district court's procedural ruling was correct).
Reasonable minds could not disagree with the conclusions that (1) during the course of Petitioner's Rule 32 proceeding the state courts reasonably rejected on the merits all of Petitioner's conclusory complaints about the performance of his trial counsel and state appellate counsel; (2) when reviewed under a de novo standard of review, all of Petitioner's new factual allegations supporting his ineffective assistance claims fail to satisfy the prejudice prong of the Strickland standard;
Accordingly, it is hereby
1. All relief requested in Petitioner's original federal habeas corpus petition (Doc. # 1), as supplemented by his briefs in support (Docs. # 45, 50, 57, 59), is
2. Petitioner's request for an evidentiary hearing
3. All other pending motions are
4. Petitioner is
5. By separate Show Cause Order, Petitioner's counsel will be directed to explain why sanctions should not be imposed in light of the potential violations of Rule 11, Fed.R.Civ.P., identified above in Petitioner's original petition.
Witness Wyckoff testified that Petitioner, Goodson, and two white males spent time at Wyckoff's apartment on the day in question. Goodson interrupted Wyckoff's sleep around 9:30-10 a.m. to say he was leaving. Petitioner was "messing" with his gun, which Petitioner carried in a holster, at Wyckoff's kitchen table, tapping the gun on the glass table top. When Wyckoff told Petitioner to put the gun away, Petitioner did so. Id., testimony of Rodney Wyckoff, 9 SCR 821-29.
A pair of eyewitnesses to the arrests of Petitioner and Kevin Hilburn testified at trial that when a law enforcement officer knocked on the front door of the residence where they were staying on December 3, 1995, Petitioner and Hilburn attempted to flee through the house and exit the rear of the house. Law enforcement officers arrested Hilburn outside the rear of the house and Petitioner inside the house. Id., testimony of Jeffery Lynn Avery, 10 SCR 1100-16; testimony of Lawrence Havis, 10 SCR 1116, 11 SCR 1117-21.
Law enforcement officers also testified regarding the circumstances of Petitioner's, Hilburn's, and Garrison's arrests during a pretrial hearing on Petitioner's motion to suppress held August 19, 1996. S.F. Trial, testimony of Sonny Riddle, 5 SCR 23-36, 51-66; testimony of L.C. Gill, 5 SCR 36-51, 92-116, 6 SCR 117-24; testimony of Phil Sims, 6 SCR 124-41.
The other paramedic testified that he observed entrance wounds in the victim's back, right lower chin, the latter of which appeared to have exited the lower side of the neck and entered the left shoulder and then exited the left shoulder. He observed an exit wound in the left lower abdominal area and an entrance wound in the left femur, and while en route to the hospital, the victim stated that she was dying — that she thought she was going to die. Id., testimony of Randall Wiggins, 8 SCR 590-93.
The surgeon at the hospital in Birmingham who treated the victim upon her arrival there testified without contradiction that the victim was undergoing CPR upon her arrival at the hospital. When she arrived, she had no pulse and her pupils were fixed and dilated, and she was pronounced dead four minutes after her arrival. Id., testimony of Diane Winters Richards, 8 SCR 643-47. The Birmingham emergency room physician who pronounced the victim dead testified she had lost her pulse and blood pressure shortly after takeoff. Id., testimony of Russell Wagner, 8 SCR 647-51.
The emergency room physician who treated the victim at the Alexander City hospital testified without contradiction that she suffered bullet wounds to the lower face, left side of her neck, left shoulder, right upper back, upper abdomen, and left thigh. In the emergency room, she was intubated, i.e., a chest tube was installed to drain blood, and several IV's were started to furnish fluids. She was then taken to surgery. Id., testimony of Allen Stinson, 8 SCR 594-98.
Julie's grandmother testified that Julie called her around 5:45 pm that evening. Julie arrived at her apartment around six pm for her dinner break. Julie left to return to work in her Silver Nissan at 6:30 pm. Id., testimony of Dora Catherine Rhodes, 8 SCR 530-32.
A woman who was driving into the same residential neighborhood toward her mother's home on the evening of December 1, 1995 testified that she heard two gunshots seconds apart — "not real fast together." When she arrived at her mother's home they saw dogs running loose down the street, barking like crazy, and minutes after she heard the gunshots, in the interval between the two gunshots, an ambulance arrived. Id., testimony of Jackie Mobley, 8 SCR 560-64.
The supervisor of the Alabama Bureau of Investigation's latent fingerprint unit testified that she received a large number of items for examination in connection with the case and she was able to identify two latent fingerprints lifted from the driver's side rear window of Julie Rhodes's Nissan to the right ring finger and right index finger of David Garrison. Id., testimony of Carol Curlee, 11 SCR 1166-73.
A forensic biologist with the Alabama Department of Forensic Sciences testified that there was insufficient blood contained in most of the blood samples taken from the interior of Julie Rhodes's vehicle and the location where she was discovered that were submitted to his office to permit DNA analysis of those samples and the samples that did contain sufficient blood were submitted to Deborah Dodd for analysis. Id., testimony of William Landrum, 11 SCR 1183-93.
A forensic scientist with the Alabama Department of Forensic Sciences testified that all of the blood samples submitted to her for analysis, including the samples taken from the seat belt recovered inside Julie Rhodes's vehicle, a white jacket, and eleven different locations near where Julie Rhodes was discovered bleeding, were from a female and matched the DNA of Julie Rhodes. Id., testimony of Deborah Dodd, 11 SCR 1195-1202.
Another Alexander City Police Detective testified that he discovered blood at several different locations on the roadway near the location where Julie Rhodes was found bleeding. He canvassed the neighborhood, and prepared a diagram of the area. Id., testimony of Randy Wynn Walters, 8 SCR 653-66.
Another acquaintance of petitioner named Jason Scott Mitchell testified that on the Saturday morning after the fatal shooting he returned home with John Wesley Marks to the apartment in Albertville Mitchell shared with Candace Talley and Nikisha Pieborn to find Petitioner, Garrison, Hilburn, Neysa Johnson, Janelle Jiggs, Tara Dean Hunter, Willie Havis, and Brian Hampton asleep inside the apartment. Petitioner took Mitchell outside and showed off his "new car" — a gold/brown Maxima with the driver's side window missing. Petitioner said he got the vehicle as is after putting down a down payment. Mitchell did not look at the car very hard. Petitioner then took Mitchell into a bathroom and showed Mitchell a black 9 mm pistol Petitioner said he had gotten from some friends. Mitchell, Petitioner, and Brian Hampton rode in the vehicle to Hampton's parents' home in Guntersville. Mitchell noticed nothing unusual during the drive. Later that same Saturday, as several people played cards in Mitchell's apartment, Petitioner sat on the couch and played with his gun — taking out the clip, removing the bullet, and then putting the clip back in the gun. Petitioner appeared to be fascinated with the gun. Meanwhile everyone else was scared. Talley and Pieborn asked Mitchell to ask Petitioner to put up the gun. When Mitchell asked Petitioner to put the gun in his car, Petitioner protested that it had no window. After additional discussion, Petitioner took the gun down and put it in the glove box of the car. Everyone in the apartment was talking about the incident the evening before in Alexander City. When Mitchell asked Petitioner about the incident in Alexander City, Petitioner began crying and said "Man, I didn't mean to do it, "I was trying to scare her," "I was shaking the gun in her face trying to get her out of the car so we could get back home and the gun went off," and "Jason, I swear to you I didn't mean to shoot the girl." Petitioner repeated that it was an accident but never explained to Mitchell how Petitioner ended up in Guntersville after "accidentally" shooting the girl in Alexander City. Petitioner did say that he was trying to find a way back to Guntersville. Petitioner and Mitchell later played basketball at a Rec Center. After basketball, Mitchell noticed bloodstains on the seat belt and front windshield of the car. Petitioner drove Mitchel home to Albertville on Sunday. Mitchell told Petitioner to get his gun and leave Mitchell's apartment. Id., testimony of Jason Scott Mitchell, 10 SCR 965-81.
Yet another acquaintance of Petitioner named Willie Havis testified that he saw Petitioner, Garrison, and Hilburn on the evening of November 30, 1995 at Candace Talley's apartment in Albertville in Hilburn's car. When Petitioner invited Havis to accompany them to Alexander City, Havis declined. He next saw Petitioner, Garrison, and Hilburn in a brown Maxima at the Pier. Petitioner told Havis "check out my car." Petitioner said he had been making payments on the car. Petitioner had a 9 mm in a case. The driver's side window in the car was broken. They all left the Pier and slept that night at Candace Talley's apartment. Saturday morning, Petitioner and Garrison left but then returned. At one point, Petitioner and Jason Mitchell went into the bathroom. Petitioner then went outside and came back in. In the afternoon, Petitioner polished his gun and bullets. On Sunday afternoon, Havis spoke with Garrison at Candace Talley's apartment. Havis last saw Petitioner on Sunday near midnight at a McDonalds. Havis went there with Neysha Hampton Dabbs and Brian Hampton to deliver Petitioner's clothes to him. Havis did not see the Maxima. Petitioner said that he was going to blow up the car or drop it in the river. Petitioner asked Brian Hampton to hide his gun for him. When Hampton said "no," Petitioner pointed the gun at Hampton and threatened to shoot him. Hampton hid the gun below the hill at his home. Id., testimony of Willie Havis, 10 SCR 1012-35.
Talley's roommate Nikisha Pieborn testified that she saw Petitioner, Garrison, and Hilburn in a Maxima on December 1, 1995 at a red light. The driver's side window had holes in it. There appeared to be three gunshot holes in the window. She later saw Petitioner and other two at the Kiwanis Pier. Hilburn did not spend the night at her apartment. On Saturday, Petitioner had a weapon — a black gun. Petitioner was cleaning the bullets, putting them back in, and then pointing the gun at people in the kitchen. She informed Petitioner that she was pregnant and asked him to put the gun away. Petitioner ignored her. She later left for her mother's home and did not return until Saturday evening. Petitioner, Garrison, and Hilburn were in an out of the apartment after she returned. Petitioner and Garrison were in and out of the apartment Sunday but not Hilburn. Id., testimony of Nikisha Pieborn, 10 SCR 945-55.
A roommate of Talley and Pieborn testified that she also saw Petitioner, Garrison, and Hilburn in a Nissan at a red light in Guntersville on December 1, 1995. There was a bullet hole in the Maxima's driver's side window and the remaining window glass was shattered. Petitioner and Garrison spent that night at the apartment she shared with Talley and Pieborn. The following morning, Saturday, she rode in the Maxima and again noticed the bullet hole in the window. Id., testimony of Tara Dean Hunter, 10 SCR 955-61.
An acquaintance of Petitioner testified that he saw Petitioner on Friday night of the weekend in question at a Chevron station in a vehicle with Garrison and Hilburn. Garrison said the car belonged to Petitioner. The vehicle had a front license plate with a big yellow smiley face and the name "Julie" on it. There was a bullet hole in the driver's window and bloodstains on the seat. Garrison said the blood came from them fighting. Saturday morning, he and Jason Mitchell arrived at Mitchell's apartment to find everyone except Petitioner asleep. Petitioner was strapping on his gun — putting on his holster. Id., testimony of John Wesley Marks, 10 SCR 981-97.
Another recent acquaintance of petitioner, who dated Petitioner for about a week, testified that she went to the Kiwanis Pier on December 1, 1995 where she saw Petitioner, Garrison, and Hilburn in a Nissan Maxima. The driver's side window in the Maxima was shattered and had a bullet hole in it. Petitioner said the car was theirs but he had put a down payment on it. Petitioner said he had been playing with his gun and it went off. Petitioner had the gun in his pants. Id., testimony of Neysa Hampton Dabbs, 10 SCR 998-1012.
A teenager who was present at the Kiwanis Pier on the night of December 1, 1995 testified that she saw Petitioner driving a light blue Maxima with the driver's side window shattered. Garrison and Hilburn were riding as passengers in the vehicle. She saw what appeared to be blood on the driver's side headrest and the back seat. Petitioner said it was his car. When she asked Petitioner about the gun in his lap, he said it was his. Id., testimony of Brooke Buchannon, 10 SCR 1036-42.
Smith v. Texas, 550 U.S. 297, 324 (2007) (Justice Alito, with Chief Justice Roberts and Justices Scalia and Thomas, dissenting). A Supreme Court majority employed this very approach in Lambrix v. Singletary, 520 U.S. 518, 520 (1997), where the Supreme Court held as follows:
The Eleventh Circuit has likewise approved the adjudication on the merits of arguably procedurally defaulted but meritless claims. See Jones v. Sec'y, Fla. Dep't of Corr., 834 F.3d 1299, 1318 (11th Cir. 2016) (federal habeas courts may deny writs of habeas corpus under § 2254 by engaging in de novo review when it is unclear whether AEDPA deference applies, because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review (citing 28 U.S.C. § 2254(a)), cert. denied, 137 S.Ct. 2245 (2017); Conner v. GDCP Warden, 784 F.3d 752, 767 & n.16 (11th Cir. 2015) ("[B]ecause we conclude that Mr. Conner would not be entitled to habeas relief under de novo review, we affirm the District Court's denial of relief under that standard without resolving whether AEDPA deference applies."), cert. denied, 136 S.Ct. 1246 (2016); Muhammad v. Sec'y, Fla. Dep't of Corr., 733 F.3d 1065, 1072-73 (11th Cir. 2013) ("The Supreme Court has explained that, when it appears that another issue is more `easily resolvable against the habeas petitioner, whereas the procedural-bar issue involves complicated issues of state law,' a federal court may avoid the procedural bar issue. Because the procedural bar involves a complicated issue of state law and this petition is more easily resolvable against Muhammad on the merits, we assume without deciding that the procedural bar is inadequate."), cert. denied, 571 U.S. 1117 (2014); Reese v. Sec'y, Fla. Dep't of Corr., 675 F.3d 1277, 1291 (11th Cir.) ("The Supreme Court has made clear that we are entitled to affirm the denial of habeas relief in this manner: `a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review.'"), cert. denied, 568 U.S. 905 (2012); Loggins v. Thomas, 654 F.3d 1204, 1215 (11th Cir. 2011) ("When relief is due to be denied even if claims are not procedurally barred, we can skip over the procedural bar issues, and we have done so in the past." (citing Valle v. Sec'y, Dep't of Corr., 459 F.3d 1206, 1213 (11th Cir. 2006), cert. denied, 552 U.S. 920 (2007)); Thompson v. Sec'y for Dep't of Corr., 517 F.3d 1279, 1283 (11th Cir. 2008) ("We may, however, deny Petitioner's petition for habeas relief on the merits regardless of his failure to exhaust the claim in state court."), cert. denied, 556 U.S. 1114 (2009); Henry v. Dep't of Corr., 197 F.3d 1361, 1366 n.2 (11th Cir. 1999) ("Judicial economy demands that federal courts attempt to avoid the inefficiency that would result from questioning the procedural dismissal of a facially meritless habeas corpus petition. Indeed, the exercise of this discretion is a practical manifestation of that portion of the Barefoot inquiry requiring that the issues raised in the petition be `adequate to deserve encouragement to proceed further.'" (citing Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983))).
Thus, this court is authorized to deny relief on unexhausted or procedurally defaulted claims (without first determining whether the claims are unexhausted or procedurally defaulted) when the claims in question lack merit under de novo review.
S.F. Trial, 12 SCR 1330-33.
This court is well aware that, the United States Circuit Courts have uniformly adopted the rule that a federal indictment is "multiplicitous" if it charges a single offense in more than one count and that a multiplicitous federal indictment violates Double Jeopardy principles. See, e.g., United States v. Davis, 854 F.3d 1276, 1286 (11th Cir.) ("A multiplicitous indictment `violates double jeopardy principles by giving the jury more than one opportunity to convict the defendant for the same offense.'"), cert. denied, 138 S.Ct. 379 (2017); United States v. Gonzalez, 834 F.3d 1206, 1219 (11th Cir. 2016) ("An indictment, therefore, violates the Double Jeopardy Clause if it is multiplicitous — that is, `if it charges a single offense in more than one count.'"); United States v. Woerner, 709 F.3d 527, 538-41 (5th Cir.) (recognizing two different species of "multiplicity," i.e., first when a criminal defendant is charged with violating two different statutes, one of which is arguably the lesser included offense of the other (wherein the Blockburger test of whether each offense requires proof of an element that the other does not applies); and second charges for multiple violations of the same statute predicated on arguably the same criminal conduct (wherein the court must ask whether separate and distinct prohibited acts, made punishable by law, have been committed)), cert. denied, 571 U.S. 859 (2013); United States v. Reagan, 596 F.3d 251, 253 (5th Cir. 2010) ("An indictment is multiplicitous if it charges a single offense in multiple counts, thus raising the potential for multiple punishment for the same offense, implicating the Fifth Amendment double jeopardy clause."); United States v. Chiaradio, 684 F.3d 265, 272 (1st Cir.) (holding (1) a prosecution is multiplicitous when the government charges a defendant twice for what is essentially a single crime, (2) determining whether an indictment is multiplicitous requires examination of whether a particular course of illegal conduct constitutes one or multiple offenses; and (3) legislative intent is paramount in resolving this issue), cert. denied, 568 U.S. 1004 (2012); United States v. Stefanidakis, 678 F.3d 96, 100-01 (1st Cir. 2012) (holding the defendant's prosecution, conviction, and sentencing for both possession and transportation of child pornography did not violate the Blockburger rule); United States v. Cacace, 796 F.3d 176, 186 n.6 (2nd Cir. 2015) (holding (1) multiple punishments are the constitutional harm to be avoided by the prohibition against multiplicitous indictments, (2) for double jeopardy to be implicated, the multiplicity must occur in a fashion that rise to the possibility of multiple punishments, and (3) where the alleged multiplicity appears not in separate counts but in separate racketeering predicate acts that are components of a single overall count of racketeering conspiracy, the danger imposed is an improper conviction based on legally insufficient evidence), cert. denied sub nom. Gioeli v. United States, 136 S.Ct. 856 (2016); United States v. Josephburg, 459 F.3d 350, 355 (2nd Cir. 2006) ("Where there has been no prior conviction or acquittal, the Double Jeopardy Clause does not protect against simultaneous prosecutions for the same offense, so long as no more than one punishment is eventually imposed."); United States v. Hodge, 870 F.3d 184, 193 (3rd Cir. 2017) ("multiplicity is the charging of a single offense in separate counts of the indictment. A multiplicitous indictment risks subjecting a defendant to multiple sentences for the same offense, an obvious violation of the Double Jeopardy Clause's protection against cumulative punishment." (quoting United States v. Kennedy, 682 F.3d 244, 254-55 (3rd Cir. 20012)); United States v. Pollen, 978 F.2d 78, 83 (3rd Cir. 1992) ("A multiplicitous indictment charges the same offense in two or more counts and may lead to multiple sentences for a single violation, a result prohibited by the Double Jeopardy Clause."), cert. denied, 508 U.S. 906 (1993); United States v. Shrader, 675 F.3d 300, 313 (4th Cir.) ("The rule against multiplicity is rooted in the Double Jeopardy Clause of the Fifth Amendment, which serves both the familiar function of prohibiting `successive prosecutions for the same offense' as well as `the imposition of cumulative punishments for the same offense in a single criminal trial.'"), cert. denied, 568 U.S. 1049 (2012); United States v. Goodine, 400 F.3d 202, 207 (4th Cir. 2005) ("the `signal danger' of a multiplicitous indictment is that a defendant might thereby receive multiple punishments for the same crime."); United States v. Vichitvongsa, 819 F.3d 260, 272-74 (6th Cir.) (reviewing and rejecting multiplicity claims that the evidence at trial showed but a single conspiracy to commit multiple violations of the Hobbs Act and drug trafficking offenses), cert. denied, 137 S.Ct. 79 (2016); United States v. Richards, 659 F.3d 527, 547 (6th Cir. 2011) ("`Generally, an indictment may not charge a single criminal offense in several counts without offending the rule against `multiplicity' and implicating the double jeopardy clause.' Where an indictment includes more than one count charging the same statutory violation, the question is whether Congress intended the facts underlying each count to constitute as separate unit of prosecution." (citations omitted)), cert. denied, 566 U.S. 1043 (2012); United States v. Ajayi, 808 F.3d 1113, 1123 (7th Cir. 2015) ("A multiplicitous indictment charges a single offense as separate counts. It exposes the `defendant to the threat of receiving multiple punishments for the same offense in violation of the Double Jeopardy Clause of the Fifth Amendment.'" (citation omitted)); United States v. Snyder, 189 F.3d 640, 646-47 (7th Cir. 1999) ("It is well settled that the government may not charge a single offense in several counts. The purpose of this rule is to prevent multiple punishments for the same act, in violation of the Double Jeopardy Clause of the Fifth Amendment." (citation omitted)), cert. denied, 528 U.S. 1097 (2000); United States v. Sandstrom, 594 F.3d 634, 651 (8th Cir.) ("A multiplicitous indictment is impermissible because the jury can convict the defendant on both counts, subjecting the defendant to two punishments for the same crime in violation of the double-jeopardy clause. . . ."), cert. denied, 562 U.S. 878 (2010); United States v. Hoover, 543 F.3d 448, 455-46 (8th Cir. 2008) (holding indictment was not multiplicitous where two counts charged the defendant with using a firearm in connection with a drug trafficking offense, resulting in the deaths of two different individuals); United States v. Teague, 722 F.3d 1187, 1190 (9th Cir. 2013) (holding that while the government could indict and prosecute defendant for both receipt and possession of child pornography, multiple punishments for both counts were impermissible because possession is a lesser included offense of receipt); United States v. Mancuso, 718 F.3d 780, 791 (9th Cir. 2013) ("An indictment is multiplicitous when it charges multiple counts for a single offense, producing two penalties for one crime and thus raising double jeopardy questions."); United States v. Benoit, 713 F.3d 1, 16 (10th Cir. 2013) ("`Multiplicity refers to multiple counts of an indictment which cover the same criminal behavior." The doctrine has no application in cases in which two counts are based on `two distinct sets of conduct.'"); United States v. Barrett, 496 F.3d 1079, 1095 (10th Cir. 2007) (although multiplicity is not fatal to an indictment, multiplicitous sentences violate the Double Jeopardy Clause), cert. denied, 552 U.S. 1260 (2008); United States v. Cooper, 886 F.3d 146, 149 (D.C. Cir. 2018) ("`Charging the same offense in more than one count' — `a problem known as multiplicity' — is `a defect in the indictment.'").
Petitioner does not identify any instance in which the United States Supreme Court has ever applied the rule against multiplicity in federal indictments to strike down a state capital murder conviction or death sentence where a capital murder defendant was charged with a single capital murder under multiple statutory theories. This court's independent research has likewise disclosed no such legal authority. As the authorities surveyed above make clear, the rule against multiplicity in federal indictments finds its genesis in the Double Jeopardy Clause's prohibition against multiple criminal punishments for the same offense. Because of the nature of the death penalty, a state court judgment purporting to impose multiple death sentences for a single capital murder conviction is necessarily a non sequitur. The constitutional principle underlying the rule against multiplicitous indictments has little efficacy in the context of capital sentencing. If a capital sentencing jury determines that a criminal defendant's offense satisfies a statutory theory of capital murder available under applicable state law, the defendant can be subjected to only one criminal punishment — either the application of a procedure ending in death or a term of life imprisonment. Hence, the Double Jeopardy principle underlying the doctrine against multiplicity in federal criminal indictments has no application to capital sentencing. As explained in detail below, nothing in the Fifth Amendment prohibits a state from prosecuting a criminal defendant under multiple theories of capital murder in a single trial.
The second problem with this portion of Petitioner's complaints in his Rule 32 petition is that Edward Peterman was not called as a defense witness by Petitioner's trial counsel. The prosecution called Mr. Peterman to testify and he stated under oath that (1) he purchased the murder weapon new from a gun dealer, (2) he had problems with the gun jamming the very first time he fired it, (3) the mechanism that pulls the bullet out of the chamber fell out of the weapon, (4) the clip that held the retainer on the side of the weapon would come loose and cause the weapon to jam, (5) the safety also had problems, i.e., it would move back and forth when the gun was fired, (6) he had no idea what happened to the gun since he traded it in back in 1992, (7) he told police he had never experienced any type of accidental discharge when using the weapon, (8) the gun was a single-action semi-automatic weapon and it was necessary to cock the gun the first time to shoot it, and (9) to fire the weapon twice you have to pull the trigger twice. S.F. Trial, Testimony of Edward Ross Peterman, 10 SCR 1091-1100. Petitioner's trial counsel cannot reasonably be faulted for calling Mr. Peterman to testify when, in fact, Peterman was a prosecution witness. Moreover, Petitioner alleged no facts and presented no evidence during his Rule 32 proceeding showing that Mr. Peterman could have offered any testimony beneficial to the defense had Petitioner's trial counsel asked different questions during cross-examination.
Saloom testified during cross-examination by Petitioner's trial counsel that he was able to unload the weapon by repeatedly pulling back on the slide to eject shells. S.F. Trial, testimony of Joe Saloom, 11 SCR 1214. Saloom did not testify that the gun misfired while he was attempting to do so. Petitioner alleged no facts and presents this court with no evidence in the form of affidavit from Saloom or any other expert or lay witness suggesting it was physically possible for the murder weapon to misfire, as opposed to jam, while being manually unloaded in the manner Saloom manually unloaded the weapon during his testing.
Other witnesses testified about the attempts of Petitioner and his companions to secure a ride back to Guntersville once they reached an apartment complex in Alexander City. Id., testimony of Gretchen Young, 9 SCR 803-11; testimony of Randy Jackson, 9 SCR 812-20; testimony of Rodney Wyckoff, 9 SCR 820-29; testimony of Marcus Billups, 9 SCR 829-35.
Still other witnesses testified they saw Petitioner and his companions attempting to flag down passing vehicles along the roadway to secure a ride, which efforts concluded when Petitioner and his companions entered Julie Rhodes' vehicle in a shopping center parking lot. S.F. Trial, testimony of Djuna K. Gates, 9 SCR 852-57; testimony of Christy Causey Meadows, 9 SCR 858-62; testimony of Laura Sharp, 9 SCR 863-65; testimony of Kelli Simpson, 9 SCR 866-72; testimony of Jason Sims, 9 SCR 872-77; testimony of Billy Tease, 9 SCR 877-82; testimony of Darrell Armour, 9 SCR 882-87; testimony of Angela Jones, 9 SCR 887-94; testimony of Ginny Jones, 9 SCR 894-99.
One of the eyewitnesses who saw Petitioner and his companions enter Julie's vehicle testified that Julie looked like something was wrong. S.F. Trial, testimony of Ginny Jones, 9 SCR 898.
Petitioner's accomplice Jonathan David Garrison testified without contradiction (1) that he, Petitioner, and Kevin Hilburn broke into and stole a car then drove toward Alexander City, (2) they totaled the stolen car near Sylacauga, (3) they then got a ride to the home of a person Petitioner knew where they unsuccessfully sought a ride, (4) they then walked to a store and bought Cokes, (5) they next got a ride into Alexander City from a black guy, (6) they then went to some guy's apartment, (7) later they got a ride to some road where they unsuccessfully attempted to flag down another ride, (8) finally a white couple in a black truck picked them up and took them to the Alexander City shopping center, where they watched the Christmas parade, (9) while they were looking for another ride, a gray Maxima drove up and petitioner spoke to the driver, (10) the female driver said she would give them a ride, (11) Petitioner instructed her to drive them to a residential neighborhood and told her to stop, and (12) Petitioner then pulled out his gun. S.F. Trial, testimony of Jonathan David Garrison, 11 SCR 1258-72.
Whatever the meager mitigating value the evidence Petitioner could have presented at the punishment phase of his November 1996 capital murder trial showing Petitioner earned a GED and had a record of (presumptively) good behavior in prison, that evidence would necessarily have been juxtaposed with the fact that such evidence would also have reminded the jury that, prior to his capital offense, Petitioner had been sentenced to prison for a serious criminal offense and spent enough time incarcerated to earn a GED. Thus, the evidence showing Petitioner had earned a GED and behaved well while incarcerated was clearly double-edged in nature.
Matthew 25:33-40 (New International Version).
Ms. Archie also testified that she abused drugs while pregnant with Petitioner. Id., 17 SCR 171-72. She did not testify, however, that she ever observed any behavior on the part of Petitioner suggesting that he suffered from fetal alcohol syndrome or fetal alcohol effects. Nor has Petitioner alleged any facts in this or any other court showing that he suffered from fetal alcohol syndrome or fetal alcohol effects.
Barksdale v. State, 788 So. 2d at 907-08 (citations omitted and emphasis added). Moreover, Petitioner's proposed new rule (which would make consideration of such evidence dependent upon the defendant's physical presence (or absence) from the victim's side) is a bizarre proposition.
As explained above, a state court's determination of a matter of state law binds a federal habeas court. See Bradshaw v. Richey, 546 U.S. at 76 ("We have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."). The Alabama Court of Criminal Appeals' conclusion in Petitioner's direct appeal regarding the nature and scope of the definition of "especially heinous, atrocious, or cruel" under Alabama law binds this court in this federal habeas corpus proceeding.
Had Petitioner's trial counsel insisted on having Mr. Cervantes testify as to the details of the Virginia armed robbery, the prosecution could legitimately have (1) asked him to describe in detail for the jury exactly what it felt like to be robbed at gunpoint by Petitioner's older brother, (2) argued that Cervantes' testimony showed it was the Petitioner who lured Mr. Cervantes to the isolated location where the robbery occurred, and (3) argued Petitioner did the exact same thing to Julie Rhodes, i.e., directed her to a relatively isolated location where Petitioner robbed and fatally shot her. Furthermore, evidence showing that Oscar Cervantes had lived to testify against Petitioner and Petitioner's older brother would have permitted the prosecution to argue at Petitioner's capital murder trial (as a reasonable inference from the evidence) that Petitioner fatally shot Julie Rhodes because he did not want her to live to testify against him.
The foregoing hypothetical jury arguments would have been permissible inferences, reasonably drawn from the evidence actually introduced during Petitioner's capital murder trial; the information concerning the details of Petitioner's Virginia robbery given to attorney Goggans by Mr. Cervenates (about which attorney Goggans testified without contradiction during Petitioner's Rule 32 hearing); and the evidence showing Petitioner had not carried a gun during the Virginia robbery. Most of the foregoing hypothetical prosecutorial arguments paraphrase the arguments the prosecution actually made at the close of the punishment phase of Petitioner's capital murder trial. Petitioner's trial counsel could reasonably have concluded that emphasizing the similarities and critical distinctions between the facts of Petitioner's Virginia robbery and Petitioner's robbery/murder of Julie Rhodes could prove harmful to Petitioner at the punishment phase of trial by inviting prosecutorial counter-arguments arguments similar to those set forth above.
Petitioner does not allege any facts, or offer an affidavit or properly authenticated records, showing Petitioner told attorney Goggans anything during their pretrial conversations that would have suggested to attorney Goggans that contacting Petitioner's criminal defense counsel from Virginia or reviewing any of the records from Petitioner's Virginia criminal proceeding would have furnished any helpful information in addition to, or different from, the information about the Virginia robbery that Petitioner actually conveyed to attorney Goggans or which attorney Goggans gained from interviewing the victim of the Virginia robbery. Attorney Goggans could have reasonably relied upon the information about the Virginia robbery conveyed to him by Petitioner and the information he learned through review of the documents in the prosecution's file concerning Petitioner's Virginia offense. Likewise, Petitioner alleges no facts showing it was unreasonable for attorney Goggans to rely upon the information related to attorney Goggans by the victim of the Virginia robbery.
Petitioner presented the Rule 32 court and presents this court with no evidence establishing (1) Petitioner was ever exposed to toxic chemicals at Camp Lejeune, (2) the murder weapon could misfire while being unloaded in the manner described by Petitioner, (3) the murder weapon could misfire a second time in the manner described by Petitioner, or (4) any potential defense witness identified by Petitioner to his defense team was reasonably available at the time of trial who could have testified about Petitioner's background without being subject to cross-examination about Petitioner's gang affiliation and history of drug trafficking.
Petitioner alleged no additional facts showing a prima facie case of racially discriminatory intent by the prosecution. This case is easily distinguishable from Madison v. Commn'r, Ala. Dep't of Corr., 677 F.3d 1333 (11th Cir.), cert. denied, 568 U.S. 1019 (2012). In Madison, the defendant pointed out that, in addition to the prosecution striking six of the thirteen black members of the jury venire, there was evidence in the record showing (1) the prosecution failed to ask any questions to three of the challenged jurors, (2) the case involved racially sensitive subject matter, and (3) the district attorney's office in question had previously been found to have engaged in discriminatory jury selection, including a prior criminal trial of the same defendant. Id., 677 F.3d at 1339.
Moreover, the victim of Petitioner's capital offense was a white female. The only female venire members the prosecution peremptorily struck were also white females. Petitioner's trial counsel could reasonably have concluded that, for the prosecution to strike female venire members simply because they were female would have been counterintuitive. Petitioner's trial counsel could reasonably have believed the prosecution would expect female jurors to be more empathetic and sympathetic to the plight of a female victim murdered by a male assailant than male jurors. Petitioner's trial counsel could reasonably have anticipated the trial judge would be skeptical of a defense complaint of alleged prosecutorial gender discrimination against female venire members (i.e., the prosecution's use of peremptory challenges to strike white female venire members) in a criminal murder case in which the victim was a white female. Petitioner's trial counsel could reasonably have concluded the foregoing statistics would be insufficient, standing alone and in light of the circumstances of Petitioner's trial, to establish a prima facie case of gender discrimination by the prosecution.
Petitioner did not allege any facts in his Rule 32 petition suggesting the prosecutor questioned female members of the jury venire any differently than the prosecutor questioned other members of the jury venire. Nor did Petitioner allege any facts showing the prosecution failed to direct questions to female members of the jury venire whom the prosecution later struck peremptorily. On the contrary, the manner in which the trial judge structured voir dire and the manner in which the prosecutor questioned the panels of venire members belies any contention the prosecution engaged in discriminatory questioning of the venire. In most cases, the prosecutor's questions were addressed to the entire panel of twelve venire members or to subgroups of each panel that included multiple venire members of both genders. Thus, there was very little opportunity for discriminatory questioning during voir dire at Petitioner's capital murder trial.
S.F. Trial, 12 SCR 1336-37.
