CHARLES R. BUTLER, Jr., Senior District Judge.
At the Court's direction, the parties, some time ago, submitted briefs addressing procedural default and the need for an evidentiary hearing. This order addresses procedural default and other grounds for dismissal raised by Respondent.
In 1990, Petitioner Gary Davis Hart II was convicted of capital murder in the Circuit Court of Mobile County, Alabama and was sentenced to death. He appealed, and both his sentence and conviction were affirmed by the Alabama Court of Criminal Appeals. Hart v. State, 612 So.2d 520 (Ala. Crim. App. 1992). That decision was affirmed by the Alabama Supreme Court. Ex Parte Hart, 612 So.2d 536 (Ala. 1992). Hart's petition for certiorari was denied by the United States Supreme Court. Hart v. Alabama, 508 U.S. 953 (1993). Following the conclusion of his direct appeal, Hart filed a petition for postconviction relief pursuant to Rule 32 of the Alabama Rules of Criminal Procedure. After a hearing, the trial court denied the petition. Hart appealed, but the Alabama Court of Criminal Appeals affirmed the lower court's decision. Hart v. State, 778 So.2d 869 (Ala. Crim. App. 1999) (unpubl.), cert. denied, 800 So.2d 140 (Ala. 2000).
On March 28, 2001, Hart filed the instant petition for habeas corpus pursuant to 28 U.S.C. § 2254. While the petition was pending, the United States Supreme Court decided Roper v. Simmons, 543 U.S. 551 (2005), which held that the imposition of the death penalty on persons under 18 when the crime was committed violated the Eighth and Fourteenth Amendments. Thereafter, the Court entered an order directing the Respondent to show cause why the petition should not be granted in part, "insofar as petitioner seeks to vacate the sentence imposed on the ground that it violates the Eighth Amendment's prohibition on cruel and unusual punishment." (Ord., Doc. 40.) In response, Respondent acknowledged that Petitioner, who was 16 years old at the time the murder was committed, was due to be resentenced to life imprisonment without the possibility of parole based on the Supreme Court's ruling in Simmons. (Rsp., Doc. 41.) The parties agreed that the case should be remanded to the Circuit Court of Mobile County for resentencing. Accordingly, this Court granted the petition, in part, and remanded the matter to the Circuit Court of Mobile County for resentencing, but retained jurisdiction to decide any pending guilt-phase claims properly raised by the Petitioner. (Remand Ord., Doc. 43.) On August 16, 2005, Petitioner was resentenced to life in prison without the possibility of parole, the only other sentence available at that time under Alabama law.
In its opinion on direct appeal, the Alabama Court of Criminal Appeals summarized the evidence presented at trial as follows:
Hart v. State, 612 So.2d 520, 523 (Ala. Crim. App. 1992).
Attorneys Arthur Madden and Vader A. (Al) Pennington were appointed to represent Petitioner Gary Davis Hart following his indictment on a charge of capital murder. (R. Vol. 1, Tab R-1 at 9-10.) Shortly thereafter, counsel filed a Request to be Treated as a Youthful Offender. Id. 11. A Youthful Offender Report, including a psychological evaluation, was submitted by the Alabama Department of Probation and Parole. Id. 19. After a hearing, at which defense counsel called two character witnesses, the trial court denied Youthful Offender status. (R. Vol. 2, Tab R-4.) Thereafter, defense counsel filed a motion for change of venue, which was denied, as well as a motion for funds to hire experts, which was granted in part and denied in part. (R. Vol. 1, Tab R-1 at 33-38; R. Vol. 2, Tab R-7.) Defense counsel filed various pretrial motions regarding jury selection as well as motions in limine.
Prior to appointment of counsel, the trial court entered a standard discovery order. (R. Vol. 1, Tab R-1 at 12-13.) That order required the District Attorney to turn over to the defendant's attorney at arraignment various forms of evidence, including all statements made by the defendant (both written and oral); any and all exculpatory evidence; all physical evidence to be offered into evidence at trial; and results of scientific tests, experiments or examinations. (Id.) The trial court also granted the State's motion for discovery, which requested "copies of photographs, documents and all other tangible documents" defendant intended to introduce into evidence at trial as well as "[c]opies of any results of reports of physical or mental examinations, and of scientific tests or experiments" to be introduced into evidence at trial or which were prepared by a witness and related to the witness's testimony. (Id. 49-51.)
At trial, the State presented testimony from three L&N employees who had witnessed the shooting and who identified Hart as the shooter. The State also presented testimony from other employees who saw Hart and/or his accomplice at the restaurant shortly before or shortly after the shooting. Other witnesses included several police officers who located the two nearby within a few hours of the shooting and took them into custody. The State also presented the testimony of the state medical examiner and a firearms expert.
The defense did not deny that Hart was the shooter or that the shooting took place during the course of a robbery. The defense strategy was to portray the shooting as accidental. Hart testified in his own defense that he did not intend to shoot anyone and that he did not pull the trigger. Through Hart's testimony, the defense established that Hart had a congenital condition that caused weakness in his right hand and arm. The defense elicited testimony from the State's firearms expert that the firearm Hart used was of inferior quality and, when cocked, required less than 2 pounds of pressure to pull the trigger.
Hart raised numerous issues on direct appeal.
After exhausting his direct appeal, Hart filed a petition for relief from judgment pursuant to Rule 32 of the Alabama Rules of Criminal Procedure ("state habeas").
Hart filed the instant habeas petition on March 28, 2001. As noted above, supra at 2-3, this action was remanded to the sentencing court by agreement for resentencing pursuant to Roper. The state court imposed a sentence of life without parole on August 16, 2005. Petitioner's guilt-phase claims are ripe for review.
The following twenty-four guilt-phase claims
A. Ineffective assistance of counsel based on the following:
B. Improper denial of youthful offender status.
D. The jury foreperson's misconduct and racial bias deprived Hart of his right to trial by an impartial tribunal.
E. The trial court's discovery rulings violated Hart's constitutional rights under the Sixth Amendment.
F. Prosecutorial misconduct violated Hart's constitutional right to a fair trial.
J. Violations of the Sixth, Eighth and Fourteenth Amendment resulting from the following improper jury instructions:
K. Constitutional violations occurred during voir dire, to wit:
L. The evidence was constitutionally insufficient to sustain a guilty verdict because:
N. The state suppressed favorable evidence in violation of Brady v. Maryland.
Due to the number and complexity of the claims and issues, the Court divided the briefing in the case into two stages. Stage I is intended to address procedural default and the need for an evidentiary hearing, with the merits of all remaining to be addressed at Stage II. In the Stage I brief, Respondent has asserted an additional matter for resolution. Respondent argues that the Court should dismiss certain claims because those claims raise solely issues of state law and therefore fail to state a claim under 28 U.S.C. § 2254. Below, the Court will address Respondent's "state law only" argument, then proceed to a review of the claims Respondent argues are subject to procedural default.
Respondent argues that the Court should dismiss several claims (B, D, E. G. H, J, M, O and P) "because they present only questions of state law" and therefore fail to state a claim for relief under 28 U.S.C.S § 2254(a). Respondent points out, correctly, that "[f]ederal habeas corpus does not lie to review errors, if any, under state law." (Resp't's Br. 35, Doc. 38.) In support of this proposition, Respondent cites, first, federal habeas cases in which the petition raised a claim that was based purely on state law. See Pulley v. Harris, 456 U.S. 37, 41 (1984); Carrizales v. Wainwright, 699 F.2d 1053, 1055 (1983). That is not the case here. Each of the claims identified by the Respondent is framed as a federal constitutional violation. Respondent asserts that the claims are purely issues of state law because the state court, either on direct appeal or collateral review, resolved these or similar claims based solely on state law. But it is the federal habeas petition, not a state court opinion, that determines the nature of the claim and whether it raises a federal constitutional issue. Cf. Dye v. Hofbauer, 546 U.S. 2 (2005) (per curiam) (state court's failure to mention a federal claim does not mean federal claim was not presented to it).
Each of the challenged claims raises one or more issues of federal constitutional law. Claim B asserts that Petitioner was "improperly denied Youthful Offender treatment" because the hearing violated Petitioner's constitutional rights to confrontation and to avoid self-incrimination. (Pet. ¶¶ 128-131, Doc. 1.) Claim D(1) alleges that the jury foreperson's racial bias deprived Petitioner of his constitutional right to a fair trial. (Id. ¶¶ 146-47). Claim J asserts that the trial court's failure to properly instruct the jury on lesser-included offenses violated the Sixth, Eighth and Fourteenth Amendments. (Id. subheading J.) Finally, Claim P alleges that the introduction of autopsy photographs violated Petitioner's rights to due process and to a fair trial guaranteed by the Sixth and Fourteenth Amendments. (Id. subheading P.) Because the claims, as presented in the Petition, are not based solely on state law, Respondent's argument for dismissal fails.
Respondent argues that the doctrine of procedural default should prevent the Court from reaching the merits of all or part the following guilt-phase claims: A2, A4, A5, A6, A7, A8, A9, A10, A13, F, J, K1, K2, K4, K5, L, and N. Petitioner counters that all of the claims were raised in state court and were fully exhausted. Therefore, Petitioner asserts that none are procedurally defaulted. Before addressing the applicability of procedural default as to each claim, the Court sets out the law of procedural default and related principles.
The doctrine of procedural default, as it relates to petitions filed under 28 U.S.C. § 2254, arises from principles of comity and federalism. Francis v. Henderson, 425 U.S. 536, 541 (1976). A federal court
Harris v. Reed, 489 U.S. 255, 260-61 (1989) (internal citations and quotations omitted). Generally, violation of a state procedural rule is adequate to foreclose federal review if the rule is "firmly established and regularly followed." Lee v. Kemna, 534 U.S. 362, 376 (2002). A state court's decision is independent unless the resolution of the state-law issue depends on a federal constitutional ruling. Stewart v. Smith, 536 U.S. 856, 860 (2002). While a federal court is generally precluded from reviewing the merits of a procedurally defaulted claim, there are exceptions to the rule.
Procedural default may be overcome in one of two ways. First the claim may be considered on the merits if the petitioner and show both cause for this failure to comply with the state procedural rule and prejudice resulting from the default. Murray v. Carrier, 477 U.S. 478 (1986). "[C]ause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Id. at 488. Prejudice, in this context, means a reasonable probability that the outcome would have been different. Strickler v. Greene, 527 U.S. 263 (1999). The second circumstance under which a procedurally defaulted claim may be considered is if the failure to review the claim would result in a fundamental miscarriage of justice." Dugger v. Adams, 489 U.S. 401, 415 (1989).
While procedural default obviously applies to federal constitutional claims that were denied by the state court on procedural grounds, it may also apply to federal constitutional claims that were never raised at all in state court. In the latter instance, the doctrines of procedural default and exhaustion converge. "Exhaustion of state remedies requires that the state prisoner `fairly present[t] federal claims to the state court in order to give the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.'" Snowden v. Singletary, 135 F.3d 732, 735 (1998) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)). Generally, unexhausted claims must be returned to the state court for consideration on the merits unless the federal court determines that exhaustion would be futile. Id. at 736. If state procedural rules would preclude review of the claim on the merits, then exhaustion would be futile. Id. Thus, a federal court may conclude that an unexhausted claim would be procedurally barred because of the petitioner's failure to comply with state procedure. Id. at 737. In that instance, the doctrine of procedural default would apply even though the state court had never specifically invoked the state procedural rule.
To summarize, a federal court will not consider the merits of a federal constitutional claim on habeas review if that claim has been procedurally defaulted. If the constitutional claim asserted by the petition was presented and denied by the state court on adequate and independent state-law grounds, then procedural default applies. If the claim was never raised in state court but now would be barred from consideration by state procedural rules, the procedural default also applies. A procedurally defaulted claim may nonetheless be considered on the merits if petitioner can demonstrate either (1) cause for and prejudice from his failure to raise the issue in state court or (2) that failure to consider the merits would result in a fundamental miscarriage of justice.
Respondent argues that this claim was not exhausted in state court because it was not raised on appeal either on direct appeal or collateral attack. Because consideration would be barred by state procedural rules, Respondent asserts, the claim is procedurally defaulted. Petitioner's sole response is that the claim was exhausted because it was raised in the Rule 32 appeal and, for that reason, is not procedurally barred.
The Eleventh Circuit has explained what the exhaustion requirement entails as follows:
McNair v. Campbell, 416 F.3d 1291, 1302 (11
Petitioner cites two separate ineffective assistance of counsel claims presented to the state appellate court. The first claim was asserted under subheading A: "Hart was deprived of his right to a fair trial by Counsel's failure to effectively represent him at the pre-trial transfer hearing." (R. Vol. 22 Tab R-55 at 6.) On pages 6-9 of his Rule 32 brief, he argued that counsel rendered constitutionally ineffective assistance at the pretrial transfer hearing because his failure to investigate or to introduce any evidence at the transfer hearing was the result of counsel's incompetence as opposed to a strategic decision. (Id. at 6-9.) The only mention of inadequate funding was made under subheading F, which can best be described as a catch-all subheading: "Gary Hart was deprived of a fair trial by counsel's failure to otherwise protect his interests before and during the trial." (Id. 21.) Petitioner's entire argument regarding insufficient funding was as follows:
(Id.)
Petitioner cannot satisfy the exhaustion requirement by cherry-picking portions of separate and distinct state court claims. "[T]o preserve a claim of ineffective assistance of counsel for federal review, the habeas petitioner must assert this theory of relief and transparently present the state courts with the specific acts or omissions of his lawyers that resulted in prejudice." Kelley v. Sect'y for the Dept. of Corrections, 377 F.3d 1317, 1344 (11
This claim is similar to the claim above, except that it based on counsel's performance at the Youthful Offender hearing, rather than the pretrial transfer hearing. As with he did with that claim, Petitioner has pulled together unrelated portions of his Rule 32 appellate brief in an effort to demonstrate exhaustion. Petitioner cites his claim of ineffective assistance of counsel at the youthful offender hearing on pages 14-16 of that brief along with his generalized ineffective assistance/insufficient funding claim asserted separately on page 21. (R. Vol. 22 Tab R-55 at 14-16 & 21.) For the same reasons cited supra at 12-15, this claim is not exhausted and, therefore, is procedurally defaulted.
In this claim, Petitioner asserts that counsel failed to subpoena members of the media to testify regarding the extent of pretrial publicity, failed to properly question jurors about their exposure to publicity, and failed to obtain a change of venue. Respondent argues that this is not the same ineffective assistance/pretrial publicity claim asserted in the amended Rule 32 petition and on appeal. Petitioner, on the other hand, points out that the claim was "made on page 10 of [his] Rule 32 Brief . . . to the Alabama Court of Criminal Appeals." (Pet'r's Br. 25, Doc. 37.) As Petitioner acknowledges, claims raised in the Rule 32 petition
Only one factual basis supporting this claim was raised in
Petitioner alleges that counsel rendered ineffective assistance because "the trial court refused to grant him funds to conduct a survey of the community" thus rendering counsel unable to protect Petitioner from prejudicial pretrial publicity. (Pet. ¶¶ 68-69.) According to the petition, counsel's deficient performance in this regard made it impossible for Petitioner to receive a fair trial and resulted in his conviction. (Id. ¶ 69.) Respondent argues that this claim was not raised in Petitioner's Rule 32 appeal. Petitioner counters that "the substance of the claim" was raised on appeal, but once again Petitioner pulls language from two disparate claims and attempts to pass them off as the claim now asserted. First, he cites his claim that counsel failed to protect him from pretrial publicity on page 10 of his Rule 32 brief, which makes no mention of financial limitations. (R. Vol. 22 Tab R-55 at 10.) Next, he cites his argument on page 66 of the same brief, in support of his claim that the trial court's discovery rulings deprived him of the fair trial. (Id. at 66.) One of the rulings cited was the Court's denial of his motion for funds to conduct a survey regarding the effects of pretrial publicity. No powers of legal intuition are strong enough to decipher one claim from these two wholly unrelated assertions set apart by more than 50 pages. This claim was not exhausted and is, therefore, procedurally defaulted.
Respondent argues that this claims is partially defaulted in that certain factual averments set forth in support of this claim were not raised fully exhausted. Specifically, Respondent asserts that the facts asserted in paragraphs 73 and 74 were not raised in either Amended Rule 32 Petition or in the Rule 32 appeal and that the facts asserted in paragraph 76 were not asserted in the Rule 32 appeal. Respondent is partially correct. In paragraph 73, Petitioner asserts that counsel was ineffective because he failed "to make a diligent examination of the venire pool prior to jury selection in support of a
However, paragraphs 74 and 76, have not been exhausted and are procedurally defaulted. First, Petitioner does not dispute Respondent's claim that Paragraph 76 is procedurally defaulted.
The question presented is whether paragraph 85—which asserts that defense counsel, due to lack of funds, was "unable to investigate [Petitioner's] background to discover and offer evidence of [his] drug and alcohol use on the night of the crime [to negate intent]"—is procedurally defaulted. Petitioner admits that this factual basis was never specifically raised in state court but, citing Vasquez v. Hillery, 474 U.S. 254 (1986), argues that the inclusion of additional facts in support of an otherwise exhausted claim does not preclude habeas review. In that case, however, the federal court had requested additional evidence regarding the grand jury's racial makeup which, in turn, was related to the prisoner's "equal protection challenge to the grand jury that indicted him." Id. 474 U.S. at 256. The Supreme Court rejected the state's objection on exhaustion grounds, stating: "We have never held that presentation of additional facts to the district court, pursuant to that court's directions, evades the exhaustion requirement when the prisoner has presented the substance of his claim to the state courts." Id. 474 U.S. 257-58.
These are not merely new facts supporting a claim presented to the state court. This is an entirely new claim. The basis of Petitioner's financial limitations/ineffective assistance before trial claim in state court was counsel's failure to obtain and present a firearms expert (regarding the sensitivity of the trigger) and a medical expert (regarding the medical condition of his arm) both of which were relevant to his claim that the gun discharged accidentally. (R. Vol. Tab R-55 at 13-16.) Counsel's alleged failure to discover and present evidence of drug and alcohol abuse on the night of the crime does not constitute "additional facts" in support of counsel's alleged failure to obtain expert testimony. The state court did not have a full and fair opportunity to consider this new rendition of Petitioner's ineffective assistance of counsel claim. Thus, Petitioner's claim that counsel's failure to discover and present evidence of Petitioner's drug and alcohol use amounted to ineffective assistance is unexhausted and is procedurally barred. The remainder of Claim A9 has been exhausted and is not procedurally barred.
Within this claim, the Petition alleges a laundry list—twenty-four separate instances—of ineffective assistance of counsel at trial. Respondent asserts that none of these specific instances are exhausted because they were not fully presented for review at the Rule 32 stage—some because they were not raised in the either the Amended Rule 32 Petition or on appeal and others because they were not raised on appeal. Petitioner insists that the issues were raised and exhausted and points to his Rule 32 appellate brief. But, once again, Petitioner attempts to satisfy the exhaustion requirement by pointing to general legal principles asserted in state court along with "`makeshift needles in the haystack of the state court record.'" Kelley, 377 F.3d at 1345 (quoting Martens v. Shannon, 836 F.2d 715, 717 (1
Upon careful review of the pleadings, the Court concludes that two of these subclaims have been exhausted and are, therefore, preserved for review. Petitioner did argue in his Rule 32 appeal that "[d]efense counsel failed to timely interject appropriate objections at trial, thereby resulting in prejudicial and improper statements by the prosecution to the jury." (R. Vol. 22 Tab R-55 at 21.) Although no supporting evidence was discussed, the brief noted that "[t]hese omissions were described in the Rule 32 Petition at v1 pp. 34-38." In other words, the appellate brief incorporated by specific reference certain claims asserted in the Amended Rule 32 Petition. However, only three guilt-phase omissions by counsel were asserted in the cited pages of the Amended Rule 32 Petition, and only two of those are reasserted in the federal petition. The first is counsel's failure to object to the State's misstatement of the law, implying that the burden of proof was on the Defendant by stating that intent was inferred. (R. Vol. 8 Tab R-48 at 35.) This claim is equivalent to the subclaim asserted in paragraph 95 of the federal petition, which alleges that counsel rendered ineffective assistance by "fail[ing] to object to the State's mischaracterization of . . . the law regarding intent."
The Court finds that the two subclaims cited above, found in paragraphs 95 and 102 of the federal petition, are exhausted and are not procedurally barred. The remaining guilt-phase subclaims set forth in section A10 have not been exhausted and are, therefore, procedurally barred.
Petitioner sets forth two alternative responses to Respondent's argument that this claim is unexhausted. First, Petitioner argues that an assertion of cumulative error is a legal argument, not an independent claim,
Petitioner argues, alternatively, that he did present this claim to the state court for review and points to the following statement in his Rule 32 appellate brief:
(R. Vol. 22 Tab R-55 at 6.) Even assuming the inclusion of that argument could be considered an ineffective assistance claim based on cumulative errors,
Respondent argues that this claim is partially defaulted. Specifically, Respondent argues that Petitioner failed to exhaust that portion of the claim found in paragraph 128, which states:
(Pet., Doc. 1, ¶ 128.) Petitioner argues that this claim was raised on direct appeal, before both the Alabama Court of Criminal Appeals and the Alabama Supreme Court and cites to portions of briefs submitted to each court. However, the cited portions of these briefs cited do not support Petitioner's claim. Neither mentions hearsay testimony introduced at the Youthful Offender hearing. Both appellate briefs do make an argument regarding hearsay in the Youthful Offender report, but the evidence cited as hearsay is not the same evidence that Petitioner relies on here. On appeal, Petitioner argued that the psychological evaluation appended to the report amounted to inadmissible hearsay. (R. Vol. 5 Tab R-32 at 63-65; Vol. 6 Tab R-32 at 98.) Here, Petitioner argues that the statement of his former high school principal amounted to hearsay. The legal argument may be the same, but the factual basis clearly is not. Consequently, Petitioner has failed to exhaust the portion of Claim B found in paragraph 128, and that claim is procedurally defaulted. The remainder of Claim B is ripe for review on the merits.
Respondent initially argued that this claim was partially defaulted in that three of the factual or legal bases asserted in support of this claim—found in paragraphs 158, 163 & 167—have not been exhausted because they were not raised on direct appeal. However, Respondent subsequently abandoned some of those arguments after Petitioner cited portions of the record that contradicted Respondent's assertions. First, Petitioner's prosecutorial misconduct claim in paragraph 158 of the Petition—that he was deprived of a fair trial because "[t]he State used its peremptory challenges in a discriminatory manner, depriving [Hart] of his right to be tried by a jury of his peers"—was raised on direct appeal as a prosecutorial misconduct claim. (R. Vol. 5, Tab R-32 at 83.) Respondent now admits as much.
Finally, Respondent argues that the claim in paragraph 167—that "[t]he State's repeated remarks regarding the age of the victim were an attempt to prejudice the jury and `infect the trial with unfairness'"—has not been exhausted because it was not raised in an identical manner in state court. When a claim is presented in such a way that "a reasonable reader would have understood" the substance of that claim, the exhaustion requirement is satisfied. Williams v. Allen, 542 F.3d 1326, 1346 (11
Initially, Respondent argued that five subclaims were partially defaulted, but that number has been reduced to two. The first, found in paragraph 215, is that the trail court's "failure to explain the difference between felony murder and a capital offense with regard to the issue of intent" resulted in an ambiguous instruction. (Pet. ¶ 215.) This ambiguous instruction, according to the Petition, violated Petitioner's due process rights because there was a reasonable likelihood that the jury applied the challenged instruction in a way the violates the Constitution. (Id.) The second, found in paragraph 223, is that the trial court's failure to instruct the jury on reckless manslaughter violated Petitioner's constitutional rights. (Id. ¶ 223.)
While the facts underlying both claims were set out in Petitioner's direct appeal, neither was asserted as a federal constitutional violation and no such claims reasonably could be gleaned from the state court record. Petitioner's direct appeal brief to the Alabama Supreme Court cited only state law in support of the claim that Petitioner was entitled to a reckless manslaughter instruction. (R. Vol. 6 Tab R-38 at 97-98.) With respect to the felony murder/capital murder charges and the issue of intent, Petitioner argued on direct appeal that the felony murder charge was infirm because it did not "explicitly explain" that the difference between felony murder and capital murder was intent. That argument was contained in a footnote to an argument that the trial court should have given a lesser included instruction on reckless murder. Neither an objection to jury instructions on state law ground nor a potential claim hidden in a footnote and citing no law could have put the state court on notice that Petitioner was attempting to raise a federal constitutional violation. As the Eleventh Circuit has held that "[t]he exhaustion doctrine requires a habeas applicant to do more than scatter some makeshift needles in the haystack of the state court record." McNair v. Campbell, 416 F.3d 1291, 1303 (11
The Petition asserts several subclaims under this heading. Respondent argues that some of these subclaims are, in part, procedurally defaulted because those claims were not exhausted. Each of these is discussed below.
Respondent asserts that the following two sentences of one paragraph of this subclaim is procedurally barred:
(Pet. ¶ 224.)
In order to understand the exhaustion issue with respect to this claim, a brief review of Batson v. Kentucky, 476 U.S. 79 (1986), is necessary. Batson set forth the framework for determining whether a prosecutor's exercise of a peremptory challenge violates the Equal Protection Clause. This is a three-step process. First, the defendant bears the burden of establishing a prima facie case of purposeful discrimination. Id. at 94. Next, the burden shifts to the state to proffer a race neutral explanation for his strikes. Id. at 97. Finally, the court must determine whether the defendant has met his burden of proving purposeful discrimination. Id. at 98. The second step of the inquiry requires the trial court to determine only whether the explanation offered is, on its face, racially neutral. Hightower v. Terry, 459 F.3d 1066, 1073 (11
Respondent contends that Petitioner's Batson argument in the last half of paragraph 233 has not been exhausted. The beginning of that paragraph asserts that there is no evidence to support the state's assertion that it struck two prospective jurors—Haygood and Thompson—"because of the former's demeanor and the latter's unemployment." There is no dispute that this portion of the claim is exhausted; it was asserted on direct appeal as a Batson step three claim. The issue arises with the second half of paragraph 233, which turn this into a different claim— a Batson step two claim. It does so by citing cites United States v. Horsley, 864 F.2d 1543, 1546 (11
In paragraphs 235 through 238 (also part of subclaim 3), Petitioner asserts constitutional claims arising from the alleged underrepresentation of African-Americans and women on the jury venire. Petitioner does not contest Respondent's assertion that these claims were not presented to the state court for review. The claims asserted in these paragraphs are procedurally barred for failure to exhaust.
This claim consists of one sentence (paragraph 240). Petitioner does not contest Respondent's assertion that this claim was not presented to the state court for review. It is, therefore, procedurally barred.
In this subclaim, Petitioner asserts that the prosecution improperly questioned jurors regarding their views on capital punishment, then used the answers to exclude prospective jurors for cause. Respondent argues that Petitioner failed to exhaust a portion of this subclaim set forth in paragraphs 241-43. Contrary to Respondent's argument, the substance of these paragraphs was raised on direct appeal.
Respondent asserts that three portions of this claim are procedurally barred because "[t]he factual and legal averments contained in paragraphs 254 (third Sentence), 257 (second sentence), and 258-59 (to the extent that Hart argues anything other than because the instructions violated Cage v. Louisiana, 498 U.S. 39 (1990), it violated Winship) were not presented to the state courts. . . on direct appeal." (Resp't's Br. 22, Doc. 28.) To be clear, paragraphs 258-59 have been exhausted and are not procedurally barred.
Petitioner claims that the state violated Brady v. Maryland by failing to disclose a post-arrest statement made by Petitioner on the night of the shooting. At the Rule 32 hearing, Major Lester Hargrove of the Mobile Police Department testified that he was in charge of the criminal investigation. On the night Petitioner was arrested, Hargrove went into the holding room at police headquarters to take Petitioner a pair of shoes that he had requested. Hargrove's testimony regarding his interaction with Petitioner was as follows:
(R. Vol. 13 at 187.)
Respondent argues that this claim is procedurally barred because it was not raised on direct appeal or in the Rule 32 petition. Further, Respondent points out that the claim was raised in the Rule 32 appeal but was denied based on procedural default.
The Alabama Court of Criminal Appeals addressed the Brady claim as follows:
V. 22, R. 59 at 13.
The state appellate court's ruling on procedural default is conclusive.
Petitioner alternatively argues that he can overcome the procedural default by demonstrating cause for and prejudice from his failure to raise the Brady violation in the Rule 32 petition. He contends that "the `cause' of not including the claim in his original petition was the State's illegal withholding of evidence" and that "[t]he prejudice. . ., the absence of [a] Brady claim is obvious." (Pet'r's Br. at 37 n. 6, Doc. 37.) The Court need not consider whether Petitioner has demonstrated cause because he clearly cannot prove that he was prejudiced by the state's failure to disclose the statement. A habeas petitioner establishes prejudice for failing to raise a defaulted Brady claim by convincing the court "that there is a `reasonable probability' that the result of the trial would have been different if the suppressed [evidence] had been disclosed to the defense." Crawford v. Head, 311 F.3d 1288, 1328 (11
There is no reasonable probability of a different result here because the undisclosed statement would not have been admissible at trial. "The law is well settled in [Alabama] that [the] self-serving declarations of an accused, made before or after the offense are not admissible for him unless they are part of the res gestae." Harrell v. State, 470 So.2d 1303, 1306 (Ala. Crim. App. 1984). Petitioner's statement would not qualify as part of the res gestae, which is "broadly [ ]defined as matter incidental to the main fact and explanatory thereof, and includes acts and words which are so closely connected therewith as to constitute a part of the transaction." Moore v. State, 697 So.2d 800, 804. (Ala. Crim. App. 1996) (quoting R. Williams, Williams Alabama Evidence § 139 (1967)(footnotes omitted)). Res gestae statements are admissible as an exception to the hearsay rule and are considered reliable because they arise from "a situation which presents a startling or unusual occurrence sufficient to produce a spontaneous and instinctive reaction . . . made under such circumstances as to show lack of forethought or deliberate design in the formulation of their content." Id. An accused's post-arrest exculpatory statement does not fall within this exception, as demonstrated by a number of Alabama cases. See, e.g., Kennedy v. State, 469 So.2d 1333 (Ala. Crim. App. 1985) (defendant's self-serving statement to investigator after arrest not admissible); Miller v. State, 441 So.2d 1038 (Ala. Crim App. 1983) (same). Indeed, the Alabama Court of Criminal Appeals found a statement to be inadmissible under nearly identical circumstances. In Harrell the defendant was charged with capital murder but claimed that the shooting was not intentional. The trial court refused to allow into evidence the defendant's post-arrest statement that the gun accidentally discharged. The appellate court upheld the trial court's ruling, noting the statement "fit the classic definition of hearsay." Harrell, 470 So.2d at 1306. This claim is procedurally defaulted, and Petitioner cannot establish prejudice to overcome the procedural default.
In summary, the penalty phase claims as stated in the original petition are
1. The following claims are
2. The following claims are
3. The following claims remain to be resolved on the merits:
Finally, the Court recognizes that the Supreme Court's decision in Montgomery v. Louisiana, 141 So.3d 264, cert. granted (U.S. March 20, 2015) (No. 14-280) regarding the retroactive application of Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 2469 (2012), could have an impact on this petition for habeas relief. Therefore, Stage 2 briefing will not commence until that decision is rendered. Within 30 days after the Supreme Court issues its opinion in Montgomery, the parties shall submit a joint proposed briefing schedule for resolving the remaining claims, including, if applicable, any claims to be raised based on Miller and Montgomery.
