MEMORANDUM OF OPINION

L. SCOTT COOGLER, District Judge.

This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner Walter Leroy Moody ("Moody"), now incarcerated at Holman Prison in Atmore, Alabama. Moody challenges the validity of his 1996 convictions for capital murder and first degree assault and sentences of death and life without parole in connection with the December 1989 pipe-bomb murder of Judge Robert S. Vance of the United States Court of Appeals for the Eleventh Circuit.1 Upon thorough consideration of the entire record and the briefs submitted by the parties, the Court finds that Moody's petition for habeas relief is due to be denied.

                                      TABLE OF CONTENTS

  I.  THE OFFENSE CONDUCT ...............................................................1187

 II.  PROCEDURAL HISTORY ................................................................1193

III.  STANDARDS OF FEDERAL HABEAS REVIEW ................................................1194
      A.  Exhaustion of State Remedies and Procedural Default ...........................1194
      B.  Overcoming Procedural Default .................................................1196
      C.  AEDPA Review of State Court Decisions Under § 2254(d) and (e) .................1196
      D.  The Burden of Proof and Heightened Pleading Requirements for
            Habeas Petitions ............................................................1198

      E.  The General Standard for Ineffective Assistance of Counsel Claims .............1198

 IV.  MOODY'S SUBSTANTIVE CLAIMS2 .......................................................1200
      A.  Moody's claim that the trial court deprived him of his Sixth
            Amendment right to counsel ..................................................1200
          1.  The allegation that the trial court deprived Moody of his Sixth
                Amendment right to counsel by finding that Moody freely and
                voluntarily waived his right to the assistance of counsel at the
                hearing on August 2, 1994 and in other proceedings prior to his
                trial ...................................................................1207
          2.  The allegation that the trial court deprived Moody of his Sixth
                Amendment right to counsel when it failed to find and appoint
                counsel after Moody "withdrew" his waiver of his right to
                counsel .................................................................1212
          3.  The allegation that the trial court deprived Moody of his Sixth
                Amendment right to counsel when it failed to ensure he had
                "meaningful access" to legal materials necessary for
                self-representation .....................................................1214
          4.  The allegation that the trial court deprived Moody of his Sixth
                Amendment right to counsel when it failed to hold a hearing on
                Moody's pre-trial ineffective assistance of counsel claim ...............1214
          5.  The allegation that the trial court deprived Moody of his Sixth
                Amendment right to counsel by refusing to grant a continuance
                of at least one year — which was requested by Moody after jury
                selection had already begun at his trial — to allow his newly-obtained
                pro bono counsel time to prepare his case ...............................1215
          6.  The allegation that the foregoing alleged errors collectively
                deprived Moody of his Sixth Amendment right to counsel ..................1220
      B.  Moody's claim that the trial court deprived him of his Sixth Amendment
            right to counsel when it declined to appoint "standby counsel"
            to assist Moody when he was removed from the courtroom during
            his trial ...................................................................1220
      C.  Moody's claim that the trial court violated his Sixth Amendment right
            to confront witnesses when it removed him from the courtroom for
            disruptive behavior during his trial ........................................1227
      D.  Moody's claim that the trial court violated his Fifth, Sixth, Eighth, and
            Fourteenth Amendment rights when it failed to protect his rights as
            a pro se litigant ...........................................................1227
      E.  Moody's claim that he was convicted based on the improper admission
            of his prior crimes and acts in violation of his Fifth, Sixth, Eighth,
            and Fourteenth Amendment rights .............................................1228
          1.  The allegation that the trial court improperly permitted evidence
                to be introduced against Moody regarding his efforts to overturn
                his 1972 conviction on federal charges of possessing a pipe bomb
                which led to his conviction in 1990 on federal charges of
                suborning perjury and obstructing justice ...............................1229
          2.  The allegation that the trial court improperly permitted evidence
                to be introduced regarding Moody's other bombings-the pipe
                bomb mailed in December 1989 to Robert Robinson in Savannah,
                the pipe bomb mailed to the courthouse for the Eleventh Circuit
                Court of Appeals in Atlanta, and the pipe bomb mailed to the
                Jacksonville office of the NAACP ........................................1229
      F.  Moody's claim that he was denied a fair and impartial jury in violation
             of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights ...............1230

          1.  The allegation that the prosecutor improperly told one prospective
                juror,K.C.,during individual voir dire that everything Moody had
                been telling her during voir dire was "a complete and
                unadulterated lie" and that Moody had been convicted
                of perjury and of paying people to lie ..................................1230
          2.  The allegation that the trial court prejudiced Moody by informing
                prospective jurors of his problems with pretrial counsel, specifically
                that he had caused his court-appointed attorneys to
                withdraw, had thereafter rejected the court's repeated
                offers to appoint him new counsel, and that he had on
                numerous occasions sought to change attorneys on
                the eve of trials .......................................................1230
          3.  The allegation that the trial court improperly polled each juror
                about Moody's request for a continuance, asking each juror
                whether "considering the statement made by Moody and the
                trial court regarding Moody's representation status, he or she
                believed the case should be delayed or continued" .......................1231
          4.  The allegation that the trial court failed to ensure that the State
                did not use its peremptory challenges in a racially discriminatory
                manner ..................................................................1231
          5.  The allegation that the foregoing alleged errors collectively
                deprived Moody of his right to a fair trial .............................1231
      G.  Moody's claim that his Fifth,Sixth,Eighth,and Fourteenth Amendment
            rights were violated when the State introduced the following: evidence
            pertaining to Moody's undergraduate and law school records,
            including that he pursued a bachelors degree in chemistry and that
            he took courses in chemistry, biochemistry, and physics, and that he
            had completed about half the course work required to obtain a law
            degree; evidence of his litigation history and prior interactions with
            attorneys; and evidence of his alleged racial attitudes in the form of
            testimony from an ex-girlfriend that he had made positive remarks
            about George Wallace, Lester Maddox, and the John Birch Society,
            and that he had made negative remarks about Martin Luther King,
            Jr. and Maynard Jackson .....................................................1231
      H.  Moody's claim that his death sentence violates Ring v. Arizona, 536
            U.S. 584, 122 S.Ct. 2428 (2002) .............................................1232
      I.  Moody's claim that the state withheld exculpatory evidence in violation
            of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963) .....................1239

  V.  MOODY'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS ..................................1247
      A.  Moody's claim that he did not receive effective assistance of trial
            counsel .....................................................................1247
          1.  The allegation that the Alabama statute barring interim payments
                for attorneys representing indigent defendants denied Moody his
                right to effective assistance of counsel and expert assistance...........1247
          2.  The allegation that trial counsel was ineffective for failing to
                adequately investigate the facts surrounding the offense ................1254
          3.  The allegation that trial counsel was ineffective for failing to move
                for a change of venue and request a life-qualified jury .................1255
          4.  The allegation that trial counsel was ineffective for failing to
                investigate the status of Moody's mental health before moving to
                withdraw from representation ............................................1256
          5.  The allegation that trial counsel was ineffective for operating under
                a conflict of interest when the Attorney General's office provided
                $35,000 in funds as payment .............................................1256
          6.  The allegation that the foregoing alleged errors, collectively,
                established a violation of Moody's right to effective
                assistance of trial counsel .............................................1257

      B.  Moody's claim that he did not receive effective assistance of appellate
            counsel .....................................................................1257
          1.   The allegation that appellate counsel was ineffective for failing to
                 argue that the trial court should have sua sponte changed the
                 venue of the trial .....................................................1257
          2.   The allegation that appellate counsel was ineffective for failing to
                 argue that the trial court conducted insufficient voir dire based
                 on media coverage surrounding the crime,which allegedly
                 warranted a more in-depth voir dire process ............................1258
          3.   The allegation that appellate counsel was ineffective for failing to
                 assert claims of prosecutorial misconduct ..............................1259
          4.   The allegation that appellate counsel was ineffective for failing to
                 assert a claim that the State withheld exculpatory evidence in
                 violation of Brady v. Maryland .........................................1264
          5.   The allegation that appellate counsel was ineffective for failing to
                 assert a claim that the State used race-based peremptory strikes
                 during voir dire in violation of Batson v. Kentucky, 476 U.S. 79,
                 106 S.Ct. 1712 (1986) ..................................................1264
          6.   The allegation that appellate counsel was ineffective for failing to
                 assert a claim of ineffective assistance of pre-trial counsel ..........1266
          7.   The allegation that appellate counsel was ineffective for failing to
                 argue that the trial court deprived Moody of his Sixth
                 Amendment right to counsel .............................................1267
          8.   The allegation that appellate counsel was ineffective for failing to
                 "adequately" argue that the trial court deprived Moody of his
                 Sixth Amendment right to counsel when it failed to appoint
                 "standby counsel" for Moody when he was removed from the
                 courtroom ..............................................................1268
          9.   The allegation that appellate counsel was ineffective for failing to
                 argue that the trial court deprived Moody of his Sixth
                 Amendment right to confront witnesses when it removed
                 him from the courtroom for disruptive behavior during trial ............1269
         10.   The allegation that the foregoing alleged errors, collectively,
                 deprived Moody of his right to effective assistance of
                 appellate counsel ......................................................1269

 VI.  MOODY'S CLAIM THAT HE IS "ACTUALLY INNOCENT" ......................................1270

VII.  CONCLUSION ........................................................................1274

I. THE OFFENSE CONDUCT

The Alabama Court of Criminal Appeals (hereinafter, the "ACCA"), in its opinion on direct appeal from Moody's conviction, set out the background facts of this case, as follows:

In September 1986, when he was satisfied that Linn-West had learned his scripted story, Moody filed a petition for a writ of error coram nobis in the federal district court in Macon, asking the court to vacate his 1972 conviction based on "newly discovered evidence," i.e., the fabricated story placing the blame for the bombing on Gene Wallace. Linn-West's mother, Jo Ann Ekstrom, subsequently became involved in Moody's scheme, and she, too, agreed to give false testimony on his behalf. Following a hearing, in March 1988, at which Linn-West and Ekstrom perjured themselves by reciting Moody's scripted story, the district court denied Moody's petition. Moody appealed to the Eleventh Circuit Court of Appeals, which affirmed the denial in June 1989.FN6 This final rejection precipitated Moody's war on the courts. It was the State's theory at trial that Moody became disillusioned with lawyers, judges, and other representatives of the legal system as a result of his contacts with that system and that his inability to convince the courts that he had been wronged by the system led to the series of bombings that resulted in the death of Judge Vance.

Moody v. State, 888 So.2d 532, 540-45 (Ala.Crim.App.2003).

II. PROCEDURAL HISTORY

In December 1991, a Jefferson County, Alabama, grand jury indicted Moody on two counts of capital murder arising out of the death of Judge Vance and one count of assault in the first degree arising out of the injuries sustained by Helen Vance. The murder was made capital because it was committed by means of explosives or explosion, see Ala.Code § 13A-5-40(a)(9) (1975), and because Judge Vance was a federal public official and the murder was related to his official position, see Ala.Code § 13A-5-40(a)(11) (1975). All of the judges of the Tenth Judicial Circuit, which is composed of Jefferson County, recused themselves from hearing Moody's case. On April 8, 1992, the Chief Justice of the Alabama Supreme Court assigned Judge William H. Rhea III of the Etowah Circuit Court to preside over Moody's case. The trial was delayed several times, and Moody ultimately elected to waive his right to counsel and proceed pro se at his trial, as explained in more detail herein.

On November 5, 1996, Moody was convicted by a jury in the Jefferson County Circuit Court of all charges. After Moody's trial, the jury separately returned a verdict recommending death by a vote of eleven to one. On February 10, 1997, the trial court accepted the jury's recommendation and sentenced Moody to death for the capital murder convictions. The trial court also sentenced Moody, a habitual felony offender, to life imprisonment for the first-degree-assault conviction.

Moody, through counsel, appealed. On April 18, 2003, the ACCA affirmed Moody's convictions and sentences. Moody, 888 So.2d 532. On March 26, 2004, the Alabama Supreme Court denied Moody's petition for a writ of certiorari. Moody sought review from the United States Supreme Court, but the Supreme Court denied certiorari on November 1, 2004.

On March 23, 2005, Moody, through counsel, filed a state post-conviction petition pursuant to Rule 32 of the Alabama Rules of Criminal Procedure ("Rule 32") in the Circuit Court of Jefferson County, Alabama. The petition was amended on March 2, 2006, and again on July 20, 2009. The circuit court issued a summary dismissal on December 28, 2009. On December 16, 2011, the ACCA affirmed the circuit court's denial of post-conviction relief. Moody v. State, 95 So.3d 827 (Ala.Crim. App.2011). Moody filed an application for a rehearing, but it was denied by the ACCA on January 27, 2012. On May 18, 2012, the Alabama Supreme Court denied Moody's petition for a writ of certiorari.

Moody filed the instant petition on December 20, 2012, and it is his first and only federal application for habeas corpus relief pursuant to 28 U.S.C. § 2254.3 After this Court entered an initial order governing the requirements and deadlines for the filing of an amended petition, an answer, and accompanying briefs and certifications, Moody sought recusal of the undersigned judge and a change of venue in three separate filings. (Docs. 10, 19, and 30.) Each motion was denied by this Court. (Docs. 11, 20, and 31.) Moody then petitioned the United States Court of Appeals for the Eleventh Circuit for a writ of mandamus ordering the undersigned judge to recuse and directing the transfer of this action to a district judge outside of the bounds of the Eleventh Circuit. In the mandamus proceeding, Moody then separately moved for all of the judges of the Eleventh Circuit to recuse themselves from the proceeding and transfer the action to another circuit court of appeals. On March 21, 2014, the Eleventh Circuit denied Moody's motion for recusal of all of the judges of the Eleventh Circuit and denied his petition for a writ of mandamus. In re Moody, 755 F.3d 891 (11th Cir.2014). On November 3, 2014, the Supreme Court of the United States denied Moody's petition for a writ of certiorari. Accordingly, the habeas petition is now ripe for review.

III. STANDARDS OF FEDERAL HABEAS REVIEW

This action is governed by 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Guzman v. Sec'y, Dep't of Corr., 663 F.3d 1336, 1345 (11th Cir.2011). Pursuant to § 2254(a), a federal district court is prohibited from entertaining a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court" unless the petition alleges "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In other words, this Court's review of habeas claims is limited to federal constitutional questions. Claims pertaining solely to "an alleged defect in a [state] collateral proceeding" or to a "state's interpretation of its own laws or rules" do not provide a basis for federal habeas corpus relief under § 2254. Alston v. Dep't of Corr., Fla., 610 F.3d 1318, 1325-26 (11th Cir.2010) (quotation marks and citations omitted).

A. Exhaustion of State Remedies and Procedural Default

Under § 2254(b) and (c), a federal court must limit its grant of habeas applications to cases where an applicant has exhausted all state remedies. Cullen v. Pinholster, 563 U.S. 170, ___, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). The purpose of this requirement is to ensure that state courts are afforded the first opportunity to correct federal questions affecting the validity of state court convictions. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir.1998); see also Smith v. Newsome, 876 F.2d 1461, 1463 (11th Cir.1989) ("Federal courts are not forums in which to relitigate state trials.") (citation omitted). Moreover, "to exhaust state remedies fully the petitioner must make the state court aware that the claims asserted present federal constitutional issues. `It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state-law claim was made.'" Snowden, 135 F.3d at 735 (quoting Anderson v. Harless, 459 U.S. 4, 5-6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982)).

"[A]n issue is exhausted if `the reasonable reader would understand the claim's particular legal basis and specific factual foundation' to be the same as it was presented in state court." Pope v. Sec'y for Dep't of Corr., 680 F.3d 1271, 1286 (11th Cir.2012) (quoting Kelley v. Sec'y for Dep't of Corr., 377 F.3d 1317, 1344-45 (11th Cir.2004)) (brackets in original omitted). If a petitioner fails to raise his federal claim to the state court at the time and in the manner dictated by the state's procedural rules, the state court can decide the claim is not entitled to a review on the merits, i.e., "the petitioner will have procedurally defaulted on that claim." Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir.2010). Moreover, a "state court's rejection of a petitioner's constitutional claim on state procedural grounds will generally preclude any subsequent federal habeas review of that claim." Ward v. Hall, 592 F.3d 1144, 1156 (11th Cir.2010) (quoting Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir.2001)). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 2594, 115 L.Ed.2d 706 (1991).

Yet as the Eleventh Circuit has noted, a claim will only be procedurally defaulted in the following circumstance:

Ward, 592 F.3d at 1156-57 (footnote omitted).

There are also instances where the doctrines of procedural default and exhaustion intertwine. For instance, if a petitioner's federal claim is unexhausted, a district court will traditionally dismiss it without prejudice or stay the cause of action to allow the petitioner to first avail himself of his state remedies. See Rose v. Lundy, 455 U.S. 509, 519-20, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982). But "if it is clear from state law that any future attempts at exhaustion [in state court] would be futile" under the state's own procedural rules, a court can simply find that the claim is "procedurally defaulted, even absent a state court determination to that effect." Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir.1999) (citation omitted).

B. Overcoming Procedural Default

"[A]n adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 749-50, 111 S.Ct. 2546, 2564-65, 115 L.Ed.2d 640 (1991) (citations and internal quotation marks omitted).

The "cause and prejudice" exception is framed in the conjunctive, and a petitioner must prove both cause and prejudice. Id. at 750, 111 S.Ct. at 2565. To show cause, a petitioner must prove that "some objective factor external to the defense impeded counsel's efforts" to raise the claim previously. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). Examples of such objective factors include:

McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991) (internal quotation marks, brackets, and citations omitted). As for prejudice, a habeas petitioner must show "not merely that the errors ... created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816 (1982) (emphasis in original).

Finally, a petitioner may also escape a procedural default bar if he "can demonstrate a sufficient probability that [the court's] failure to review his federal claim will result in a fundamental miscarriage of justice." Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 1591, 146 L.Ed.2d 518 (2000). To make such a showing, a petitioner must establish that either: (1) "a constitutional violation has probably resulted in the conviction of one who is actually innocent," Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 2668, 91 L.Ed.2d 434 (1986) (quoting Carrier, 477 U.S. at 496, 106 S.Ct. at 2650), or (2) the petitioner shows "by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty." Schlup v. Delo, 513 U.S. 298, 323, 115 S.Ct. 851, 865, 130 L.Ed.2d 808 (1995) (emphasis in original) (quoting Sawyer v. Whitley, 505 U.S. 333, 336, 112 S.Ct. 2514, 2517, 120 L.Ed.2d 269 (1992)).

C. AEDPA Review of State Court Decisions Under § 2254(d) and (e)

When a constitutional claim upon which a petitioner seeks relief under § 2254 is not procedurally defaulted but has instead been adjudicated on the merits in state courts, this Court is still restricted in its ability to grant relief on those claims by § 2254(d). The AEDPA "imposes a highly deferential standard for evaluating state-court rulings" and "demands that state-court decisions be given the benefit of the doubt." Guzman, 663 F.3d at 1345 (internal quotation marks and citation omitted). To grant habeas relief on a claim, this Court must not only find that the constitutional claims are meritorious, but also that the state court's resolution of those claims:

28 U.S.C. § 2254(d)(1)-(2); see also Boyd v. Allen, 592 F.3d 1274, 1292 (11th Cir. 2010) (quoting § 2254(d)). The burden of showing that an issue falls within § 2254(d)(1) or (d)(2) is upon the petitioner. See Woodford v. Visciotti, 537 U.S. 19, 25, 123 S.Ct. 357, 360, 154 L.Ed.2d 279 (2002). Section 2254(d)(1)'s "contrary to" and "unreasonable application of" clauses have independent meanings. See Alderman v. Terry, 468 F.3d 775, 791 (11th Cir.2006) ("[T]he `contrary to' and `unreasonable application' clauses are interpreted as independent statutory modes of analysis.") (citation omitted). A state court's decision is contrary to "clearly established precedents [of the Supreme Court of the United States] if it applies a rule that contradicts the governing law set forth in [the Court's] cases, or if it confronts a set of facts that is materially indistinguishable from a decision of th[e] Court but reaches a different result." Brown v. Payton, 544 U.S. 133, 141, 125 S.Ct. 1432, 1438, 161 L.Ed.2d 334 (2005) (citation omitted). On the other hand, to determine whether a state court's decision is an "unreasonable application" of clearly established federal law, the Supreme Court has stated:

Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 785-86, 178 L.Ed.2d 624 (2011) (citation and quotation marks omitted) (emphasis in original); see also Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007) ("The question under 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."); Guzman, 663 F.3d at 1346 ("Ultimately, before a federal court may grant habeas relief under § 2254(d), `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.'") (quoting Harrington, 131 S.Ct. at 786-87).

Moreover, a state court's factual determination is entitled to a presumption of correctness under § 2254(e)(1). And commensurate with the deference accorded to a state court's factual findings, "the petitioner must rebut `the presumption of correctness [of a state court's factual findings] by clear and convincing evidence.'" Ward, 592 F.3d at 1155-56 (alterations in original) (quoting § 2254(e)(1)).

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

Additionally, because habeas corpus review is limited to review of errors of constitutional dimension, a habeas corpus petition "must meet [the] heightened pleading requirements [of] 28 U.S.C. § 2254 Rule 2(c)." McFarland v. Scott, 512 U.S. 849, 856, 114 S.Ct. 2568, 2572, 129 L.Ed.2d 666 (1994) (citation omitted). "[T]he petition must `specify all the grounds for relief available to the petitioner' and `state the facts supporting each ground.'" Mayle v. Felix, 545 U.S. 644, 655, 125 S.Ct. 2562, 2570, 162 L.Ed.2d 582 (2005) (quoting Rule 2(c) of the Rules Governing Section 2254 Cases in the U.S. District Courts). The burden of proof is on the habeas petitioner "to establish his right to habeas relief and he must prove all facts necessary to show a constitutional violation." Blankenship v. Hall, 542 F.3d 1253, 1270 (11th Cir.2008) (citation omitted); see also Smith v. Wainwright, 777 F.2d 609, 616 (11th Cir.1985) (holding that a general allegation of ineffective assistance of counsel is insufficient; a petition must allege specific errors in counsel's performance and facts showing prejudice).

E. The General Standard for Ineffective Assistance of Counsel Claims

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court established the following two-pronged standard for judging, under the Sixth Amendment, the effectiveness of attorneys who represent criminal defendants at trial or on direct appeal:

Id. at 687, 104 S.Ct. at 2064.

Because Strickland's preceding two-part test is clearly framed in the conjunctive, a petitioner bears the burden of proving both "deficient performance" and "prejudice" by "a preponderance of competent evidence." Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir.2000) (en banc); see also Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir.2000) ("Because both parts of the test must be satisfied in order to show a violation of the Sixth Amendment, the court need not address the performance prong if the defendant cannot meet the prejudice prong, [ ] or vice versa."). Further, when assessing ineffective assistance of counsel claims:

Williams v. Allen, 598 F.3d 778, 789 (11th Cir.2010) (brackets in original omitted) (citations and quotation marks omitted) (emphasis in original).

In order to establish deficient performance, a habeas petitioner "must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. That reasonableness is judged against "prevailing professional norms." Id., 104 S.Ct. at 2065. Moreover, under Strickland, lower federal courts must be "highly deferential" in their scrutiny of counsel's performance. Id. at 689, 104 S.Ct. at 2065. As the Strickland court outlined:

Id., 104 S.Ct. at 2065 (citations and quotation marks omitted).

Simply put, a habeas petitioner "must establish that no competent counsel would have taken the action that his counsel did take" to overcome the presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Chandler, 218 F.3d at 1315. The reasonableness of counsel's performance is judged from the perspective of the attorney, at the time of the alleged error, and in light of all the circumstances. See, e.g., Newland v. Hall, 527 F.3d 1162, 1184 (11th Cir.2008) ("We review counsel's performance `from counsel's perspective at the time,' to avoid `the distorting effects of hindsight.'") (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065).

To satisfy the prejudice prong, a habeas petition "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Stated differently, "[a] finding of prejudice requires proof of unprofessional errors so egregious that the trial was rendered unfair and the verdict rendered suspect." Johnson v. Alabama, 256 F.3d 1156, 1177 (11th Cir.2001) (citations and quotation marks omitted). Further, the fact that counsel's "errors had some conceivable effect on the outcome of the proceeding" is insufficient to show prejudice. Strickland, 466 U.S. at 693, 104 S.Ct. at 2067. Therefore, "when a petitioner challenges a death sentence, `the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.'" Stewart v. Sec'y, Dep't of Corr., 476 F.3d 1193, 1209 (11th Cir.2007) (quoting Strickland, 466 U.S. at 695, 104 S.Ct. at 2069).

Because Strickland and § 2254(d) both mandate standards that are "`highly deferential'", "when the two apply in tandem, review is `doubly' so." Harrington, 131 S.Ct. at 788 (citations omitted). The inquiry is not then "whether counsel's actions were reasonable," but is instead "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. The court must determine "whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard." Id. at 785. This "[d]ouble deference is doubly difficult for a petitioner to overcome, and it will be a rare case in which an ineffective assistance of counsel claim that was denied on the merits in state court is found to merit relief in a federal habeas proceeding." Evans v. Sec'y, Fla. Dep't of Corr., 699 F.3d 1249, 1268 (11th Cir.2012).

Finally, "[s]tate court findings of historical facts made in the course of evaluating an ineffectiveness claim are subject to a presumption of correctness under 28 U.S.C. § 2254(d)." Thompson v. Haley, 255 F.3d 1292, 1297 (11th Cir.2001).

With these principles in mind, the Court now turns to Moody's specific claims.

IV. MOODY'S SUBSTANTIVE CLAIMS

A. Moody's claim that the trial court deprived him of his Sixth Amendment right to counsel

Moody presents six interrelated sub-arguments within this ground for habeas relief. Before turning to those, a discussion is warranted of the circumstances surrounding Moody's decision to waive the assistance of counsel and proceed pro se at his trial. The ACCA, in its opinion on direct appeal, laid out the background facts in great detail, as follows:

Quite aware of Moody's dissatisfaction, Turberville and Jaffe, on June 7, 1994, moved to be allowed to withdraw from further representation of Moody based on "irreconcilable differences." In moving to withdraw as counsel, Turberville and Jaffe informed the trial court that their relationship with Moody had broken down entirely, that Moody "refuses to communicate with counsel unless counsel does exactly what the client says," that Moody "has claimed that both of his counsel are ineffective and inadequate," and that Moody had made numerous threats against them. On June 22, 1994, the trial court set a hearing on the matter for July 26, 1994. The hearing was later reset for August 2, 1994. On July 25, 1994, Moody filed a motion with the trial court requesting that he be allowed to proceed pro se.

FN11 For instance, the trial was delayed because Moody failed to obey several orders of the trial court to reveal his expert witnesses to the court and to advise the court of the areas of expertise of those witnesses.

FN12 There is no indication in the record that Moody had the financial resources to retain such counsel. We note that while an indigent defendant is entitled to appointed counsel, he has no absolute right to be represented by any particular counsel or by counsel of his choice. See, e.g., Snell v. State, 723 So.2d 105, 107 (Ala.Crim.App. 1998); Briggs v. State, 549 So.2d 155, 160 (Ala.Crim.App.1989).

FN13 The hearing was held immediately before an ex parte hearing on Moody's request for the assistance of experts in preparing his defense. The ex parte hearing was held pursuant to an order of the Alabama Supreme Court. See Ex parte Moody, 684 So.2d 114, 122 (Ala.1996).

FN14 The record reflects that Moody filed and argued numerous pro se motions in the months leading up to his trial.

FN15 Culp informed the trial court that he could serve as "local counsel" if Lewis were admitted to represent Moody; however, he stated that he was not qualified to represent Moody himself because he specialized in civil litigation and had little experience in the practice of criminal law.

FN16 Moody suggests in his brief, at p. 9, that the trial court "deprived [him] of his opportunity to exercise his rights under the Batson v. Kentucky[, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986),] decision." However, the trial court complied with Rule 18.4(f)(3), Ala. R.Crim. P., by randomly executing the peremptory strikes on Moody's behalf.

FN17 The trial court empaneled 18 veniremembers as the trial jury, 6 of whom were the alternate jurors.

FN18 Moody was present in court at this time.

FN19 Although Matteson did not specify at this time how long of a continuance he was requesting, it is clear from the record that he intended to represent Moody in cooperation with Lewis. Thus, it can be inferred that Matteson was requesting a continuance equal in length to the one requested by Lewis. Matteson never indicated that a continuance of shorter duration would provide him with sufficient time to prepare Moody's defense.

FN20 When the trial court asked Moody if he would like to make an opening statement to the jury, Moody responded as follows:

Moody, 888 So.2d at 546-53. These facts are supported by the record and presumed to be correct in this federal habeas proceeding. See 28 U.S.C. § 2254(e)(1).

The Court now turns to Moody's deprivation of counsel claim, divided into six separate allegations.4

1. The allegation that the trial court violated Moody's Sixth Amendment right to counsel by finding that Moody freely and voluntarily waived his right to counsel at the hearing conducted on August 2, 1994 and in other proceedings prior to his trial

In this first portion of the deprivation of counsel claim, Moody asserts that the trial court should not have determined that Moody waived his right to counsel at the August 2, 1994 Faretta hearing5 without first ordering a competency evaluation or otherwise inquiring into Moody's mental health to ensure that he could knowingly waive his right to an attorney. Moody also argues that the trial court could not have determined that his waiver was knowing and intelligent based on his answers to questions posed by the trial court, which he asserts indicate that he did not understand the nature of his right to counsel.

For purposes of determining whether Moody has exhausted his state remedies on this claim, the Court first notes that Moody never presented an argument to the state courts, either on direct appeal or during state post-conviction proceedings, that the trial court erroneously found that he waived his Sixth Amendment right to counsel prior to his trial. However, Moody did argue to the ACCA on direct appeal that it was an abuse of discretion under Alabama state law for the trial court to deny his motion for a continuance — made once jury selection in his trial had already begun — to allow his newly-obtained pro bono lawyers over a year to prepare for his trial, a claim that he raises again in this proceeding in subpart IV. A. 5. of this opinion, infra. In discussing the state-law-denial-of-a-continuance claim, the ACCA first had to decide whether Moody waived his Sixth Amendment right to counsel prior to his trial, because if he had not waived that right, it would have been error for the trial court to have allowed him to proceed to trial without the aid of an attorney. As the ACCA explained:

Moody, 888 So.2d at 553-54.

The ACCA then made an affirmative finding that Moody made a voluntary, knowing and intelligent waiver of his right to the assistance of counsel, as required by Faretta, as follows:

FN22 Any equivocation expressed by Moody during these pretrial proceedings centered around whether he desired standby counsel and the capacity in which any standby counsel would serve. Ultimately, Moody expressly stated that he did not want standby counsel.

FN23 In considering this issue, we find little significance in Moody's filing of a motion requesting Jaffe's reappointment as counsel shortly after Jaffe had been allowed to withdraw. As we have noted, Moody abruptly rescinded the motion for reappointment, stating that he had not resolved his "differences" with Jaffe. Moreover, the record supports the trial court's refusal to reappoint Jaffe on grounds that Moody still had a pending action against Jaffe in federal court and that Jaffe's differences with Moody were irreconcilable.

FN24 The record also reflects that Moody had accumulated some credits toward an undergraduate degree and that he had attended law school, where he had completed approximately half of the course work required for a law degree.

Moody, 888 So.2d at 554-56.

Because as part of its analysis on whether the trial court appropriately declined to grant a continuance to Moody on the first days of his trial, the ACCA sua sponte determined that Moody knowingly and voluntarily waived his right to counsel under the Sixth Amendment, the ACCA effectively considered the merits of Moody's constitutional claim that he did not knowingly and voluntarily waive his right to counsel. As such, the claim has been exhausted in the state courts and is subject to the deferential AEDPA review by this Court. See 28 U.S.C. § 2254(d).6 However, the deference afforded to state courts by federal courts sitting in review still prohibits this Court from granting relief on a claim unless the state court's adjudication on the merits of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, 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. See id.

The ACCA's decision was not contrary to, nor did it involve an unreasonable application of, United States Supreme Court precedent. "The Sixth Amendment safeguards to an accused who faces incarceration the right to counsel at all critical stages of the criminal process." Iowa v. Tovar, 541 U.S. 77, 80-81, 124 S.Ct. 1379, 1383, 158 L.Ed.2d 209 (2004). However, a criminal defendant also has the constitutional right to "proceed without counsel when he voluntarily and intelligently elects to do so." Faretta, 422 U.S. at 807, 95 S.Ct. at 2527. "The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). The ACCA's decision details Moody's repeated and unequivocal assertions of his desire to proceed pro se after the trial court ensured that he understood the consequences of doing so in multiple Faretta hearings. With regard to Moody's argument that the trial court should have ordered a psychological evaluation before conducting the Faretta hearing, nowhere does Moody allege facts to support a finding that he suffered harm or prejudice as a result of the alleged failure of the trial court (i.e., Moody does not claim he was actually incompetent to waive counsel). With regard to the argument that his waiver could not reasonably have been considered "knowing" because he was confused about what a waiver entailed, the facts do not support such a claim. As the ACCA noted, Moody had proceeded pro se in approximately thirty-five legal proceedings before this case, including trials; the trial court clearly expressed to him that he would not be able to go to trial with a hybrid form of representation, though he would be allowed to have standby counsel to advise him on procedure and the law; and Moody then clearly expressed to the court in writing that he did not want standby counsel.

Nor was the ACCA's decision based on an unreasonable determination of the facts in light of the record. Moody asserts that the ACCA's decision ignored the hearings on September 9, 1994 and March 2, 1995 where he indicated to the trial court that he had been having conversations with lawyers about representing him, but that they were unable to do so because of the financial difficulties involved. However, the ACCA also referred to "several other hearings conducted between the hearings of August 2, 1994 and May 7, 1996." Moody, 888 So.2d at 554-55. It is clear from the ACCA's opinion that these "other hearings" were considered as part of the review of the trial court's determination that there had been a valid waiver of counsel. Indeed, the ACCA more than complied with Johnson, as its thorough discussion of Moody's background as a serial litigant and the context surrounding his decision to waive counsel shows. See 304 U.S. at 464, 58 S.Ct. at 1023 (requiring the court to consider the background, experience, and conduct of the accused in determining whether a waiver was valid). Habeas relief is not warranted on this allegation.

2. The allegation that the trial court violated Moody's Sixth Amendment right to counsel when it failed to take necessary steps to find and appoint counsel after Moody "withdrew" his waiver of counsel

This allegation is premised on Moody's assertion that after his attorneys were permitted to withdraw and the Court determined that Moody waived his right to counsel on August 2, 1994, Moody "withdrew" that waiver when he repeatedly stated to the trial court that there were attorneys interested in representing him but that they could not do so adequately under the financial constraints of Alabama's indigent defense statute. As such, Moody claimed that he was being "forced" to proceed pro se. Moody contends that the trial court should have appointed an attorney to represent Moody at one of these points instead of continually finding that Moody wished to represent himself and, in so doing, the trial court unreasonably placed the burden of locating counsel on Moody in violation of Moody's Sixth Amendment right to counsel.

Habeas relief is not warranted on this allegation for various reasons.7 First, Moody never presented any federal constitutional argument on direct appeal or to the state post-conviction courts that it was error for the trial court to fail to appoint counsel for Moody after he "withdrew" his waiver of the right to counsel. The only discussion the ACCA made with regard to a withdrawal of a waiver of counsel was when it found that the trial court repeatedly advised Moody that he could withdraw his waiver of counsel at any time and have counsel appointed, and that in so doing the trial court complied with Rule 6.1(b) of the Alabama Rules of Criminal Procedure, which requires the court to inform the defendant when he waives counsel that he may withdraw the waiver. Moody, 888 So.2d at 556 & n. 25. This brief discussion was pursuant to an Alabama procedural rule, not the Sixth Amendment. Because Moody did not exhaust his state court remedies, this claim is now procedurally barred. See O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731, 144 L.Ed.2d 1 (1999) ("Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition."). Dismissal to allow Moody to exhaust these facts would be futile as he is now barred from raising this issue as a federal constitutional question in state court. A Rule 32 petition at this point would be barred by the statute of limitations, see Ala. R.Crim. P. 32.2(c), and by Alabama's ban on successive petitions, see Ala. R.Crim. P. 32.2(b); see also Collier v. Jones, 910 F.2d 770, 772 (11th Cir. 1990) ("[W]hen a petitioner has filed to present a claim to the state courts and under state procedural rules the claim had become procedurally defaulted, the claim will be considered procedurally defaulted in federal court.").8

Second, even if this Court were to review the ACCA's finding that Moody never withdrew his waiver of the right to counsel, Moody cannot establish that the decision is contrary to clearly established federal law, an unreasonable application of such law, or based on an unreasonable determination of the facts under § 2254(d). Moody's conduct at the various proceedings leading up to trial in no way established that he was withdrawing his waiver and invoking his right to counsel. As discussed by the ACCA, though Moody indicated that he had spoken to attorneys who wanted to take his case but could not for financial reasons, his desired solution to the problem was not that the court appoint an attorney. Instead, he challenged the constitutionality of the scheme Alabama used for paying attorneys who represented indigent defendants. The trial court warned him that if he wished to have counsel appointed, it was the court and not Moody who would choose that counsel. See Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) (holding that although the Sixth Amendment guarantees counsel, it does not grant defendants the unqualified right to counsel of their choice). However, rather than ask for appointed counsel, Moody simply continued to fight for a change in the payment scheme, and continued to assert his desire to proceed pro se. For example, although Moody later filed a "Motion to Appoint Counsel to Assist Defendant," in it, he requested that the court "appoint counsel to assist Defendant to represent himself pro se." (C.R. Vol. 10, p. 1877-78.) The court had clearly informed Moody that he would not be allowed to "proceed with a hybrid form of representation" when he made a similar request in a hearing on August 2, 1994. Moody, 888 So.2d at 548. Therefore, this request is no different from Moody's prior equivocal statements on the matter of representation. He never requested that the court appoint counsel in order to represent him in an unequivocal manner. Simply put, Moody's attempt to paint a picture indicating that he repeatedly requested appointed counsel through out his proceedings and was continuously denied that request by the trial court is simply not accurate. The findings of the ACCA are reasonable in light of the record.

Finally, the Supreme Court's decision in Marshall v. Rodgers, ___ U.S. ___, 133 S.Ct. 1446, 185 L.Ed.2d 540 (2013), forecloses Moody from being able to establish that the ACCA's decision was an unreasonable application of clearly established Supreme Court precedent. Rodgers concerned California's approach when a trial judge is faced with a defendant's post-waiver request for counsel, which was to "vest the trial judge with discretion to approve or deny such requests based on the totality of the circumstances." 133 S.Ct. at 1449. The Supreme Court stated that it had not provided "clearly established Federal law" on the issue of whether a defendant has a Sixth Amendment right to reassert his right to counsel once the right had been validly waived, but noted that the case before it did not require it to do so. Id. at 1449-50. The Court stated that in Rodgers, all it had to determine was whether California's approach was contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States, for purposes of AEDPA review. Id. at 1451. The Court held that the approach, which culminated in the California courts deciding that there was no Sixth Amendment violation in the denial of a defendant's post-waiver request for counsel, was not an unreasonable application of clearly established federal law. Id. Pursuant to Rodgers, then, even if Moody's equivocal statements made in various hearings after the August 2, 1994 Faretta hearing indicate Moody's intent to withdraw his waiver of counsel, Moody still cannot establish that the trial court's denial of these purported requests constituted an unreasonable application of clearly established federal law as required by § 2254(d). Habeas relief is not warranted on this allegation.

3. Moody's allegation that the trial court violated his Sixth Amendment right to counsel when it failed to ensure he had "meaningful access" to legal materials necessary for self-representation, such as paper, pens, postage, a telephone, law books, and a quiet and private space away from other inmates

Moody never presented this claim to the state courts on direct appeal or during post-conviction proceedings, and the state courts never considered this allegation sua sponte. See O'Sullivan, 526 U.S. at 845, 119 S.Ct. at 1732 ("[W]e conclude that state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process."). As such, Moody did not exhaust his state court remedies and this claim is now procedurally barred from this Court's review.

4. The allegation that the trial court violated Moody's Sixth Amendment right to counsel by failing to hold a hearing on his claim that his trial counsel were constitutionally ineffective

Moody claims that in failing to entertain his allegations of pre-trial counsel's ineffectiveness, the trial court violated his Sixth Amendment right to counsel. According to Moody, had the trial court listened to his claims, Moody would have been able to present to the court facts that would have demonstrated that Moody's complaints about his counsel were legitimate and he was not at fault for the breakdown of the attorney-client relationship that resulted in counsel's withdrawal from his case, and these facts would have caused the trial court to more thoroughly consider whether Moody's allegations that he was forced to proceed pro se in August 1994 had a factual basis.

Moody never raised this particular claim before the state courts on direct appeal or during post-conviction proceedings. As such, Moody did not exhaust his state court remedies and this claim is now procedurally barred from this Court's review.

Even if the Court was not procedurally barred from granting relief on this claim, it would find that the claim lacks merit. The record shows that while they were still representing him, Moody requested a hearing on Turberville and Jaffe's alleged ineffectiveness, which the trial court set for June 7, 1994. (C.R. Vol. 8, p. 1516). Moody complains that the trial court did not take up the issue at that hearing, but the court actually set another hearing on Turberville and Jaffe's motions to withdraw as counsel, and at that hearing Moody's motion to proceed pro se was granted. (C.R. Vol. 55, Tab #R-13, transcript of June 7, 1994 hearing, pages 1-19; Vol. 56, Tab #R-14, transcript of August 2, 1994 hearing.) Later, Moody subpoenaed Jaffe, who was no longer representing him, as well as other witnesses (including Alabama's then-Attorney General Jeff Sessions) to appear and testify at a pre-trial hearing already scheduled by the trial court for June 29, 1995. (C.R. Vol. 11, p. 2001-02; Vol. 12, p. 2354.) Moody also filed a motion in which he sought an order that Turberville and Jaffe bring files to court for the purpose of establishing their alleged ineffective assistance. (C.R. Vol. 11, p. 2007-09.) The trial court quashed the subpoenas of these individuals. (C.R. Vol. 11, p. 2003-20; Vol. 12, p. 2355.)

Moody argues that his being able to present an ineffective assistance of pretrial counsel argument to the trial court would have somehow changed the course of events and the trial court would have appointed counsel for Moody over his objection. As discussed in the previous sections, the trial court did not appoint counsel for Moody at any point between Moody's first waiver of the right to counsel in August 1994 and Moody's trial because Moody repeatedly waived his right to the assistance of counsel during this time. As previously noted, the trial court repeatedly informed Moody that he could change his mind at any time during the proceedings and request that the court appoint counsel to represent him, but Moody never requested to withdraw his waiver of counsel or have new counsel appointed by the court. Therefore, Moody cannot claim that his waiver of counsel and decision to proceed pro se was forced upon him by the court's refusal to appoint effective counsel to replace his supposedly ineffective counsel. In other words, whether or not Moody's pre-trial counsel were ineffective has no bearing on the validity of the waiver he continued to stand by long after Turberville and Jaffe had been permitted to withdraw. Habeas relief is not warranted on this claim.

5. The allegation that the trial court violated Moody's Sixth Amendment right to counsel by refusing to grant a continuance of at least one year — which was requested by Moody after jury selection had already begun at his trial — to allow his newly-obtained pro bono counsel time to prepare his case

As discussed in the first sub-allegation of this section, Moody presented this claim to the ACCA on direct appeal, but couched as an argument that the trial court abused its discretion in denying the continuance. However, as noted, the ACCA sua sponte injected a federal constitutional question into the analysis because of the potential Sixth Amendment implications of the denial of the continuance and ultimately denied the claim on the constitutional merits. After having found that Moody made a voluntary, knowing and intelligent waiver of his right to the assistance of counsel, the ACCA found no Sixth Amendment violation in the denial of Moody's motion for a continuance to allow new counsel to prepare his case after the jury selection process had already begun. The relevant portion of the ACCA's decision is reproduced herein:

FN25 In this regard, the trial court fully complied with Rule 6.1(b), Ala. R.Crim. P., which provides, in pertinent part, that "[a]t the time of accepting a defendant's waiver of the right to counsel, the court shall inform the defendant that the waiver may be withdrawn and counsel appointed or retained at any stage of the proceedings."

FN26 Rule 6.1(c), Ala. R.Crim. P., provides that a defendant who has withdrawn a waiver of the right to counsel "will not be entitled to repeat any proceeding previously held or waived solely on the grounds of the subsequent appointment or retention of counsel."

FN27 Accordingly, we disagree with Moody's statement in his brief that he gained access to the memorandum "just before trial." (Moody's brief at p. 8.)

Moody, 888 So.2d at 556-59.

Because the merits of the Sixth Amendment issue were raised and considered by the ACCA, the claim is subject to the deferential AEDPA review by this Court. See 28 U.S.C. § 2254(d). As previously discussed, in light of Marshall v. Rodgers, ___ U.S. ___, 133 S.Ct. 1446, 185 L.Ed.2d 540 (2013), Moody cannot establish that the ACCA's thorough and detailed analysis was an unreasonable application of clearly established Supreme Court precedent. Rodgers held that it does not violate clearly established federal law for a court to deny a defendant's post-waiver request for counsel. Id. at 1451. Moody argues that Rodgers is distinguishable because the defendant in that case had unequivocally waived his right to counsel but then reasserted the right at the Motion for New Trial stage of the trial court proceeding; while here, Moody's waiver of counsel was equivocal and he did not reassert the right for the purpose of a Motion for a New Trial, but rather on the first days of trial. For the reasons discussed in the previous sections, Moody's waiver of the right to counsel was firm, repeated, and not equivocal. Additionally, Moody's attempt to distinguish Rodgers splits hairs because the Supreme Court stated that it was answering the question "whether, after a defendant's valid waiver of counsel, a trial judge has discretion to deny the defendant's later request for reappointment of counsel." Rodgers, 133 S.Ct. at 1449. Therefore, Rodgers is applicable in this case despite the timing of Moody's request for counsel in the first days of his trial rather than after his trial.

Not only is there no clearly established federal law that the ACCA's decision violated, the ACCA's decision comports with principles announced by federal courts prohibiting a defendant's use of the right to counsel as a sword, rather than as a shield. See, e.g., United States v. Mitchell, 777 F.2d 248, 258 (5th Cir.1985) ("[N]o matter, how fundamental the right to counsel may be, it may not be used as a means of delaying or trifling with the court."). The ACCA's reasonable factual determinations, which this Court must defer to under 28 U.S.C. § 2254(d), clearly support the conclusion that Moody's last-minute request for the assistance of Lewis and Matteson was made for the purpose of disrupting the orderly procedure of the court and interfering with the fair administration of justice. Because the ACCA's decision was not contrary to law, habeas relief is not warranted on this ground.

6. The allegation that the above alleged errors collectively violated Moody's Sixth Amendment right to counsel

This Court has considered the foregoing five allegations individually because that is how Moody structured them. However, Moody also asserts that the collective effect of the previously-stated unmeritorious allegations violated his Sixth Amendment rights. His protestations that he is actually asserting one overarching claim with multiple sub-parts does not change the fact that he has presented several allegations in this proceeding that he did not exhaust in the state courts. See Kelley, 377 F.3d at 1344 ("the prohibition against raising nonexhausted claims in federal court extends not only to broad legal theories of relief, but also to the specific assertions of fact that might support relief"). As such, as portions of the foregoing claims are procedurally barred because they were not exhausted in state court, this claim, too, is procedurally barred. Further, this particular claim, that these five sub-claims constitute error when considered collectively, was never presented to the state courts on direct appeal or during post-conviction proceedings. As such, Moody did not exhaust his state court remedies and this claim is now procedurally barred.

B. Moody's claim that the trial court violated his Sixth Amendment right to counsel when it failed to appoint "standby counsel" to assist Moody once he was removed from the courtroom for disruptive behavior during his trial

Moody raises a separate claim that the trial court should have sua sponte and over Moody's objection appointed standby counsel for Moody during his trial, considering the fact that Moody refused to participate in his trial and at one point was removed from the courtroom for disruptive behavior.

As an initial matter, the parties dispute whether Moody fairly presented this claim in the state courts such that he alerted the state courts to the federal constitutional nature of the claim. See Snowden, 135 F.3d at 735. If Moody did not, the claim is unexhausted and barred from review by this Court under 28 U.S.C. § 2254(b)(1). In Baldwin v. Reese, the Supreme Court indicated that "[a] [habeas petitioner] wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state-court petition or brief, for example, by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim `federal.'" 541 U.S. 27, 32, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004). In that case, the habeas petitioner's citation to nothing more than a lower court opinion in an effort to raise a constitutional claim before a state court did not "`fairly present' [the constitutional] claim to [the] state court [because] that court must read beyond a petition or brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so." Id. Here, Moody raised this claim on direct appeal to the ACCA, but he cited only Alabama precedent and made no reference to federal law. However, the Alabama state cases that he cited — Ford v. State, 515 So.2d 34 (Ala.Crim.App.1986); Washington v. State, 539 So.2d 1089 (Ala. Crim.App.1988); and Russaw v. State, 572 So.2d 1288 (Ala.Crim.App.1990) — address the issue of deprivation of standby counsel in federal constitutional terms, citing Faretta and other federal cases at length, and they make no distinction between federal and state standards applicable to the right to standby counsel. In turn, the ACCA, in discussing the claim, first cited Alabama precedent for the rule that the appointment of standby counsel is not constitutionally mandated and rests with the discretion of the trial court. Moody, 888 So.2d at 559 (citing Ford, 515 So.2d at 43-44) (which in turns states that neither Faretta nor McKaskle v. Wiggins, 465 U.S. 168, 184, 104 S.Ct. 944, 954, 79 L.Ed.2d 122 (1984), requires the appointment of standby counsel). The ACCA then discussed the claim in federal constitutional terms, directly citing Faretta and Wiggins in holding that the trial court did not err in failing to appoint standby counsel in part because appointing standby counsel over Moody's objection would have resulted in an infringement on Moody's federal right of self-representation. Id. at 562.

Under these circumstances, the Court is of the opinion that Moody fairly presented the federal claim to the ACCA, because he cited to cases that "decid[ed] [the] claim on federal grounds." Baldwin, 541 U.S. at 32, 124 S.Ct. at 1351. Additionally, the ACCA did in fact discuss the claim in federal constitutional terms. As such, the claim is subject to deferential AEDPA review by this Court under 28 U.S.C. § 2254(d). The ACCA's full discussion of this claim is reproduced herein:

FN28 This court in Russaw also held that reversal of the defendant's conviction was required because the trial court had failed to instruct the jury that in order to convict the defendant of the capital offense of robbery-murder, the jury had to find that the defendant had a particularized intent to kill the victim. 572 So.2d at 1289.

Moody, 888 So.2d at 559-63.

Moody asserts that the ACCA's opinion was contrary to, or an unreasonable application of, clearly established Supreme Court precedent, which he contends requires a trial court to appoint standby counsel when a defendant stops representing himself because, for instance, he is removed from the courtroom. However, Supreme Court precedent establishes that the appointment of standby counsel for precautionary purposes is purely discretionary and based on the defendant's cooperation. The Supreme Court in Faretta recognized that in some instances, "a State may — even over objection by the accused — appoint a `standby counsel' to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant's self-representation is necessary." 422 U.S. at 834 n. 46, 95 S.Ct. at 2541 n. 46 (emphasis added). The Court cited United States v. Dougherty, 473 F.2d 1113 (D.C.Cir.1972), as illustrating such a situation. In Dougherty, the defendants argued that the trial court denied them their right to self representation by appointing standby counsel, and the court had to determine whether the defendants forfeited that right by their disruptive behavior. Id. at 1124. There, the court of appeals noted that standby counsel may be appointed in pro se cases to assist the defendant, including advising on procedure and strategy, but that the decision whether to appoint standby counsel should be:

Id. at 1125.

Thus, not only has the Supreme Court held that the decision whether to appoint standby counsel rests with the trial court, the ACCA also reasonably concluded that as they did in McKaskle v. Wiggins, the dangers of appointing standby counsel over Moody's objection would have played out in Moody's case. In Wiggins, the trial court appointed standby counsel over the defendant's objections. 465 U.S. at 170-71, 104 S.Ct. at 947. During the trial, standby counsel made an opening statement, questioned a witness on voir dire, and made objections. Id. at 171-73, 104 S.Ct. at 947-48. On appeal, Wiggins asserted that his right to self-representation was eviscerated by counsel's too-frequent injections into the conduct of the trial. Id. at 173, 104 S.Ct. at 948. The Supreme Court recognized that "participation by standby counsel without the defendant's consent should not be allowed to destroy the jury's perception that the defendant is representing himself." Id. at 178, 104 S.Ct. at 951. However, the Court found that most of counsel's actions were not objected to the by the defendant and that in those instances where they were, they did not overbear the defendant's own theory of defense or become so excessive as to lead the jury to believe that Wiggins was not representing himself. Id. at 180-83, 104 S.Ct. at 952-53. As such, the Court held that a defendant's Sixth Amendment right to represent himself is not automatically violated when a trial judge appoints standby counsel to assist the defendant. Id. at 184, 104 S.Ct. at 954. The ACCA reasonably opined that the trial court was subject to Moody's complaints either way: Moody now argues that the trial court should have appointed standby counsel over his vigorous objection, but had the trial court appointed standby counsel, Moody would have thereafter complained that the false appearance of assistance by the presence of standby counsel restricted to doing nothing was a prime example of unconstitutionally compromising a defendant's right to conduct his own defense and to have the jury fully aware that he is doing so. As the ACCA's decision is not contrary to law, habeas relief is not warranted on this ground.

C. Moody's claim that the trial court violated his Sixth Amendment right to confront witnesses when it removed him from the courtroom for disruptive behavior during his trial

As a result of his disruptive behavior and his refusal to commit to abiding by the rules of conduct required in the courtroom, Moody was removed from the courtroom and placed into a room from which he could observe and listen to the proceedings.9 (C.R. Vol. 62, pp. 822, 842.) Moody acknowledges that it is permissible for a court to remove an unruly defendant when the defendant engages in disruptive and disorderly behavior, but he argues that his conduct did not warrant removal and thus his Sixth Amendment right to confront witnesses was violated.

Moody never presented this claim to the state courts either on direct review or in post-conviction proceedings. As such, Moody did not exhaust his state court remedies and this claim is now procedurally barred from review.

Moody concedes that the claim is unexhausted but asserts that the constitutional ineffectiveness of his direct appeal counsel in failing to raise this issue excuses the default. For the reasons stated in subpart V.B. 9. of this opinion, infra, Moody's direct appeal counsel was not constitutionally ineffective for failing to raise this claim before the ACCA, so the procedural default is not excused. Habeas relief is not warranted on this claim.

D. Moody's claim that the trial court violated his Fifth, Sixth, Eighth, and Fourteenth Amendment rights when it failed to protect his rights as a pro se litigant

Moody presented this claim on direct appeal to the ACCA, arguing that the trial judge "breached his duty to control the proceeding and protect Moody," and that Moody's "rights to a fair trial, due process of law and equal protection of the law were all denied in the process." (C.R. Vol. 76, p. 28 of "Brief of Appellant".)10 The ACCA denied the claim on the merits, finding that the trial judge "demonstrated admirable forbearance throughout the proceedings.... treated Moody with respect, patiently listened to Moody's arguments and requests, was extremely solicitous of Moody despite his obstructionist tactics, and acted responsibly to vindicate Moody's rights as well as could be expected under the circumstances." Moody, 888 So.2d at 596.

Moody presented the claim again in his Rule 32 proceedings, and the ACCA affirmed the trial court's dismissal of the claim on the sole ground that it violated Alabama Rule of Criminal Procedure 32.2(a)(4),11 as the claim had already been raised and addressed on direct appeal. Moody, 95 So.3d at 837-43. The ACCA's rejection of this claim on adequate and independent state procedural grounds precludes this Court from reviewing the claim. See Ward, 592 F.3d at 1156 (federal review is precluded when the last state court rendering a judgment in the case states that it was relying on state procedural rules to resolve the federal claim without reaching the merits of the claim).

Were the claim not barred, the Court would find that it lacks merit. Nowhere in his amended habeas petition does Moody allege facts to support this claim. He merely offers the bald assertion that his rights were violated. Thus, Moody's Amended Petition does not aver facts which, if true, would establish a constitutional violation. See McFarland, 512 U.S. at 856, 114 S.Ct. at 2572 (indicating that federal courts are authorized to summarily dismiss a claim that is legally insufficient on its face due to failure to meet the heightened pleading requirements for habeas petitions). For all of these reasons, habeas relief is not warranted on this claim.12

E. Moody's claim that he was convicted based on the improper admission of his prior crimes and acts in violation of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights

Moody divides this claim into two allegations, and as discussed below, each is procedurally defaulted.

1. The allegation that the trial court improperly permitted evidence to be introduced against Moody regarding his efforts to overturn his 1972 conviction on federal charges of possessing a pipe bomb which led to his conviction in 1990 on federal charges of suborning perjury and obstructing justice

Moody presented this claim on direct appeal to the ACCA, but purely as a state law question, citing state law precedent. No federal authority, much less clearly established federal law as determined by the Supreme Court of the United States, was presented in support of this argument by Moody on direct appeal. Nowhere did Moody even reference violations of his constitutional rights. Indeed, Moody's arguments focused solely on "relevance," "materiality," and Rule 401 of the Alabama Rules of Evidence. Ultimately, it is clear from the resolution of this claim that the ACCA did not view it as a federal question. See Moody, 888 So.2d at 589-90 (ultimately concluding that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice as the evidence was relevant to prove that Moody had a motive for precipitating war on the judicial system and the jury was instructed to consider the evidence only for that purpose). As such, Moody's claim is unexhausted. As reasoned by the Supreme Court in Picard v. Connor:

404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). Moody's failure to exhaust state remedies bars this sub-claim from this Court's review as it is procedurally defaulted, and Moody has not demonstrated cause and prejudice to excuse the default.

2. The allegation that the trial court improperly permitted evidence to be introduced regarding Moody's other bombings — the pipe bomb mailed in December 1989 to Robert Robinson in Savannah, the pipe bomb mailed to the courthouse for the Eleventh Circuit Court of Appeals in Atlanta, and the pipe bomb mailed to the Jacksonville office of the NAACP

As with the previous sub-claim, Moody presented this claim on direct appeal to the ACCA, but purely as a state law question, citing state law precedent. No federal authority or constitutional provisions were presented in support of this argument by Moody on direct appeal. Indeed, Moody's arguments focused solely on "relevance," "materiality," and Rule 404(b) of the Alabama Rules of Evidence. The ACCA did not view this claim as a federal question. See Moody, 888 So.2d at 579-87 (ultimately concluding that the evidence of other bombings was relevant to providing the identity of the person who delivered the pipe bomb to the home of Judge Vance, and to prove that the pipe bomb that killed Judge Vance was part of a common scheme or plan because the bombs were so similar and distinctive in design and construction that they shared the "signature" of the same maker, and because Moody's wife testified that she had been sent out to purchase the components that the experts found in the bombs). As such, Moody's claim is unexhausted, and he has not demonstrated cause and prejudice to excuse the procedural default of his claim.

F. Moody's claim that he was denied a fair and impartial jury in violation of his Fifth, Sixth, Eighth, and Fourteenth Amendment Rights

Moody divides this claim into five allegations, and as discussed below, each is procedurally defaulted.

1. The allegation that the prosecutor improperly told one prospective juror, K.C., during individual voir dire that everything Moody had been telling her during voir dire was "a complete and unadulterated lie" and that Moody had been convicted of perjury and of paying people to lie

Again, Moody did not present this claim on direct appeal as a federal constitutional question, but rather as a state law ground, citing state law precedent. No federal authority, much less clearly established federal law as determined by the Supreme Court of the United States, was presented in support of this argument by Moody on direct appeal. Nowhere did Moody reference violations of his constitutional rights. Ultimately, it is clear from the resolution of this claim that the ACCA did not view it as a federal question. See Moody, 888 So.2d at 574-76 (ultimately concluding that Moody was not harmed by the prosecutor's statements to K.C. because no other jurors were present when the statements were made, the court sua sponte excused juror K.C. before the striking process began, and there was no indication that K.C. did not follow the court's instruction to the jurors not to discuss with anyone else the matters that were brought out during individual voir dire). Having failed to present the issue as a federal question in state court, the claim is unexhausted. The claim is procedurally defaulted from this Court's review, and Moody has not demonstrated cause and prejudice to excuse the default.

2. The allegation that the trial court prejudiced Moody by informing prospective jurors of his problems with pretrial counsel, specifically that he had caused his court-appointed attorneys to withdraw, had thereafter rejected the court's repeated offers to appoint him new counsel, and that he had on numerous occasions sought to change attorneys on the eve of trials

Again, Moody did not present this claim on direct appeal as a federal constitutional question, but rather as a state law ground, citing state law precedent. The ACCA did not view it as a federal question either. See Moody, 888 So.2d at 576-78 (ultimately concluding that any error in the trial court's comments to the venire members was harmless given that during the State's case-in-chief, it introduced evidence of Moody's lengthy litigation history, which indicated that Moody had been involved in numerous prior proceedings in which he fired or dismissed his attorneys). The ACCA also denied relief on this portion of this ground based on the doctrine of invited error, writing:

Moody, 888 So.2d at 577 (footnote omitted). Having failed to present the issue as a federal question in state court, the claim is unexhausted. The claim is procedurally defaulted from this Court's review, and Moody has not demonstrated cause and prejudice to excuse the default.

3. The allegation that the trial court improperly polled each juror about Moody's request for a continuance, asking each juror whether "considering the statement made by Moody and the trial court regarding Moody's representation status, he or she believed the case should be delayed or continued"

Again, Moody did not present this claim on direct appeal as a federal constitutional question, but rather as a state law ground, citing state law precedent, and the ACCA resolved it on purely state law grounds. See Moody, 888 So.2d at 578 (concluding that the trial court safeguarded against any potential prejudice by later individually instructing each juror that issues relating to Moody's representation status should be disregarded and the case should be decided on the law and evidence). Having failed to present the issue as a federal question in state court, the claim is unexhausted. The claim is procedurally defaulted from this Court's review, and Moody has not demonstrated cause and prejudice to excuse the default.

4. The allegation that the trial court failed to ensure that the state did not use its peremptory challenges in a racially discriminatory manner

Moody claims that the trial court failed to correct the State's use of 76% of its peremptory strikes to exclude potential black jurors, even though blacks only composed 50% of the total venire. Moody also asserts generally that the "Jefferson County District Attorney's Office had a well-documented history of racial discrimination in jury selection." (Doc. 29 at 63.) Moody never presented this claim in any fashion to any state court. As such, this claim is now procedurally barred from this Court's review, and Moody has not demonstrate cause or prejudice.

5. The allegation that the foregoing five allegations, collectively, violated Moody's right to a fair trial by an impartial jury

Moody never presented this "collective" claim in any fashion to any state court. As such, this claim is now procedurally barred, and Moody has not demonstrated cause or prejudice.

G. Moody's claim that his Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated when the State introduced the following: evidence pertaining to Moody's undergraduate and law school records, including that he pursued a bachelors degree in chemistry and that he took courses in chemistry, biochemistry, and physics, and that he had completed about half the course work required to obtain a law degree; evidence of his litigation history and prior interactions with attorneys; and evidence of his alleged racial attitudes in the form of testimony from an ex-girlfriend that he had made positive remarks about George Wallace, Lester Maddox, and the John Birch Society, and that he had made negative remarks about Martin Luther King, Jr. and Maynard Jackson

As with others, Moody did not present this claim on direct appeal as a federal constitutional question, but rather as a state law ground, citing state law precedent. No federal authority, much less clearly established federal law as determined by the Supreme Court of the United States, was presented in support of this argument by Moody on direct appeal. Nowhere did Moody reference violations of his constitutional rights. Ultimately, it is clear from the resolution of this claim that the ACCA did not view it as a federal question. Under state law, the ACCA held that the evidence regarding Moody's pursuit of a bachelor of science degree in chemistry, and that he took courses in chemistry, biochemistry, and physics, was relevant to show that Moody had scientific knowledge of subject matter useful in making explosive devices like the pipe bomb that killed Judge Vance. Moody, 888 So.2d at 590-95. The ACCA further held that the evidence that Moody took several classes in law school, and that he had completed about half the course work required to obtain a law degree, was relevant to prove that his unsuccessful attempt to overturn a prior conviction for possessing a pipe-bomb, which disqualified him from practicing law, provided a motive and precipitated his seeking revenge on the judicial system, which ultimately resulted in the judge's murder. Id. Additionally, the ACCA held that evidence that over an approximately 18-year period, Moody had been a party in at least 22 trial-level cases, that he appealed 14 of those cases to higher courts, 10 of which were to the Court of Appeals for Eleventh Circuit, and that his appeals to the Eleventh Circuit were largely unsuccessful, was relevant to showing that Moody had extensive contact with the judicial system and that he felt excessive grievances with persons representing the judicial system, which provided a motive for seeking revenge against those persons, and which ultimately resulted in the judge's murder. Id. Finally, the ACCA held that the testimony of Moody's former girlfriend that Moody expressed racial animus towards African-Americans and that he believed the judicial system favored blacks was relevant to identifying Moody as the person who delivered the pipe bomb which killed the judge because her testimony connected Moody with the death-threat letters delivered to every judge on the Eleventh Circuit Court of Appeals and to the African-American news anchor immediately after the judge and the civil rights attorney were killed. The letters stated that one federal judge, one attorney, and one officer for the NAACP would be assassinated for every rape of a white woman by a black man and thus indicated that the person responsible for killing the judge and the attorney, and for sending the pipe bombs to two NAACP offices, viewed victims as disposable objects in a war against the judicial system. Id.

Having failed to present the issue as a federal question in state court, the claim is unexhausted. The claim is procedurally defaulted from this Court's review, and Moody has not demonstrated cause and prejudice to excuse the default.

H. Moody's claim that his death sentence violates Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002)

Moody asserted the same claim before the ACCA on direct appeal that he reiterates in this action, which is that Alabama's capital murder statute is unconstitutional and he is ineligible for the death penalty under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which held that capital defendants, like non-capital defendants, are entitled to a jury determination of every fact that increases their punishment beyond the statutory maximum. According to Moody, because the jury in his case recommended death by a verdict of 11-1, there was no unanimity from the jury regarding the presence of aggravating factors under Alabama's capital murder statute or the conclusion that he was deserving of death.

The ACCA, after thorough analysis, denied this claim on the merits. The ACCA first wrote:

FN53 On June 24, 2002, while this case was pending on appeal, the United States Supreme Court issued its decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). We requested that Moody and the State brief the applicability of Ring to Moody's death sentence. Because Rule 45A, Ala. R.App. P., requires that we search the record for any plain error and because Moody's case was not final at the time Ring was released, we are obligated to consider the impact that Ring has on Moody's case. See Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).

This court has recognized that "[t]he holding in Ring was narrow." Stallworth v. State, 868 So.2d 1128, 1183 (Ala.Crim. App.2001) (opinion on second return to remand). As the Ring Court noted:

FN54 The Supreme Court noted in Apprendi that Almendarez-Torres's recognition of an exemption for the fact of a prior conviction also "turned heavily upon" the "certainty that procedural safeguards attach [ ] to any `fact' of prior conviction." Apprendi, 530 U.S. at 488, 120 S.Ct. 2348. As the Supreme Court stated in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), a precursor of Apprendi, "one basis" for distinguishing prior convictions is that "a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees." 526 U.S. at 249, 119 S.Ct. 1215.

FN55 At the sentencing hearing, the State presented exemplified copies of 59 prior convictions for violent felonies.

Moody, 888 So.2d at 597-600.

Moody broadly asserts that the state court decision was contrary to, or an unreasonable application of, clearly established federal law. However, it is plain in the foregoing text that the ACCA specifically abided by the explicit holding in Almendarez-Torres permitting the trial judge to find the existence of a prior conviction, a holding specifically left undisturbed in Ring. See Moody, 888 So.2d at 600 ("In extending Apprendi to capital sentencing, the Court in Ring did not eliminate the `prior conviction' except arising in Almendarez-Torres. The Court noted in Ring that `[n]o aggravating circumstance related to past convictions in his case; Ring therefore does not challenge Almendarez-Torres.' 536 U.S. at 597 n. 4, 122 S.Ct. at 2437 n. 4."). Pursuant to Almendarez-Torres, then, the ACCA reasonably found that insofar as the trial court found the aggravating circumstance that Moody had previously been convicted of another capital offense or felony involving the use or threat of violence to the person, that aggravating circumstance made Moody eligible for the death penalty and did not implicate the holding in Ring.

Importantly, though, the ACCA also rejected Moody's Ring claim on the following additional grounds:

FN56 The trial court's instructions in this regard were materially identical to those set out in the Proposed Pattern Jury Instructions for Use in the Sentence Stage of Capital Cases Tried Under Act No. 81-178.

FN57 We note that nothing in Ring supports Moody's claim, at p. 11 of his supplemental brief, that the jury's advisory verdict must be unanimous. See Duke v. State, 889 So.2d 1, 43 n. 4 (Ala.Crim.App.2002) (opinion on return to remand).

Moody, 888 So.2d at 601-02. In short, the ACCA determined that, because before the jury could vote on whether to recommend the imposition of the death penalty, they had to unanimously agree that at least one of the aggravating circumstances making Moody eligible for the death penalty had been proven by the State to exist beyond a reasonable doubt, the holding of Ring was not violated.

In Harrington v. Richter, the Supreme Court explained:

131 S.Ct. at 787. Thus, "[a]s a condition for obtaining habeas corpus from a federal court, 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." Id. at 786-87. "Or, phrased ... more simply and maybe a little more clearly: if some fairminded jurists could agree with the state court's decision, although others might disagree, federal habeas relief must be denied." Loggins v. Thomas, 654 F.3d 1204, 1220 (11th Cir.2011). "However it is phrased, the deference due is heavy and purposely presents a daunting hurdle for a habeas petitioner to clear." See id. (citing Richter, 562 U.S. 86, 131 S.Ct. at 786).

Under this highly deferential standard of review required in this proceeding, where the state court is entitled to the benefit of the doubt, there is no validity to Moody's bald assertion that the state court decision was contrary to, or involved an unreasonable application of clearly established federal law as determined by the United States Supreme Court. Habeas relief is not warranted on this claim.

I. Moody's claim that the State withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963)

Moody argues that the State improperly withheld from him certain exculpatory evidence of DNA analysis, evidence that he was not the person who purchased the keg of Red Dot gunpowder at a gun shop in Griffin, Georgia that was linked with the mail bomb that killed Judge Vance, and evidence of other possible suspects for the bombings and other investigations into other bombings. Moody raised a Brady claim for the first time in his Rule 32 proceedings, claiming as follows:

Moody, 95 So.3d at 850-51 (quoting Moody's Rule 32 petition) (footnote omitted).

The ACCA affirmed the trial court's dismissal of the claim pursuant to Alabama Rule of Criminal Procedure 32.2(a)(5)13 due to Moody's failure to raise the claim on direct appeal. Moody, 95 So.3d at 858. If that had been the only reason for the dismissal, this Court would have been barred from granting relief on the claim under the adequate and independent state law procedural ground doctrine, unless Moody demonstrated cause and prejudice for the default. See Ward, 592 F.3d at 1156.14

However, the ACCA also affirmed the trial court's dismissal of the Brady claim on the alternative ground that Moody did not plead the claim with specificity pursuant to Alabama Rules of Criminal Procedure 32.3 and 32.6(b).15 In so concluding, the ACCA effectively incorporated its discussion on Moody's similar claim that his appellate counsel was ineffective for not raising a Brady claim into its conclusion that Moody failed to plead the substantive Brady claim with particularity. See Moody, 95 So.3d at 858 n. 21 (stating that the trial court was correct in its finding that Moody failed to adequately plead a Brady claim and referring to an earlier part of the opinion in which the court discussed Moody's failure to plead the ineffective assistance of counsel claim based on Brady). With regard to Moody's claim that his appellate counsel was ineffective in failing to raise his Brady claim on appeal, the ACCA wrote:

FN17 Indeed, Moody did not even allege in his petition what capital crime he was convicted of or who the victim of that crime was. Moody stated only: "On November 6, 1996, I was convicted in Jefferson County and on February 10, 1997, I was sentenced to death." (C. 211.)

FN18 Although this Court may take judicial notice of its own records, see note 5, supra, we are not required, in the Rule 32 context, to search the record from a petitioner's direct appeal to ascertain the factual basis for a postconviction claim. As noted above, the full factual basis for the claim must be included in the petition itself.

FN19 Moody did raise a separate claim of newly discovered evidence based in large part on the evidence that formed the basis of this claim and alleged within that claim that he did not know about this evidence. See Part II of this opinion. However, he did not amend this claim to incorporate by reference the allegation that he did not know about the evidence and could not have reasonably discovered it. In addition, as explained in Part II of this opinion, Moody failed to allege, even within his newly-discovered-evidence claim, when he discovered the alleged evidence, how he discovered the alleged evidence, what efforts he took to obtain the alleged evidence, or why he could not have discovered the evidence earlier through reasonable diligence.

Moody, 95 So.3d at 851-54.

As the foregoing demonstrates, the ACCA concluded that because Moody did not plead a Brady violation with the required specificity, then he necessarily did not adequately plead an ineffective assistance of counsel claim based on counsel's failure to allege Brady violations on direct appeal. A state court ruling of deficient pleading is considered to have been on the merits for purposes of federal court review pursuant to 28 U.S.C. § 2254(d). Boyd v. Comm'r, Alabama Dep't of Corr., 697 F.3d 1320, 1331 (11th Cir.2012) ("[B]ecause a dismissal ... for failure to sufficiently plead a claim under Rule 32.6(b) requires an evaluation of the merits of the underlying federal claim, the Court of Criminal Appeals's determination was insufficiently `independent' to foreclose federal habeas review. Accordingly, the district court was not barred from considering the merits of the relevant claim.") (quoting Frazier v. Bouchard, 661 F.3d 519, 525 (11th Cir.2011)). Even though it was couched within the Court's discussion of an ineffective assistance of counsel claim, the ACCA's detailed discussion of why Moody's substantive Brady claim failed to satisfy Alabama's requirement that a habeas petitioner plead facts with specificity constitutes a merits determination on Moody's substantive Brady claim such that this Court is required to conduct the deferential review of 28 U.S.C. § 2254(d).

The ACCA's decision was not contrary to or an unreasonable application of clearly established federal law or based on an unreasonable determination of the facts. As explained by the Eleventh Circuit:

Boyd, 697 F.3d at 1334-35. It is clear from Moody's Rule 32 petition, which the ACCA quoted, that he failed to provide facts regarding the evidentiary nature of the alleged Brady material, the names of witnesses who would provide testimony in support of the material he cited, how it was discovered, when it was discovered, and the reasons it could not have been discovered through the exercise of reasonable diligence prior to trial. To prevail, Moody was required to plead a factual basis which, if true, would have clearly established suppression by the State of material, exculpatory evidence. The ACCA's determination that Moody failed to meet Alabama's heightened fact-pleading requirement was neither contrary to or an unreasonable application of Brady.

It was also reasonable for the ACCA to conclude that Moody's claim was not pled sufficiently because he never alleged that he did not know about the evidence he listed and could not have reasonably discovered the evidence himself in time to raise it at trial, in a motion for new trial, or on appeal. See Moody, 95 So.3d at 854 n. 19 & 858 n. 21. The ACCA correctly noted that for purposes of a Brady claim, the government is under no duty to disclose information already known by the defendant or material that is available or accessible through the exercise of reasonable diligence. Id. at 853-54. The ACCA's finding that Moody did not plead that he was unaware of the evidence or that it was not available or accessible to him through the exercise of reasonable diligence is supported by the record, which actually indicates that Moody was aware of much of the evidence either prior to trial or in time to at least raise a Brady claim on direct appeal following trial.16 For example, with regard to his claim regarding DNA results of saliva on the stamps of the envelopes containing the threatening letters that were admitted at his trial, any DNA results obtained by investigators were provided to Moody during his federal trial, which occurred prior to the state prosecution, as well as during the state prosecution. (C.R. Vol. 2, p. 223-49; Vol. 50, Tab #R-7, pp. 51-53, 65, 69.) With regard to the claim that the State withheld evidence concerning another person buying all of the Red Dot gunpowder from the gun shop in Griffin, Georgia, the record shows that during voir dire, Moody insisted on raising this allegation, in the form of a question, with potential jurors. (C.R. Vol. 60, Tab #R-22, p. 479, lines 8-12; p. 487, lines 10-14; p. 493, lines 7-11.) Moody also wrote his pre-trial counsel about this evidence well before his trial began. (C.R. Vol. 10, Tab #R-1, pp. 1911-12.). Finally, with regard to the evidence of other possible suspects and other bombings, the record shows that Moody was made aware of much of this information before his trial began.17 For example, Moody alleges in the amended petition that the State withheld evidence regarding Robert Wayne and Mary Ann O'Ferrell, who possessed the typewriter on which the letters included in the package bombs were typed. The record, however, clearly shows that Moody was aware of this information before trial. (C.R. Vol. 2, Tab #R-1, p. 340; Vol. 3, Tab #R-1, p. 531; Vol. 4, Tab #R-1, p. 723; Vol. 49, Tab #R-5, p. 33; Tab #R-6, pp. 12, 21-22; Tab #R-7, pp. 12-13, 18-19, 23-24, 30; Vol. 50, Tab #R-7, pp. 33-34.) In addition, the record shows that Moody was aware of the 1989 bombing of a Maryland judge well before his trial began. (C.R. Vol. 1, Tab #R-1, p. 55; Vol. 50, Tab #R-7, pp. 123-24.) Further, the allegations Moody makes against witnesses Roger Martz and Robert Webb were based on what was commonly referred to as the "Whitehurst Memorandum," which Moody was well aware of prior to his trial.18 (C.R. Vol. 61, Tab #R-22, pp. 661-663; Vol. 75, Tab #R-45, p. 19.) Moody was further aware prior to his trial that the State would be relying on a search of computer records contained in multiple agency databases. (C.R. Vol. 4, Tab #R-1, p. 707.) The foregoing establishes that the ACCA's determination that Moody failed to meet Rule 32's heightened pleading requirements by not alleging that he was unaware of this evidence was reasonable in light of the record, which actually shows that Moody was aware of it prior to trial. See Maharaj v. Sec., Dep't of Corr., 432 F.3d 1292, 1315 (11th Cir.2006) ("Our case law is clear that where defendants, prior to trial, had within their knowledge the information by which they could have ascertained the alleged Brady material, there is no suppression by the government.") (internal quotation marks and alternation omitted).

Finally, the Court also notes that portions of this claim are unexhausted, as Moody presented different facts to the state courts in his Rule 32 proceedings in support of his claim than he presents here. For example, in his Rule 32 petition, Moody's Brady claim pertaining to DNA evidence alleged:

(C.R. Vol. 79, Tab #R-57, p. 230, ¶ 51.) In this Court, however, Moody alleges that "the saliva belonged to a person whose identity was not disclosed by the State." (Doc. 29, p. 44, ¶ 116). Moody never alleged to the state courts that a DNA match was linked to "a person whose identity was not disclosed by the State." The addition of a conclusory allegation that a DNA "match" to an identified third-party was suppressed by the State is a material addition to Moody's Brady claim from what was presented in state court. Additionally, in state court, Moody's basis for his "Red Dot powder" Brady accusation was that a man named John Hamill told federal agents that a man named Mark McSwigen claimed to have purchased "the entire inventory" of such powder "available at the local store at that time." (C.R. Vol. 79, Tab #R-57, p. 21, ¶ 54). Thus, as presented to the state courts the Brady component of suppression by the State is lacking because Moody never alleged that any state official knew of this fact. Here, however, Moody materially changes his claim to read, "The State possessed evidence that a local skeet shooter named Mark McSwiggin was the man who actually purchased the Red Dot gunpowder from the Shootin Iron, in Griffin, Georgia." (Doc. #29, ¶ 192.) Here, Moody alleges this information was provided to the state. (Doc. 29, ¶ 121.)19 Additionally, in his Rule 32 petition, Moody never alleged, as he does in his amended petition, that the State withheld any evidence relating to a December 1989 mail bombing of a judge in Maryland. (C.R. Vol. 79, Tab #R-57, pp. 19-22.) Likewise, Moody's Rule 32 petition's allegations regarding Roger Martz make no mention of the Department of Justice report cited in the amended petition. (Compare C.R. Vol. 79, Tab #R-57, p. 21, ¶ 55 with Doc. #29, ¶¶ 198-199.) Finally, the allegations against Robert Webb were never presented to the state courts. As the Eleventh Circuit has observed, "the prohibition against raising non-exhausted claims in federal court extends not only to broad legal theories of relief, but also to the specific assertions of fact that might support relief." Kelley, 377 F.3d at 1344. Thus, this claim is further procedurally barred due to Moody's failure to exhaust portions of the factual predicate supporting the claim. See Pope, 680 F.3d at 1286; Kelley, 377 F.3d at 1344.

V. MOODY'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

A. Moody's claim that he did not receive effective assistance of trial counsel

Moody's ineffective assistance of trial counsel claim is divided into six sub-allegations. Each is addressed in turn.

1. The allegation that the Alabama statute barring interim payments for attorneys representing indigent defendants denied Moody his right to effective assistance of trial counsel and expert assistance

Moody argues that he was denied the effective assistance of counsel at trial in part because of the insufficient funding provided by the State of Alabama for the compensation of capital defense attorneys. At the time of Moody's representation by trial counsel, Dan Turberville and Richard Jaffe, Alabama Code section 15-12-21(e) (1975) provided for payment to attorneys and experts at the conclusion of an indigent defendant's trial, not before. Under this statute, no payments were made to Turberville and Jaffe; instead, the attorneys received compensation for attorneys fees and for payment of experts only through a separate agreement with the Attorney General's Office.20 Moody now argues that this Alabama statute deprived him of his Sixth Amendment right to effective counsel, violated the Equal Protection Clause, violated the doctrine of separation of powers, and resulted in a "taking without just compensation." He also argues that it deprived him of the assistance of necessary experts in violation of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights.

Portions of this claim are procedurally barred as unexhausted. Before the ACCA on direct appeal, Moody argued only that the statute was unconstitutional as applied to his case as it deprived him of the ability to obtain expert assistance and denied him "due process and equal protection." Moody never presented to the state courts, either on direct appeal or during post-conviction proceedings, the portion of this claim alleging violation of the separation of powers doctrine and alleging an unconstitutional taking. As such, Moody did not exhaust his state court remedies and those portions of the claim are now procedurally barred from this Court's review. See Collier, 910 F.2d at 772 ("When a petitioner has failed to present a claim to the state court and under state procedural rules the claim had become procedurally defaulted, the claim will be considered procedurally defaulted in federal court.").21

With regard to the portion of the claim alleging deprivation of his Sixth Amendment right to effective counsel pertaining to interim payments for attorneys Turberville and Jaffe, Moody similarly did not raise this claim on direct appeal. As recounted by the ACCA on direct appeal, while Turberville and Jaffe were still representing Moody, they sought and received an order from the trial court directing the state comptroller to pay immediately certain funds sought for their compensation and payment for experts and paralegals. Moody, 888 So.2d at 565-66. The comptroller refused, citing Ala.Code § 15-12-21. Id. at 566. The State petitioned the ACCA for a writ of prohibition, requesting that the court quash all orders of the trial court that directed the comptroller to immediately pay the funds requested by Moody's counsel. Id. The ACCA granted the writ; Moody, through Jaffe and Turberville, sought a rehearing, which was denied; and Moody, again through counsel, then sought certiorari review in the Alabama Supreme Court, arguing that the refusal to immediately provide funds violated Moody's Sixth and Fourteenth Amendment rights. Id. The Alabama Supreme Court initially granted the petition, but later quashed it, writing that because in the meantime the trial court had granted Moody's request to proceed pro se and allowed Turberville and Jaffe to withdraw and thus they were no longer seeking interim payments, the issue of whether the statute was unconstitutional for failing to provide for interim payments to attorneys was moot. Id. (citing Ex parte Moody, 658 So.2d 446, 448 (Ala.1995)).22 Accordingly, the ACCA determined on direct appeal that in light of the Alabama Supreme Court's ruling and the fact that Moody did not pursue his claim on direct appeal that the payment limitations of § 15-12-21(d) for compensation of attorneys are unconstitutional, it would not consider the claim. Id. at n. 31. However, the ACCA did note that while Moody had argued in the trial court that the failure to provide advance payments to his attorneys and for experts violated his constitutional rights by resulting in there being no competent counsel willing to represent him, Alabama's statutory scheme for compensating court-appointed attorneys in capital cases had withstood numerous constitutional challenges. Id. (citing cases). In light of Moody's failure to reassert this portion of the claim on direct appeal, this Court is procedurally barred from considering it. Even if it were not, Moody's petition contains no facts to support his conclusory assertion that the statute is unconstitutional as it applied to the assistance of Jaffe and Turberville in his case and thus fails to satisfy the heightened pleading standard required in federal habeas cases. See McFarland, 512 U.S. at 856, 114 S.Ct. at 2572.

As noted, Moody did pursue on direct appeal that portion of the claim alleging that the statute unconstitutionally interfered with Moody's right to the assistance of experts. The ACCA denied the claim on the merits, writing:

"[MOODY]: Yes, sir. Well, I'm not sure what it's called. The way I would like to do it is — in other words, the State has all these pictures attached as exhibits. I would have no objection with presenting a motion to the Court and saying these pictures need to go to a certain expert with his name being held ex parte until after the results are presented to me. And then at that point in time, after all this is done, after the experts have done their thing, then I think that would be the appropriate time to present their names to the State."

Moody, 888 So.2d at 570-74 (some footnotes omitted).

Moody does not allege that the ACCA's ruling on this issue is contrary to, or an unreasonable application of, clearly established federal law or an unreasonable determination of the facts. Indeed, in light of Supreme Court precedent establishing that an indigent defendant is not entitled to the expert of his particular choice, see Ake v. Oklahoma, 470 U.S. 68, 84, 105 S.Ct. 1087, 1097, 84 L.Ed.2d 53 (1985), and the fact that Moody never demonstrated the purpose and nature of the expert assistance that he sought, despite being afford several opportunities to do so, the ACCA's decision is in accord with established precedent and supported by the facts of the record. Habeas relief is not warranted on this portion of the claim.

2. The allegation that trial counsel was ineffective for failing to adequately investigate the facts surrounding the offense

In this sub-claim, Moody faults Jaffe and Turberville for not discovering the "Whitehurst Memorandum" before they withdrew from the case, which Moody alleges would have given them reason to believe that investigators had withheld exculpatory evidence in Moody's 1991 federal trial. Moody also charges that effective trial counsel would have been able to properly object to the introduction of certain witnesses, questioned the accuracy of certain witnesses' testimony, and challenged the admission of Moody's prior bad acts at trial.

Moody raised this claim for the first time in his Rule 32 proceedings. The ACCA, in its opinion affirming the trial court's denial of Rule 32 relief, found that this claim was procedurally barred by Alabama Rule of Criminal Procedure 32.2(a)(3) and (5),23 as Moody never raised it in a motion for new trial and then on direct appeal in compliance with Alabama procedural law. Moody, 95 So.3d at 837-43.24 The state court's rejection of this constitutional claim on adequate and independent state procedural grounds precludes this Court from reviewing the merits of the claim. See Ward, 592 F.3d at 1156.

Even if this claim were not procedurally defaulted, this Court would dismiss it based on Moody's failure to plead facts stating a claim. See McFarland, 512 U.S. at 856, 114 S.Ct. at 2572 (heightened fact pleading required in federal habeas actions). Moody states in his petition that effective counsel would have done various things at trial, yet he fails to demonstrate how they could have done so in light of their withdrawal at Moody's insistence in August 1994, some two years prior to Moody's trial. Additionally, Moody's assertions about Turberville and Jaffe's failure to discover the "Whitehurst Memorandum" also fail to state a claim for relief considering Moody states elsewhere in his amended petition that the document was not circulated until one year after his attorneys withdrew and Moody's motion to proceed pro se was granted. (Doc. 29 at 28 n. 83).

Finally, even if not procedurally defaulted and properly pleaded, Moody's claim fails on its merits. Having elected to represent himself, Moody cannot blame any shortcomings in the defense on the removal of attorneys which Moody orchestrated through his own actions. See Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. at 2541 n. 46 ("[A] defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounts to a denial of `ineffective assistance of counsel.'"). Habeas relief is not warranted on this claim.

3. The allegation that trial counsel was ineffective for failing to move for a change of venue in light of the fact that Judge Vance was a popular judge in Jefferson County and for failing to request a life-qualified jury

As with the previous allegation, Moody raised this claim for the first time in his Rule 32 proceedings, and the ACCA, in its opinion affirming the state trial court's denial of Rule 32 relief, found that this claim was also procedurally barred by Alabama Rule of Criminal Procedure 32.2(a)(3) and (5), as Moody never raised it in a motion for new trial and then on direct appeal in compliance with Alabama procedural law. Moody, 95 So.3d at 837-43. The state court's rejection of this constitutional claim on adequate and independent state procedural grounds precludes this Court from reviewing the merits of the claim.

Also as with the previous allegation, even if this claim were not procedurally defaulted, this Court would dismiss it based on Moody's failure to plead facts stating a claim and on its merits. Moody does not explain why he could not have moved for a change of venue or for a life-qualified jury in the intervening two years between Moody's decision to proceed pro se and his trial. See Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. at 2541 n. 46. Habeas relief is not warranted on this claim.

4. The allegation that trial counsel was ineffective for failing to investigate the status of Moody's mental health before moving to withdraw from representation

Moody argues that Turberville and Jaffe should have taken his long history of mental health problems, including paranoid personality disorder, of which they were aware, into consideration before moving to withdraw. Again, Moody raised this claim for the first time in his Rule 32 proceedings, and the ACCA, in its opinion affirming the trial court's denial of Rule 32 relief, found that this claim was procedurally barred by Alabama Rule of Criminal Procedure 32.2(a)(3) and (a)(5), as Moody never raised it in a motion for new trial and then on direct appeal in compliance with Alabama procedural law. Moody, 95 So.3d at 837-43. The state court's rejection of this constitutional claim on independent and adequate state procedural grounds precludes this Court from reviewing the merits of the claim. See Ward, 592 F.3d at 1156.

5. The allegation that trial counsel was ineffective for operating under a conflict of interest created by a $35,000 fund controlled by the trial judge

Moody bases this claim on the existence of the stipulation between Turberville and Jaffe and the Alabama Attorney General's Office that provided for the Attorney General's depositing $35,000 of that office's funds with the trial court for the court to then distribute to Moody's counsel upon request as a means of payment for their services. Moody argues that trial counsel's acquiescence in this arrangement constitutes ineffective assistance of counsel because it resulted in counsel's loyalties being divided as they were receiving compensation directly from the prosecutor's office; because his counsel should have realized that, due to Moody's mental state, when Moody discovered the arrangement, it would lead, and did lead, to an irreparable breakdown in the attorney-client relationship; and because his counsel did not use any of these funds for experts.

Again, Moody raised this claim for the first time in his Rule 32 proceedings, and the ACCA, in its opinion affirming the trial court's denial of Rule 32 relief, found that this claim was procedurally barred by Alabama Rule of Criminal Procedure 32.2(a)(3) and (5), as Moody never raised it in a motion for new trial and then on direct appeal in compliance with Alabama procedural law. Moody, 95 So.3d at 837-43. The state court's rejection of this constitutional claim on independent and adequate state procedural grounds precludes this Court from reviewing the merits of the claim. See Ward, 592 F.3d at 1156. Additionally, Moody's allegation that an actual conflict existed because trial counsel compensated themselves from the trial court's fund rather than pay experts was never presented to the state courts. As such, this portion of the claim is unexhausted. See Picard, 404 U.S. at 275, 92 S.Ct. at 512. Finally, even if not procedurally defaulted, the Court would dismiss the claim on the merits. Regardless of Turberville and Jaffe's use of this fund, they were permitted to withdraw in August 1994. Thereafter, Moody elected to proceed pro se and declined appointment of new counsel numerous times. Moody cannot establish prejudice as to this claim.

6. The allegation that foregoing five sub-claims, considered collectively, establish a violation of Moody's constitutional right to effective assistance of trial counsel

Moody argues that the collective effect of the foregoing five sub-claims violated his right to the effective assistance of trial counsel. To the same extent portions of the foregoing claims were found to be procedurally barred under state law, this claim, too, is procedurally barred. Additionally, this specific claim, that these particular five sub-claims constitute error when considered collectively, was never presented to the state courts. This particular claim, then, is unexhausted. See Picard, 404 U.S. at 275, 92 S.Ct. at 512.

B. Moody's claim that he did not receive effective assistance of appellate counsel

Moody alleges that direct appeal counsel failed to raise certain claims and did not raise others adequately, constituting ineffective assistance. He divides this claim into ten sub-allegations. Each claim is addressed in turn.

1. The allegation that appellate counsel was ineffective for failing to argue that the trial court should have sua sponte changed the venue of the trial due to extensive media coverage

Moody asserted this claim in his Rule 32 Petition, and the ACCA affirmed the trial court's dismissal of the claim based on Moody's failure to sufficiently plead the claim as required by Alabama Rules of Criminal Procedure 32.3 and 32.6(b).25 Moody, 95 So.3d at 843-45. Because a state court ruling of deficient pleading is considered to have been on the merits, this Court will conduct the deferential review of the claim pursuant to 28 U.S.C. § 2254(d). See Boyd, 697 F.3d at 1331.

Moody has not shown that the ACCA's decision was contrary to, or an unreasonable application of, clearly established federal law for purposes of this Court's deferential review under § 2254(d). The clearly established federal law is the Strickland analysis governing ineffective assistance of counsel claims. This Court's inquiry on a § 2254(d) review is "whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard." Harrington, 131 S.Ct. at 785. In other words, this Court need not determine "whether counsel's actions were reasonable," but instead "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. at 788. As noted by the ACCA, Moody's Rule 32 petition merely concluded that "[t]he jury pool in Jefferson County was saturated with potential jurors who had read, heard and discussed the facts of [the] case." Moody, 95 So.3d at 844. Moody did not identify any such jurors in voir dire, nor provide a basis of what they allegedly heard, read or discussed. Id. at 845. Moody also described "extensive newspaper articles" spanning several years, without attaching such articles to his petition and without listing the title, publication, date of publication, and objectionable content of such articles. Id. Nor did Moody allege the name of a single juror who sat on his case who had either read or heard about his case. Id. Before a change of venue is warranted, the community must be saturated with prejudicial pretrial publicity or there must be actual prejudice against the defendant. See, e.g., Skilling v. United States, 561 U.S. 358, 378, 130 S.Ct. 2896, 2913, 177 L.Ed.2d 619 (2010). The ACCA reasonably concluded that because Moody failed to allege sufficient facts indicating that he would be entitled to a change of venue due to prejudicial or actual prejudice, he necessarily failed to plead sufficient facts to indicate that his appellate counsel was ineffective for not raising the claim on direct appeal.26 Habeas relief is not warranted on this claim.

2. The allegation that appellate counsel was ineffective for not arguing that the trial court conducted insufficient voir dire based on the media coverage surrounding the crime, which allegedly warranted a more in-depth voir dire process

As with the previous claim, Moody asserted this claim in his Rule 32 petition, and the ACCA on appeal from the trial court's denial of relief determined that Moody's pleading was deficient under Alabama Rule of Criminal Procedure 32.3 and 32.6(b) and upheld the dismissal of the claim. Moody, 95 So.3d at 843-45. As noted, a state court ruling of deficient pleading is considered to have been on the merits for purposes of this Court's review under § 2254(d). Boyd, 697 F.3d at 1331.

Moody has not shown that the state court decision was contrary to, or an unreasonable application of, clearly established federal law. The state courts noted that Moody's pleadings were deficient because he did not identify a single prejudicial juror who sat on his case due to the insufficient voir dire alleged, such that appellate counsel should have raised the argument. Moody, 95 So.3d at 846 ("As the circuit court noted in its order, Moody failed to identify a single juror who sat on his jury who he believed was biased. Rather, he made only the bare and conclusory allegation that `members of my jury were biased against me as a result of their exposure to media coverage and their pre-existing views on the death penalty.'"). But see Coleman v. Zant, 708 F.2d 541, 544 (11th Cir.1983) (explaining that actual prejudice requires that a defendant show both (i) "that one or more jurors who decided the case entertained an opinion, before hearing the evidence adduced at trial, that the defendant was guilty" and (ii) that such jurors "could not have laid aside these preformed opinions and rendered a verdict based on the evidence presented in court") (citing Irvin v. Dowd, 366 U.S. 717, 727, 723, 81 S.Ct. 1639, 1645, 1643, 6 L.Ed.2d 751 (1961)). As Moody failed to demonstrate that the trial court conducted insufficient voir dire, there is no reasonable argument that Moody's appellate counsel did not satisfy the Strickland standard in not raising this argument. Harrington, 131 S.Ct. at 788.

In an apparent attempt to overcome this deficiency, Moody now identifies in his amended petition juror M.W. as "biased." (Doc. 29 at ¶ 97.) However, as he never presented this factual allegation to the state courts, it is unexhausted and not entitled to relief in this Court. See Kelley, 377 F.3d at 1344 ("The prohibition against raising non-exhausted claims in federal court extends not only to broad legal theories of relief, but also to the specific assertions of fact that might support relief.").

3. The allegation that appellate counsel was ineffective for failing to assert claims of prosecutorial misconduct

Moody's third sub-claim of ineffective assistance of appellate counsel is further divided into four specific allegations of prosecutorial misconduct which Moody alleges should have been challenged by direct appeal counsel — 1) comments made during closing argument that Moody was a member of the Ku Klux Klan, 2) comments that Moody construes as criticism of his election not to testify at trial, 3) the introduction of victim impact evidence during the guilt phase of the trial, and 4) asking the jury to use their verdict to "send a message."

Moody asserted this claim, including each of the four sub-claims, in his Rule 32 petition, and the ACCA on appeal from the trial court's denial of relief determined that Moody's pleading was deficient under Alabama Rule of Criminal Procedure 32.3 and 32.6(b) and upheld the dismissal of the claim. Moody, 95 So.3d at 843-45. As noted, a state court ruling of deficient pleading is considered to have been on the merits such that this Court must deferentially review the state court's decision pursuant to § 2254(d). Boyd, 697 F.3d at 1331. However, Moody has not shown that the state court decision was contrary to, or an unreasonable application of, clearly established federal law.

In analyzing this claim, the ACCA first discussed the four specific instances of alleged prosecutorial misconduct that Moody argued direct appeal counsel should have challenged, writing as follows:

Moody further alleged in his petition:

Moody, 95 So.3d at 844-48.

The ACCA then went on to conclude that Moody failed to plead sufficient facts that would establish that these four claims could have been successfully presented by appellate counsel, as follows:

Moody, 95 So.3d at 848-49.

It was not contrary to federal law for the ACCA to so conclude. In Darden v. Wainwright, the Supreme Court explained that a prosecutor's improper comments will not be held to violate the Constitution unless they "so infected the trial with unfairness as to make the resulting conviction a denial of due process." 477 U.S. 168, 179-81, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986). In Darden, the Court instructed a reviewing court to consider any allegedly improper prosecutorial conduct or statements in the context of the particular trial, and not in a vacuum. See id. The Supreme Court has since described the Darden standard as "a very general one, leaving courts `more leeway... in reaching outcomes in case-by-case determinations....'" Parker v. Matthews, ___ U.S. ___, ___, 132 S.Ct. 2148, 2155, 183 L.Ed.2d 32 (2012) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 2149, 158 L.Ed.2d 938 (2004)). Here, Moody made only conclusory allegations in his state post conviction pleadings that made it virtually impossible for the state courts to determine how Moody was deprived of a fair trial by the allegedly improper prosecutorial conduct. For example, Moody did not, and still does not, explain how the prosecutor's argument that: "... the person who's sitting in this courtroom today in essence with his back turned thumbing his nose reading his little book is the person that committed the crime," could be construed as a comment on Moody's silence. The comment does not contain a direct comment on Moody's silence, and Moody offered no facts or argument to explain how this might be interpreted as an indirect comment on his silence. By merely identifying the particular statements made by the prosecutor but without providing the context in which they were made, the state courts could not determine if the comments rendered the trial so fundamentally unfair so as to result in a denial of due process. Darden, 477 U.S. at 181, 106 S.Ct. at 2471. Indeed, in Darden, the Supreme Court held that a closing argument more inflammatory than the comments Moody takes issue with here did not warrant habeas relief. See id. at 180 n. 11 & 12, 106 S.Ct. at 2471 n. 11 & 12 (prosecutor referred to the defendant as an "animal" and stated "I wish I could see [the defendant] with no face, blown away by a shotgun").

Importantly, Moody's allegations of prosecutorial misconduct are viewed through the lens of his ineffective assistance of appellate counsel claim, and this Court must merely decide whether there is any reasonable argument that appellate counsel's performance in failing to raise this issue on appeal violated Strickland. See Harrington, 131 S.Ct. at 788. Moody certainly never alleged before the state courts facts sufficient to show that appellate counsel performed deficiently or, that, had appellate counsel raised any of the identified claims on appeal, Moody's conviction for capital murder would have been overturned. Therefore, the ACCA's dismissal of this claim as facially insufficient was neither contrary to nor an unreasonable application of Strickland.

4. The allegation that appellate counsel was ineffective for failing to assert a claim that the State withheld evidence in violation of Brady v. Maryland

As previously discussed in part IV. I. of this opinion, Moody not only raised a substantive Brady claim for the first time in his Rule 32 proceedings, but he also alleged that his direct appeal counsel was ineffective for failing to allege a Brady violation on direct appeal. The ACCA, on appeal from the trial court's denial of Rule 32 relief, affirmed the trial court's ruling that Moody failed to meet Alabama's factual pleading requirements with regard to the ineffective assistance of appellate counsel claim. See Moody, 95 So.3d at 850-54; see also part IV. I. of this opinion, supra. This Court must thus conduct the deferential review of the ACCA's opinion pursuant to 28 U.S.C. § 2254(d). See Boyd, 697 F.3d at 1331.

The Court has already found that the ACCA's rejection of Moody's Brady claim was not contrary to or an unreasonable application of clearly established federal law or unreasonable in light of the record. See part IV. I., supra. As for his ineffective assistance of counsel claim, Moody's Rule 32 petition baldly asserted: "Appellate Counsel provided ineffective assistance of counsel in that he did not raise the Brady Issues set forth in the Petitioner/Defendant's Amended Petition for Relief from Judgment." See Moody, 95 So.3d at 850 (quoting Moody's Rule 32 petition). Taking Moody's conclusory allegations regarding alleged Brady material together with this assertion regarding counsel's performance, the ACCA determined that Moody's petition did not, on its face, establish either Strickland's performance or prejudice prong. Having reviewed Moody's petition, there is ample support in the record for the ACCA's conclusion that Moody failed to establish that appellate counsel performed deficiently or that, had appellate counsel argued that Brady violations had occurred, Moody's conviction and/or sentence would have been overturned on appeal. Habeas relief is not warranted on this ground.

5. The allegation that appellate counsel was ineffective for failing to raise a claim under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986), that the State used race-based peremptory strikes during voir dire

Moody now argues that his right to effective assistance of counsel was violated when appellate counsel did not raise a Batson claim on appeal, but Moody never presented this claim in his Rule 32 proceedings, and therefore, he has failed to exhaust his state court remedies, procedurally defaulting this claim. See O'Sullivan, 526 U.S. at 845, 119 S.Ct. at 1732.

Moody claims that the procedural default should be excused pursuant to the Supreme Court's decision in Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), which he interprets to mean that the ineffectiveness of his post-conviction counsel in failing to raise this ineffective-assistance-of-appellate-counsel claim in his Rule 32 petition constitutes cause and prejudice to excuse the default. However, Moody's reliance on Martinez is misplaced. As recently explained by the Eleventh Circuit:

Lambrix v. Sec'y, Fla. Dep't of Corr., 756 F.3d 1246, 1259-60 (11th Cir.2014).

Martinez addressed claims of ineffective assistance of trial counsel which were not raised in the initial post-conviction proceeding, not claims of ineffective assistance of appellate counsel. To the extent Moody suggests that his ineffective assistance of appellate counsel claim should also be considered under Martinez, this Court declines to do so. The Eleventh Circuit has not published an opinion on this issue, but the majority of the other circuits to have considered the issue have rejected a habeas petitioner's proposal to extend Martinez in the way that Moody suggests here. See Reed v. Stephens, 739 F.3d 753, 778 n. 16 (5th Cir.2014); In re Sepulvado, 707 F.3d 550, 554 & n. 8 (5th Cir.2013) (noting that Martinez, by its terms, applies only to ineffective-assistance-of-trial-counsel claims); Hodges v. Colson, 727 F.3d 517, 531 (6th Cir.2013) ("Under Martinez's unambiguous holding our previous understanding of Coleman in this regard is still the law — ineffective assistance of post-conviction counsel cannot supply cause for procedural default of a claim of ineffective assistance of appellate counsel."); Banks v. Workman, 692 F.3d 1133, 1148 (10th Cir.2012); but see Ha Van Nguyen v. Curry, 736 F.3d 1287, 1296 (9th Cir.2013) (holding that Martinez extends to Sixth Amendment ineffective-assistance-of-appellate-counsel claims). Moody argues that his appellate counsel should be considered like his trial counsel by this Court for purposes of determining whether Martinez applies, because Moody was "deprived of counsel at his trial." (Doc. 37 at 86.) To the contrary, Moody's decision to proceed pro se at his trial was his own. See parts IV. A. and B. of this opinion, supra. In sum, Martinez does not affect the procedural default of Moody's ineffective assistance of appellate counsel claim.

The Court also notes that were it not procedurally defaulted, at least portions of Moody's claim do not meet the heightened pleading requirements of federal habeas petitions. See, e.g., McFarland, 512 U.S. at 856, 114 S.Ct. at 2572. Moody baldly asserts that the "Jefferson County District Attorney's Office had a well-documented history of racial discrimination in jury selection" and that between 1992 and 1996, eight Jefferson County cases were reversed on Batson claims. (Doc. 29 at 49.) Moody never explains what these conclusory allegations have to do with his prosecution by the Office of Alabama Attorney General. For all of the reasons stated, habeas relief is not warranted on this claim.

6. The allegation that appellate counsel was ineffective for failing to assert a claim of ineffective assistance of trial counsel

Moody asserts that appellate counsel was ineffective for failing to raise each allegation of ineffective assistance of trial counsel enumerated in part V.A. of this opinion, supra. However, Moody never presented this claim in his Rule 32 proceedings, and therefore, he has failed to exhaust his state court remedies, procedurally defaulting this claim. See O'Sullivan, 526 U.S. at 845, 119 S.Ct. at 1732. As noted in the previous section, the Supreme Court's holding in Martinez v. Ryan does not apply to potentially excuse the default. Habeas relief is not warranted on this claim.

Even if it were not procedurally defaulted, the Court would find that the claim lacks merit. Moody blames appellate counsel for failing to raise these claims on appeal, and says counsel's failure to do so has already prejudiced him because the ACCA held his ineffective-assistance-of-pre-trial counsel claims to be defaulted in his post-conviction proceedings. See Doc. 29 at 50 ("When these claims of ineffective assistance of pre-trial counsel were presented to the Rule 32 trial court, that court determined that the claims were procedurally defaulted because appellate counsel had failed to raise the claims at the earliest practicable time — direct appeal.") (emphasis added)). Contrary to Moody's assertion, however, the ACCA in Moody's post-conviction proceedings actually found that, pursuant to Alabama law which provides that ineffective assistance of trial counsel claims should be raised in a motion for new trial if it is reasonable to do so,27 Moody should have first raised the claims during trial or in a post-trial motion, and only then pursued the claims on direct appeal:

Moody, 95 So.3d at 843 (emphasis in original). Because the ACCA placed the blame on Moody rather than on appellate counsel, Moody's claim that he has already met Strickland's prejudice prong lacks merit. Indeed, the ACCA's conclusion was appropriate in light of Faretta, which noted that "[t]he right of self-representation is not... a license not to comply with the relevant rules of procedural and substantive law." 422 U.S. at 834 n. 46, 95 S.Ct. at 2541 n. 46. Indeed, it was Moody who failed to file any post-judgment motions as required to present and preserve this claim, not appellate counsel. Because Moody cannot establish that he was prejudiced by appellate counsel's failure to raise the claim, this claim would fail, even if not procedurally defaulted. See id. ("... a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of `effective assistance of counsel'".).28

7. The allegation that appellate counsel was ineffective for failing to argue that Moody was deprived by the trial court of his Sixth Amendment right to counsel

Moody asserts that appellate counsel was ineffective for failing to raise each allegation concerning the trial court's alleged violation of his Sixth Amendment right to counsel contained in part IV. A. of this opinion, supra. However, Moody never presented this claim in his Rule 32 proceedings, and therefore, he has failed to exhaust his state court remedies, procedurally defaulting this claim. See O'Sullivan, 526 U.S. at 845, 119 S.Ct. at 1732. As noted previously, the Supreme Court's holding in Martinez v. Ryan does not apply to potentially excuse the default. Habeas relief is not warranted on this claim.

Even if not procedurally defaulted, this Court would deny the claim on its merits. Part IV. A. of this opinion details why Moody's assertions that the trial court deprived him of his right to counsel are wholly disproved by the record. The record clearly shows that after his request to proceed pro se was granted in August 1994, Moody spent the next two years delaying his trial by filing numerous pro se motions. The trial court diligently addressed Moody's concerns, repeatedly warning Moody of the dangers of rejecting the appointment of counsel and offering to appoint counsel for Moody, but Moody repeatedly and unequivocally refused. Moody's final request, made on the eve of trial, to delay it for over a year while newly-obtained counsel examined the case, was appropriately rejected by the trial court, as it had repeatedly told Moody that if he changed his mind and accepted counsel he would not be able to delay the trial.

The Supreme Court has recognized that "[e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 3308, 3313, 77 L.Ed.2d 987 (1983). Therefore, it is difficult for a defendant to show his counsel was ineffective for failing to raise certain issues on appeal, particularly if counsel did present other stronger issues. Smith v. Robbins, 528 U.S. 259, 287-88, 120 S.Ct. 746, 765-66, 145 L.Ed.2d 756 (2000). Here, Moody's appellate counsel chose to argue that the trial court's denial of a continuance on the eve of trial was an abuse of discretion under Alabama law. Considering the record, it was not deficient performance, and indeed it was reasonable strategy, for appellate counsel not to raise deprivation of counsel arguments based on the other allegations Moody sets forth in part IV. A., supra.

8. The allegation that appellate counsel was ineffective for failing to "adequately" argue that the trial court deprived Moody of his Sixth Amendment right to counsel when it failed to appoint standby counsel

Moody asserts that appellate counsel was ineffective for failing to "adequately" raise the argument he raises in part IV. B. of this opinion, supra, that the trial court violated his Sixth Amendment right to counsel by failing to appoint standby counsel at trial. However, Moody never presented this claim in his Rule 32 proceedings, and therefore, he has failed to exhaust his state court remedies, procedurally defaulting this claim. See O'Sullivan, 526 U.S. at 845, 119 S.Ct. at 1732. As noted, the Supreme Court's holding in Martinez v. Ryan does not apply to potentially excuse the default.

Even if this Court could consider the claim on its merits, Moody does not present facts that would entitle him to relief. See McFarland, 512 U.S. at 856, 114 S.Ct. at 2572 (heightened fact pleading required in federal habeas actions). Moody does not set forth in his petition what argument direct appeal counsel could have made that would have "adequately" asserted this claim. As discussed in part IV. B. of this opinion, supra, appellate counsel argued this point to the ACCA, but in purely state law terms. Presumably, then, Moody contends that direct appeal counsel should have couched the argument in federal constitutional terms. However, Moody cites Russaw v. State, 572 So.2d 1288 (Ala.Crim.App.1990), which holds that standby counsel is optional, as authority for his allegation that appellate counsel did not "adequately" assert the claim. The Russaw decision was the very same decision relied on by appellate counsel. (Vol. 76, Tab # R-46, p. 16.) Moody also indicates that appellate counsel's brief before the ACCA did not provide sufficient facts to "adequately" raise this claim. However, appellate counsel's brief before the ACCA was more factually descriptive than Moody's amended petition in this action is. Compare Vol. 76, Tab # R-46, p. 16 with Doc. 29, p. 22-23, ¶ 54. Appellate counsel was not ineffective for not adding case law that established that the appointment of standby counsel is optional, as that would not have strengthened Moody's direct appeal position. Further, considering that appellate counsel's direct appeal brief was more factually descriptive than the amended petition, Moody's claim that appellate counsel should have presented more facts to support the claim lacks merit.

9. The allegation that appellate counsel was ineffective for failing to argue that the trial court deprived Moody of his confrontation clause rights when it removed him from the courtroom for disruptive behavior during trial

Moody asserts that appellate counsel was ineffective for failing to raise the argument he raises in part IV. C. of this opinion, supra, that the trial court violated his Sixth Amendment right to confront witnesses when it removed him from the courtroom for disruptive behavior during his trial. However, Moody never presented this claim in his Rule 32 proceedings, and therefore, he has failed to exhaust his state court remedies, procedurally defaulting this claim. See O'Sullivan, 526 U.S. at 845, 119 S.Ct. at 1732. As noted, the Supreme Court's holding in Martinez v. Ryan does not apply to potentially excuse the default.

Even if this Court were to consider the claim on its merits, Moody does not present facts that would entitle him to relief. See McFarland, 512 U.S. at 856, 114 S.Ct. at 2572. The entirety of Moody's allegation of error is that the trial court removed him from the proceedings "based only on [Moody's] assertion that he would vigorously defend his Constitutional right[s]." (Doc. 29, p. 25, ¶ 59.) As discussed in part VI. C. of this opinion, supra, that assertion is disproved by the record. Additionally, Moody acknowledges that it is permissible for a court to remove an unruly defendant when the defendant engages in disruptive and disorderly behavior. (Doc. 29, p. 23-25, ¶¶ 55-58.) Moody has not set forth any facts in support of his claim that he was not being disruptive and disorderly. This failing prevents Moody from being able to establish that he was prejudiced under Strickland by appellate counsel's failure to raise the claim. Considering the record combined with Moody's admission that defendants can be removed for disruptive behavior, appellate counsel could not be ineffective for failing to raise this argument.

10. The allegation that the foregoing nine sub-claims, considered collectively, establish a violation of Moody's constitutional right to effective assistance of appellate counsel

Moody argues that the collective effect of the foregoing nine sub-claims violated his right to the effective assistance of appellate counsel. To the same extent portions of the foregoing claims were found to be procedurally barred under state law, this claim, too, is procedurally barred. Further, this particular claim, that these nine sub-claims constitute error when considered collectively, was never presented to the state courts during post-conviction proceedings. As such, Moody did not exhaust his state court remedies and this claim is now procedurally barred.

VI. MOODY'S CLAIM THAT HE IS "ACTUALLY INNOCENT"

Moody's final claim is that he "actually innocent" of capital murder. He offers a litany of "presently known facts" that he says establish his innocence but, as he has done with several other claims, he requests more time to investigate in order to develop additional facts to support this claim.29 These "presently known facts" are in large part the same as those he raised in support of his Brady claim in post-conviction proceedings and again in his Brady claim here: allegations concerning 1) DNA analysis of the saliva on the envelopes used to mail the letters with the bombs; 2) threatening letters sent from Texas with the same numerical code as used in the threatening letters; 3) three unexploded pipe bombs found attached to electricity poles in Los Angeles of similar construction to the four December 1989 pipe bombs; 4) the fact that Mary Ann and Robert Wayne O'Ferrell possessed the typewriter on which the letters included with the bomb that killed Judge Vance were typed; 5) a statement made to investigators that skeet shooter Mark McSwiggin purchased all of the Red Dot gunpowder in the store in Griffin, Georgia, that was attributed to Moody; and 6) the assertions made in the Whitehurst Memorandum challenging the professional conduct of the FBI examiners who testified at Moody's federal trial.

The Court first notes that if Moody is advancing this claim as a freestanding constitutional claim, he must overcome several substantial hurdles standing in the way of its success. First, he nowhere alleges a constitutional violation in connection with the claim. As such, his "actual innocence" claim cannot likely by itself provide a basis for habeas relief. See 28 U.S.C. § 2254(a) (requiring a constitutional claim). Even if he had connected it with a constitutional violation, "it is not clear at all under the case law whether ... a freestanding actual innocence claim [] is viable on federal habeas corpus review." In re Davis, 565 F.3d 810, 816-17 (11th Cir.2009). In Herrera v. Collins, 506 U.S. 390, 419, 113 S.Ct. 853, 870, 122 L.Ed.2d 203 (1993), the petitioner advanced a claim of actual innocence to support a novel substantive constitutional claim, i.e., that the execution of an innocent person would violate the Eighth Amendment. Under the petitioner's theory, even if the proceedings that had resulted in his conviction and sentence were entirely fair and error-free, his innocence would render his execution a "constitutionally intolerable event." Id. The Supreme Court assumed "for the sake of argument in deciding [the] case, that in a capital case a truly persuasive demonstration of `actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were nota state avenue open to process such a claim." Id. at 417, 113 S.Ct. at 869. After Herrera, the Eleventh Circuit recognized the possibility of freestanding actual innocence claims, see Felker v. Turpin, 83 F.3d 1303, 1312 (11th Cir.1996), cert. granted, 517 U.S. 1182, 116 S.Ct. 1588, 134 L.Ed.2d 685 (1996) and cert. dismissed, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996), ("[Herrera] left open the difficult question of whether federal habeas courts may entertain convincing claims of actual innocence."), but also recognized that "[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding." Brownlee v. Haley, 306 F.3d 1043, 1065 (11th Cir.2002) (quoting Herrera, 506 U.S. at 400, 113 S.Ct. at 860).

The second hurdle is that, assuming solely for argument that Moody may assert his "actual innocence" as a claim devoid of any asserted constitutional violation, the claim is procedurally defaulted due to Moody's failure to exhaust his state court remedies. Moody raised a claim of "factual innocence" before the Rule 32 courts, arguing that he is entitled to relief "even if [his] claim of factual innocence is not connected to a constitutional violation." Moody, 95 So.3d at 854 (quoting Moody's Rule 32 petition). In that forum, he cited as support for his claim some but not all of the same assertions he makes here. See id. The ACCA construed the claim as one of "newly discovered evidence" pursuant to Alabama Rule of Criminal Procedure 32.1(e) and affirmed the trial court's holding that the claim was due to be dismissed as Moody did not plead all five elements of a newly discovered evidence claim as enumerated in that rule. Id. at 856.30 In his Rule 32 petition, Moody never alleged that the O'Ferrells possessed the typewriter on which the letters were typed or made the assertions concerning alleged misconduct by federal crime and explosives laboratories. (Compare C.R. Vol. 79, Tab # R-58, p. 270-71 with Doc. 29, p. 75-76.) Moody has not stated that these allegations, which he omitted from his Rule 32 petition, were not known by him at the time; in fact he included the allegations concerning the Whitehurst Memorandum in support of his Brady claim in the same petition. If Moody intends his actual innocence claim to be a freestanding claim, then there is no reason why it should not be subject to the exhaustion requirements contained in 28 U.S.C. § 2254, just as with any other constitutional claim. Moody's failure to present the same claim before the state courts that he presents here procedurally defaults the claim, even if it were held to be cognizable in this federal habeas proceeding. See Kelley, 377 F.3d at 1344 ("[T]he prohibition against raising non-exhausted claims in federal court extends not only to broad legal theories of relief, but also to the specific assertions of fact that might support relief.").

Moody's other option in advancing this claim is as a "gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claims considered on the merits." Schlup, 513 U.S. at 315, 115 S.Ct. at 861 (quoting Herrera, 506 U.S. at 404, 113 S.Ct. at 862); see also House v. Bell, 547 U.S. 518, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006). In other words, because Moody has been unable to establish "cause and prejudice" sufficient to excuse the procedural default of many of his claims in this petition, he "may obtain review of his constitutional claims only if he falls within the `narrow class of cases... implicating a fundamental miscarriage of justice.'" Schlup, 513 U.S. at 314-15, 115 S.Ct. at 861 (quoting McCleskey, 499 U.S. at 494, 111 S.Ct. at 1470).

As here, when a petitioner who has been sentenced to death raises a claim of actual innocence to avoid a procedural bar to the consideration of the merits of his constitutional claims, he must show that "the constitutional error `probably resulted' in the conviction of one who was actually innocent." Id. at 326-27, 115 S.Ct. at 867 (quoting Carrier, 477 U.S. at 496, 106 S.Ct. at 2649-50). To pass through the gateway, a petitioner must submit "new" evidence which, when considered together with all of the evidence admitted at trial, both adverse and exulpatory, would leave a reasonable doubt in any reasonable juror's mind. Id. at 324, 327-28, 115 S.Ct. at 865, 867. "To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Id. at 327, 115 S.Ct. at 867. This standard thus "ensures that petitioner's case is truly `extraordinary,' McCleskey, 499 U.S. at 494, 111 S.Ct. at 1470, while still providing petitioner a meaningful avenue by which to avoid manifest injustice." Id. Thus, only if this Court concludes that it is more likely than not that no reasonable juror would have convicted Moody in light of the new evidence, may it reach the merits of the constitutional claims that it found to be procedurally barred. Id.

The allegations Moody proffers in support of his innocence consist of mere conclusions without any evidentiary support. Indeed, there are seven paragraphs in the amended petition devoted to "facts" that allegedly establish Moody's innocence. For example, the amended petition states:

(Doc. 29 at 75.) This and the other allegations contain no citations to any evidence that would support the statements contained therein or would otherwise direct the Court to a place that it could find evidentiary support for the claims. There are no affidavits from witnesses who would provide testimony in support of the statements, or even the names of witnesses who could provide testimony. There is no explanation of how this "evidence" was discovered or when it was discovered. The portion of the amended petition devoted to Moody's Brady claim, based on many of the same allegations, contains similar conclusory statements with no support.31 Moody's reply brief does not address the claim at all; merely seeking additional time to "investigate [the] claims." (Doc. 37 at 90.) These failings wholly prevent this Court from being able to test the reliability of these statements in order to determine whether a reasonable juror, presented with this purportedly "new evidence" along with the evidence at trial, would still vote to convict Moody of capital murder. While the Supreme Court has warned that district courts faced with actual innocence claims do not necessarily need to determine whether the new evidence would be "admitted under rules of admissibility that would govern at trial," the Schlup standard nonetheless is that the new evidence must be "reliable" — "whether it be exculpatory scientific evidence, trustworthy scientific accounts, or critical physical evidence." House, 547 U.S. at 537-38, 126 S.Ct. at 2077. In short, the Court has no way of testing the reliability of these statements. In this way, Moody has also failed to satisfy the heightened pleading requirements in habeas corpus cases. See McFarland, 512 U.S. at 856, 114 S.Ct. at 2572. As explained by the Eleventh Circuit:

Borden v. Allen, 646 F.3d 785, 810 (11th Cir.2011). Even though Moody has been raising the same assertions in support of his actual innocence since his Rule 32 proceedings (and indeed, even before his trial) the continued conclusory nature of the allegations indicates to this Court that it is unlikely that Moody will ever be able to find evidentiary support for them.32

Moreover, even if the Court were to take these seven allegations at face value, they do not present the type of strong, compelling argument that would create a colorable claim of factual innocence. The petitioner in House met the Schlup threshold based on substantial evidence pointing to a different suspect, coupled with new, reliable DNA and forensic evidence undermining the central proof of semen and blood. See House, 547 U.S. at 554, 126 S.Ct. at 2086. Even then, the Supreme Court noted the "issue is close" as to whether the petitioner met the Schlup standard of proof. Id. In contrast, Moody has produced unverified statements that do not even establish an alibi. On the other hand, the evidence at trial provided ample support for Moody's conviction. The State offered compelling evidence of the striking similarities among the four December 1989 pipe bombs including the one that killed Judge Vance; eyewitness testimony from Moody's former girlfriend tying the bombs together and to Moody, including her testimony that she purchased most of the components of the bombs for Moody and inculpatory statements made by Moody himself with regard to the bombs; eyewitness testimony that Moody purchased the gunpowder used in the bombs; explosives experts' testimony tying the bombs together and to Moody's 1972 bomb; physical evidence related to the bombs recovered from Moody's home; eyewitness testimony tying Moody to the typewriter used to type the letters; and Moody's recorded jailhouse statements inculpating himself in the crimes. In the face of this evidence, much of the "actual innocence" evidence is more akin to impeachment evidence, and none of it casts serious doubt on Moody's guilt. For example, the fact that threatening letters were also mailed in Texas and similar bombs were also found in California does not mean that Moody did not write the letters associated with the December 1989 bombs or make the bombs. The fact that someone told federal agents that another person purchased all of the gunpowder at the Griffin, Georgia gun shop must be weighed against eyewitness testimony from two individuals who saw Moody purchase the gunpowder used in the bombs at that store. The fact that the O'Ferrells possessed the typewriter on which the letter were written does not mean that Moody did not own it at one point, as testified to by Moody's ex-girlfriend. The assertions of professional misconduct contained in the Whitehurst Memorandum might serve to case doubt on the credibility of the explosives experts, but nothing in that document conclusively establishes that Moody did not commit the crimes. In short, Moody's allegations do not establish that "more likely than not any reasonable juror would have reasonable doubt." House, 547 U.S. at 538, 126 S.Ct. at 2077. Moody cannot show a fundamental miscarriage of justice would result from application of the procedural bars as found by this Court.

VII. CONCLUSION

For the foregoing reasons, Moody's petition for habeas relief is due to be denied. This Court may issue a certificate of appealability "only if the applicant has a made a substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2). To make such a showing, a "petitioner must demonstrate that reasonable jurist would find the district court's assessment of the constitutional claims debatable and wrong," Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000), or that "the issues presented were adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (internal quotations omitted). This Court finds Moody's claims do not satisfy either standard.

A final judgment will be entered.