MARCUS, Circuit Judge:
In this death case, Anthony Boyd has filed a federal petition for writ of habeas corpus challenging the validity of his 1995 conviction and death sentence imposed in Alabama for the capital murder of Gregory Huguley. The district court denied Boyd's petition in its entirety, concluding, for a variety of reasons, that the claims Boyd had raised in his original state petition for post-conviction relief, as well as the claims raised in his amended petition were procedurally barred from federal review, but that even if reviewed on the merits, they would fail. After thorough review, we affirm.
The Alabama Court of Criminal Appeals summarized the basic facts of the murder this way:
Boyd v. State, 715 So.2d 825, 832 (Ala. Crim.App.1997) (alterations in original).
At the guilt phase, the State presented forensic evidence, along with the testimony of eyewitnesses to the events highlighted by the Alabama Court of Criminal Appeals. Several witnesses testified that prior to the murder, they had watched Huguley being forced into a van, and three of them specifically identified Boyd as one of the people in the van. Two witnesses testified to hearing that the victim owed Boyd and his co-defendants money for drugs and that they had to "get" him. A co-defendant, Quintay Cox, revealed that the defendants had actually been looking for another person named "Dexter" before they located Huguley. Cox then provided the details surrounding Huguley's kidnaping and murder, and explained that Boyd had participated fully, riding in the van with the others, taping together Huguley's feet before another co-defendant, Ingram, doused Huguley with gasoline and set him on fire, and then watching Huguley burn to death on a baseball field. Cox further testified that after the murder, Boyd exclaimed, "Well, we all in this together now."
Boyd's defense team attempted to establish an alibi for Boyd at the time of the murder. Anniston Police Officer Nigel
The jury found Boyd guilty of capital murder on March 16, 1995. At the penalty phase, the State presented no additional evidence. The defense offered fourteen witnesses who provided positive character testimony, describing how Boyd had worked with the children in his neighborhood and had been a positive influence on them and, indeed on people in the community. These witnesses included his mother, grandmother, stepfather, stepbrother, and two women with whom he had children. Several witnesses asked the jury to spare Boyd's life.
The jury returned a verdict recommending a sentence of death by a vote of ten to two. After a sentencing hearing, and in accordance with the recommendation of the jury, the trial court sentenced Boyd to death by electrocution. In its sentencing memorandum, the trial court found two statutory aggravating circumstances: (1) that the crime was committed while the petitioner was engaged in the commission of a kidnaping, see Ala.Code § 13A-5-49(4); and (2) that the crime was especially heinous, atrocious and cruel compared to other capital offenses, see id. § 13A-5-49(8). The trial court also found as a statutory mitigating factor that the petitioner had no significant prior criminal history, see id. § 13A-5-51(1), but found no other statutory or non-statutory mitigating factors. Thereafter, the trial court denied Boyd's motion for a new trial or reconsideration of his sentence.
The petitioner appealed his conviction to the Alabama Court of Criminal Appeals, which affirmed the judgment and the sentence. Boyd v. State, 715 So.2d 825, 851 (Ala.Crim.App.1997). Boyd then petitioned for review by the Alabama Supreme Court, offering the same claims he had raised on direct appeal.
The Alabama Supreme Court adopted the opinion of the Alabama Court of Criminal Appeals, affirming Boyd's conviction and the ensuing death sentence. Ex parte Boyd, 715 So.2d 852 (Ala.1998). That court also reviewed the record for evidence of passion or prejudice in the imposition of the death sentence and found none. Finally, it concluded that the trial court and the Court of Criminal Appeals properly weighed the mitigating and aggravating circumstances and that Boyd's death sentence was proportional to the penalties imposed in similar cases. Id. at 856.
The United States Supreme Court denied Boyd's petition for writ of certiorari. Boyd v. Alabama, 525 U.S. 968, 119 S.Ct. 416, 142 L.Ed.2d 338 (1998).
On October 20, 1999, Boyd, now employing new counsel, filed a motion for relief from his conviction and sentence pursuant to Rule 32 of the Alabama Rules of Criminal Procedure. We set out the rest of the
Boyd raised three claims in both his original and amended petitions that are particularly relevant. First, in the original petition, he argued ineffective assistance based on his trial counsel's failure to investigate mitigation evidence for the penalty phase. According to the petitioner, his counsel should have obtained information relevant to his medical history, educational history, employment and training history, family and social history, correctional history, and any religious or cultural influences. Boyd argued that this information would have "revealed a host of mitigating factors." While conceding that trial counsel had called numerous witnesses at the penalty phase to testify about his character, the petitioner complained that counsel never interviewed them prior to offering their testimony. Boyd also listed the names of several other witnesses whom trial counsel failed to call even though they could have testified about Boyd's widespread, positive impact on the community, his leadership abilities and how he mentored young children in his community.
Boyd also added new penalty-phase ineffectiveness claims in the amended petition. Boyd asserted for the first time that trial counsel was ineffective at sentencing because the mitigation expert utilized by defense counsel needed more time to investigate. He also suggested that trial counsel should have investigated whether chemical pollution in the Anniston area might have caused a drop in his IQ, and, thereby, an increase in his propensity toward criminality.
Boyd also claimed in his original petition that his trial counsel was ineffective at the guilt phase in failing to adequately investigate and challenge the State's capital murder charge. Specifically, Boyd urged that his counsel failed to thoroughly investigate each available avenue of defense, improperly relied on the State's version of events, failed to interview the defense's witnesses prior to trial, failed to uncover exculpatory evidence, failed to contest the constitutionality of his arrest, and failed to object to irrelevant and prejudicial evidence introduced during the trial. The petitioner also claimed that his trial counsel failed to adequately examine or cross-examine several witnesses.
Boyd raised this claim again in his amended petition, asserting for the first time however that, among other things, six alibi witnesses were not interviewed, were spoken to only briefly or were not asked about events during the alleged time of the victim's death. He also proffered a brief summary of the putative testimony these witnesses would have given.
Finally, Boyd argued in his original petition that the State had violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disgorge exculpatory evidence. He claimed that the State failed to provide exculpatory statements made by Boyd while he was in police custody and at the District Attorney's
On June 14, 2002, a hearing was held on the State's motion to dismiss. After the hearing, Boyd submitted an offer of proof and affidavits in support of the claims contained in his amended petition. On July 8, 2002, the State objected to the offer of proof and the amended petition, observing that the petitioner was unnecessarily dilatory in making these claims and presenting the offer of proof. The State argued that the trial court would be well within its discretion to deny any amendment because of Boyd's lack of diligence.
The state trial court had scheduled an evidentiary hearing for October 23-24, 2002. However, on August 28, 2002, the trial court dismissed Boyd's original Rule 32 petition without any reference to the upcoming hearing. Notably, the court never ruled on the claims contained in Boyd's amended Rule 32 petition.
The petitioner appealed the trial court's determination to the Alabama Court of Criminal Appeals, but was denied relief there as well. Boyd v. State, 913 So.2d 1113 (Ala.Crim.App.2003). The Alabama Court of Criminal Appeals first addressed Boyd's claim that the trial court had erred in dismissing his Rule 32 petition without considering the additional facts and claims he presented in his amended petition. The Court of Criminal Appeals agreed that the trial court did not consider or rule on the additional facts and additional claims he presented in the amended petition. It noted, however, that Boyd had never moved the court for leave to file an amended petition, that the trial court had never entered an order granting Boyd leave to do so, that Boyd had never objected in any way to the trial court's failure to rule on his amended petition, and that the trial court had never taken any action suggesting that it had granted Boyd leave to file an amended petition, or even that it would consider the claims presented in an amended petition. Because Boyd had failed to invoke any ruling on the amended pleading and voiced no dissatisfaction with or objection to the trial court's failure to rule until his case arrived in the appellate court, where the matter was raised for the first time, the Alabama Court of Criminal Appeals concluded that any of the allegations he raised only for the first time in his amended petition had not been preserved for review, and thus were not properly
The state appellate court did consider the claim in Boyd's original petition that trial counsel rendered ineffective assistance by failing to adequately investigate and present mitigation evidence critical at the penalty phase. Boyd had made numerous unsupported claims offering little or no specificity, in violation of Alabama Rule of Criminal Procedure 32.6(b) ("Rule 32.6(b)"). The court found that Boyd's petition did not suggest an alternate defense that counsel should have pursued during the penalty phase. Nor did Boyd disclose any mitigating factor that would have been revealed had counsel properly investigated and prepared for the penalty phase. Nor, finally, did petitioner disclose the substance of the expected testimony of any of the potential mitigation witnesses. Id. at 1138-39.
The court also found that to the extent Boyd claimed potential mitigation witnesses would have attested to Boyd's positive impact in his community, this testimony would have been cumulative. Id. at 1139. Because Boyd failed to allege how his trial counsel was deficient or, indeed, how the outcome of the trial would have been different had his counsel performed differently, the appellate court concluded that Boyd failed to state a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Id.
The appellate court also considered the petitioner's guilt-phase ineffective-assistance-of-counsel claim raised in the original petition. It agreed with the trial court's findings — that the claim was properly dismissed pursuant to Rule 32.6(b) because the claim was insufficiently specific and because the defense put on by trial counsel was a reasonable one. Boyd's claim did not disclose any critical exculpatory evidence that trial counsel should have uncovered, nor any specific piece of evidence that went uncovered based on ineffective assistance, nor did it offer any reason why Boyd's arrest and pretrial detention were unlawful, nor did Boyd even suggest how counsel had failed to adequately cross-examine witnesses or what information had been omitted as a result of inadequate cross-examination. Indeed, Boyd had not so much as suggested what kind of defense counsel should have investigated or mounted. Id. at 1131-32. The appellate court also found that Boyd had not alleged how the outcome of his trial would have been different had counsel performed differently. Thus, it concluded once again that petitioner failed to state a claim of ineffective assistance of counsel under Strickland.
Finally, the Alabama Court of Criminal Appeals addressed Boyd's claim found in his original petition that the prosecution violated Brady v. Maryland. First, it found that the Brady claims were procedurally barred because Boyd could have, but did not raise these claims at trial or on direct appeal. Moreover, the court determined that, in any event, these claims were insufficiently specific as required by Rule 32.6(b) because Boyd failed to allege the substance of his purportedly exculpatory statements or those of his co-defendants, nor did he identify any specific witnesses who supposedly had criminal records or gave conflicting accounts or what agreements were allegedly made with them. Finally, the appellate court agreed with the trial court's findings that the petitioner's Brady claim based on the prosecutor's failure to turn over exculpatory statements made by Boyd himself while in police custody failed to state an independent ground for relief.
Thereafter, the Alabama Supreme Court denied Boyd's petition for writ of certiorari on May 27, 2005.
On June 3, 2005, Boyd filed this federal habeas petition in the United States District Court for the Northern District of Alabama. The district court denied Boyd's habeas petition in its entirety. As for the argument that the state court erred in dismissing claims found in his original petition for lack of specificity, the district court determined, for the most part, that the state court's resolution of these claims was not on the merits, and thus these claims were procedurally barred. As for Boyd's claim that the state court erred by failing to consider evidence he submitted or to address the merits of the claims that he raised in his amended petition, the district court concluded that because the state court refused to consider them under state procedural law, these claims were also procedurally barred. The district court nevertheless went on to review all of the claims in the amended petition and concluded, for one reason or another, that each claim failed on the merits or was procedurally barred.
Thereafter, the district court granted Boyd's application for a certificate of appealability ("COA") on one issue: whether the district court improperly concluded that the petitioner's amended Rule 32 petition was procedurally barred. Boyd sought to expand the COA in this Court, and we granted the application to consider one additional issue: whether his Rule 32 claims were pled with sufficient specificity to meet the requirements of Alabama's Rule 32.6(b). See Order, No. 09-15961 (11th Cir. Aug.25, 2010).
This timely appeal follows.
Boyd filed his federal habeas petition in 2005 (after AEDPA's effective date of April 24, 1996); section 2254(d) governs this proceeding. Wilcox v. Fla. Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir.1998). Under § 2254(d), a federal court may grant habeas relief only where the state court decision was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or was (2) "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
A state court decision is "contrary to" clearly established law if the court arrived at a conclusion opposite to one reached by the Supreme Court on a question of law or the state court confronted facts that were "materially indistinguishable" from relevant Supreme Court precedent but arrived at a different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision is an "unreasonable application" of clearly established law if the state court unreasonably extends or fails to extend a clearly established legal principle to a new context. Id. at 407-09, 120 S.Ct. 1495.
A state court's factual findings are presumed correct unless rebutted by the petitioner with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Moreover, for a state court's resolution of a claim to be an adjudication on the merits, so that the state court's determination will be entitled to deference for purposes of federal habeas corpus review under AEDPA, all that is required is a rejection of the claim on the merits, not an opinion that explains the state court's rationale for such a ruling. Wright v. Sec'y for the Dep't of Corr., 278 F.3d 1245, 1255 (11th Cir.2002).
We review de novo whether a district court properly ruled on a procedural bar issue. Kelley v. Sec'y for the Dep't of Corr., 377 F.3d 1317, 1345 (11th Cir.2004).
For starters, the parties devoted large sections of their briefs addressing whether the state court's rejection of the claims found in Boyd's original petition was a ruling on the merits or a procedural ruling. For the most part, the state court rejected these claims because it determined that Boyd's claims did not provide a "clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds," as required by Rule 32.6(b). The district court largely concluded that these claims were procedurally barred.
Since the district court issued its opinion, however, we have held repeatedly that a state court's rejection of a claim under Rule 32.6(b) is a ruling on the merits. See Frazier v. Bouchard, 661 F.3d 519, 525 (11th Cir.2011) ("[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." (footnote omitted)); Borden v. Allen, 646 F.3d 785, 812 (11th Cir. 2011) ("A ruling by an Alabama court under Rule 32.6(b) is ... a ruling on the merits."); Powell v. Allen, 602 F.3d 1263, 1272-73 (11th Cir.2010) ("The Rule 32 court, affirmed by the state appellate court, found that [petitioner] failed to plead facts on which an ineffective assistance claim could be based and, for that reason, denied [petitioner's] claim and request for an evidentiary hearing. We thus review the Rule 32 court's rejection of [petitioner's] claim as a holding on the merits.").
646 F.3d at 812-13. The district court erred in concluding that it was procedurally barred from reviewing the merits of the claims raised in Boyd's original Rule 32 petition. Thus, we review them on the merits.
Under Alabama Rule of Criminal Procedure 32.3 ("Rule 32.3"), "[t]he petitioner
As we've noted, the Alabama Court of Criminal Appeals concluded that the claims embodied in Boyd's original petition were insufficiently specific to satisfy the requirements of Rule 32.6(b). Boyd takes issue with the state court's treatment of three of those claims: that counsel was ineffective at the penalty phase, and at the guilt phase, and that the state violated Brady v. Maryland. We remain unpersuaded; the state court's rejection of each claim was neither contrary to nor an unreasonable application of clearly established Supreme Court law.
Boyd claimed that trial counsel were ineffective during the penalty phase for failing to properly investigate and present mitigation evidence, in violation of Strickland. It is now hornbook law that to succeed on an ineffective-assistance-of-counsel claim, a petitioner must show that: (1) "counsel's representation fell below an objective standard of reasonableness," and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052. We "may decline to reach the performance prong of the ineffective assistance test if convinced that the prejudice prong cannot be satisfied." Waters v. Thomas, 46 F.3d 1506, 1510 (11th Cir.1995). Moreover, where, as here, a claim implicates AEDPA and Strickland, our review is "doubly deferential." See Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011) ("Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so." (citations and quotations omitted)).
In this case, Boyd's petition baldly asserts: (1) that effective preparation would have "revealed a host of mitigating factors," without saying what those factors are, other than his "widespread positive impact in his community, his leadership abilities, and the manner in which he guided the young children around him away from trouble," again, without providing any explication, specificity or detail; (2) that trial counsel never interviewed character witnesses nor told them the purpose of their testimony, again without saying what further testimony preparation would have revealed; and finally, (3) that trial counsel failed to call numerous other (named) potential character witnesses to testify on Boyd's behalf, still again offering no explanation about how this additional testimony would have cut against the aggravators in this case, let alone how the result would likely have been different. Taking these vague and conclusory allegations together, the Alabama Court of Criminal Appeals determined that Boyd's claim fell far short, on its face, of establishing either Strickland's performance or prejudice prong. Having reviewed the bare claims in Boyd's original petition, we
Just as in Borden, Powell, and Price, Boyd asserts at the highest order of abstraction that further penalty phase preparation would have resulted in additional mitigating testimony, but fails to detail what this testimony was or explain how it would have affected the outcome. The most specific claim he makes is the suggestion that some of these new witnesses could have testified about Boyd's widespread positive impact in his community. But the allegations do not explain how this evidence would have changed the sentencing outcome; how this evidence would have led to statutory mitigators; how it would have undermined the aggravating circumstances; or how it would have changed the portrait of Boyd that was painted at trial.
Boyd also argues that his trial counsel were ineffective during the guilt phase by failing to adequately investigate the capital murder charge. Once again, we conclude that the Alabama Court of Criminal Appeals's dismissal of this claim because it was facially insufficient under Strickland — and in particular, under the Strickland prejudice prong — was neither contrary to nor an unreasonable application of clearly established Supreme Court law.
Boyd alleged, again at the highest level of abstraction, that trial counsel failed to investigate every avenue of defense, performed no independent investigation, failed to uncover exculpatory evidence, failed to challenge the constitutionality of Boyd's detention, failed to cross-examine eyewitness and expert testimony, and failed to object to prejudicial evidence. That is all he says. As the state courts found, Boyd's petition did not disclose the "critical exculpatory evidence" that should have been uncovered by his counsel; did not disclose "one specific piece of evidence that went undiscovered"; did not disclose any reason why Boyd's arrest and pretrial detention were unlawful; did not offer how counsel failed to adequately cross-examine witnesses or the information that was omitted as a result of the inadequate cross-examination; and did not suggest any other kind of defense that trial counsel should have investigated or presented. Boyd, 913 So.2d at 1131-32. Boyd failed to say what a better investigation or trial performance by counsel might have revealed or how it might have made the outcome different. The Alabama Court of Criminal Appeals's conclusion was neither contrary to nor an unreasonable application of clearly established Supreme Court law.
Finally, Boyd claims that the prosecution failed to turn over exculpatory evidence, in the form of statements of co-defendants and agreements with defense witnesses, which would have cast doubt on the prosecution's case while bolstering Boyd's defense, all in violation of Brady v. Maryland. In Brady, the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused... violates due process where the evidence is material either to guilt or to punishment." 373 U.S. at 87, 83 S.Ct. 1194. A Brady violation has three components: "[1] The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [2] that evidence must have been suppressed by the State, either willfully or inadvertently; and [3] prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Evidence is not considered to have been suppressed if "the evidence itself... proves that [the petitioner] was aware of the existence of that evidence before trial." Felker v. Thomas, 52 F.3d 907, 910 (11th Cir.1995). The prejudice or materiality requirement is satisfied if "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); see also Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Materiality is determined by asking whether the government's evidentiary suppression undermines
For starters, while Boyd argues that the district court erroneously found the claims to be procedurally barred because of the state court's dismissal under Rules 32.3 and 32.6, he never mentions that they were also found to be procedurally barred because he never raised the claim at trial or on direct appeal, as required by Alabama Rule of Criminal Procedure 32.2(a)(3) and (a)(5) ("Rule 32.2(a)(3) and (a)(5)"). We have squarely held that claims barred under Rule 32.2(a)(3) and (a)(5) are procedurally defaulted from federal habeas review. See Brownlee v. Haley, 306 F.3d 1043, 1066 (11th Cir.2002) ("The district court correctly determined that the claims ... are procedurally defaulted under Rules 32.2(a)(3) and (5) because they were not raised either at trial or on appeal."); see also Holladay v. Haley, 209 F.3d 1243, 1254 & n. 9 (11th Cir.2000) (finding claims dismissed under Rule 32.2(a)(5) to be procedurally defaulted in federal court). Boyd's Brady claims are procedurally barred.
But even if the Brady claims, somehow, were not procedurally barred, the state court did not act contrary to or unreasonably apply clearly established Supreme Court law in rejecting them. As for the first one — that Boyd's own statement to police was suppressed — this is not Brady material. Boyd was obviously present during this questioning and thus aware of anything he may have said. Evidence is not suppressed if "the evidence itself ... proves that [the petitioner] was aware of the existence of that evidence before trial." Felker, 52 F.3d at 910.
As for the remaining claims, Boyd fails to show "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley, 473 U.S. at 682, 105 S.Ct. 3375. Again he has failed to say what exculpatory and impeachment evidence taken from his co-defendants the State had developed, what conflicting statements by the defense's witnesses the State possessed, or what defense agreements the State had made with some of its witnesses. He does not even name any of the alleged witnesses or co-defendants. His allegations do not begin to explain how he was prejudiced, and we cannot say that the state court's dismissal of them was contrary to or an unreasonable application of federal law.
In the face of Boyd's complete failure to demonstrate prejudice, the state court's rejection of Boyd's Brady claims was not contrary to or an unreasonable application of clearly established Supreme Court law.
Boyd also argues the district court wrongly concluded that the claims he raised in his amended Rule 32 petition were procedurally barred from federal habeas review. As a general rule, a federal habeas court may not review state court decisions on federal claims that rest on state law grounds, including procedural default grounds, that are "independent and adequate" to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). In Card v. Dugger, 911 F.2d 1494 (11th Cir. 1990), we established a three-part test to help us determine whether a state court's procedural ruling constitutes an independent
To begin with, the Alabama Court of Criminal Appeals expressly said that it was refusing to consider the claims in Boyd's amended petition because "Boyd has failed to preserve this issue for review," 913 So.2d at 1123, further explaining that "Boyd never moved for leave to file the amended petition, and the circuit court never entered an order granting Boyd leave to do so," id. at 1124. It then said: "[T]o the extent that Boyd, in his brief on appeal, cites to and relies on allegations he raised only in his amended petition and not in his original petition — the dismissal of which is before us for review — we note that those allegations are not properly before us, and we will not consider those allegations in our resolution of this appeal." Id.; see also id. at 1126 n. 7 ("[W]e will consider only the factual allegations contained in Boyd's original petition in our analysis of whether the circuit court correctly dismissed Boyd's claims, because those allegations contained only in Boyd's amended petition, and not in his original petition, are not properly before us."); id. at 1140 n. 10 (noting that Brady claims and factual allegations therefor raised only in amended petition would not be reviewed).
The Alabama Court of Criminal Appeals could not have been any clearer in explaining that the claims raised in Boyd's amended petition were not considered precisely because they were procedurally barred. "Failing to preserve" is quintessential procedural bar language. See, e.g., Ferguson v. Sec'y for Dep't of Corr., 580 F.3d 1183, 1212 (11th Cir.2009) (describing a claim as procedurally barred when a petitioner failed to "preserve[] the issue for appellate review"); Judd v. Haley, 250 F.3d 1308, 1312 (11th Cir.2001) (describing a claim as procedurally barred when the petitioner had "failed to preserve [an issue] for the record").
The Alabama Court of Criminal Appeals hinged its procedural dismissal on, among other things, Boyd's failure to move the
However, it is plain that under Alabama law, amendments to Rule 32 petitions are not filed as a matter of right. Rule 32.7(b) says that "[a]mendments to pleadings may be permitted at any stage of the proceedings prior to the entry of judgment," and Rule 32.7(d) says that "[l]eave to amend shall be freely granted." (Emphases added). The Alabama courts have interpreted the rule in this way:
Talley v. State, 802 So.2d 1106, 1107-08 (Ala.Crim.App.2001) (emphasis added) (quoting Cochran v. State, 548 So.2d 1062, 1075 (Ala.Crim.App.1989) (quotations omitted)).
In Ex parte Rhone, 900 So.2d 455 (Ala. 2004), the Alabama Supreme Court approved the very language used by the Alabama Court of Criminal Appeals in Talley and said that this language — dating back to 1989 — is "consistent with this Court's prior decisions, as well as with Rule 32.7." Id. at 458.
In short, under Alabama law, a trial court has the discretion to grant or deny leave to amend; these amendments
Thus, while Boyd claims that there is no authority in Alabama law for a rule requiring leave to amend, and therefore that his amended petition was automatically accepted by the trial court upon filing, his argument is refuted by the plain language of Rule 32.7 and by Alabama's controlling case law. Since Alabama's rules of procedure and its case law are clear that Boyd had no unfettered right to amend his petition, and because he failed to seek leave to do so, failing even to highlight the matter for the trial judge, we conclude that the "leave" requirement has been "`firmly established and regularly followed'" for purposes of our procedural default analysis. See Ford, 498 U.S. at 423-24, 111 S.Ct. 850. Thus, the third prong of the "independent and adequate state ground" test has been met. The Alabama Court of Criminal Appeals's procedural dismissal was based on independent and adequate state grounds.
In Coleman v. Thompson, the Supreme Court held that when a state prisoner has defaulted his federal claims in state court based on an independent and adequate state procedural ground, the federal court is barred from reviewing the claims "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Boyd has made no attempt to overcome the procedural default by showing either adequate cause for or actual prejudice arising from the default, or by claiming that a failure to consider the claim would result in a fundamental miscarriage of justice. Thus, we agree with the district court that we are precluded from considering the claims found in Boyd's amended petition. See Bailey v. Nagle, 172 F.3d 1299, 1306 (11th Cir.1999).
But even if we were to conclude that the claims raised in the amended petition were not procedurally barred on federal habeas
Nonetheless, out of an abundance of caution, we have reviewed all of the claims found in Boyd's amended petition, and have determined that none has any merit. To illustrate, we examine a few of those claims here.
Among other things, Boyd argues in his amended petition that trial counsel were ineffective because they failed to investigate Boyd's alibi defense. The petitioner cites five witnesses who allegedly would have provided him with an alibi for the time of the murder. However, this proffered testimony is slender, and at times, wholly inconsistent. Thus, for example, Willie Maud Watson says that, between 4:00 and 5:00 p.m., Boyd, Ackles and Cox came to her house and she asked them to go to Catherine Jones's house to put up balloons for a party. Somewhat supportive of this statement, Felecia Parker says that Boyd and others came over to Catherine Jones's house at some unstated time and put up balloons for the party. She adds they finished and went out on the porch just as the sun was going down (at about 7:45 p.m.).
Yet contrary to Watson's statement, Sylvester McGrew claims that sometime after 5:00 p.m., he saw Officer Raines chase Boyd, and after the chase, McGrew walked with Boyd to Catherine Jones's house. And contrary to all of these claims, Felicia Jones says that after 5:00 p.m., she met Boyd, alone, at Watson's house. She adds that they stayed at the house until "after dark" — so, from sometime before to sometime after 7:45 p.m. Obviously, Boyd could not have been at Catherine Jones's house at dusk and at Watson's house from late afternoon until after dark. In addition, it seems remote indeed that during exactly the same time period, Boyd got into a foot chase with a police officer in the Glen Addie housing project.
Petitioner also offers a statement by Sylvester Boyd, but it is of little value as well. He says that he and Boyd went to the Glen Addie Community Center sometime in the "early afternoon" on July 31, 1993. They stayed an hour-and-a-half and returned home after getting a drink at a nearby convenience store. Based on this statement, Boyd and Sylvester could have left the Community Center shortly after 1:30 p.m., gotten their drinks and gone home well before the offense occurred. Or it could have been later. But Sylvester makes no mention of Anthony Boyd being chased out of the project by Officer
In short, none of these witnesses can account for Boyd's whereabouts at the time of the murder, except for Parker and Jones, and their statements directly collide. And while the petitions proffered that Raymond Lee Edwards would testify to seeing Ingram in the Glen Addie project at about 7:30 p.m. on July 31, 1993, this assertion is nothing more than a bare allegation without evidentiary support. No statement by Edwards has been located anywhere in the record.
In the face of the conflicts within the statements, no reasonable possibility appears that the outcome of this case would have been any different had this information been presented at trial. This is particularly true since the evidence of guilt at trial was relatively strong. In addition to the testimony of co-defendant Quintay Cox, the State called another witness who testified that Boyd had admitted that he and some others had killed the victim at the ball park. Three other witnesses testified to seeing Boyd in a blue van into which they observed the victim being forced. Still others testified to hearing Boyd say that the victim owed money for drugs and that they had to get him.
Furthermore, as the state court observed, trial counsel mounted a vigorous defense, including alibi testimony, and the testimony proffered by the petitioner in the amended petition would be merely cumulative. In short, the "new" alibi evidence is contradictory, cumulative, and weak when compared to the evidence adduced at trial. So, even if we were to consider this later proffer and assume that trial counsel performed deficiently by failing to present it (and there is no indication of that), there is no reasonable probability of a different outcome.
Boyd also says that defense counsel's representation during the penalty phase of the trial was deficient because counsel failed to investigate or present readily available mitigation testimony. Boyd claims that trial counsel was ineffective because the mitigation expert hired by defense counsel said she was unable to do all the work she needed to do without being given more time. However, Boyd does not say what else the mitigation expert could have done with additional time, nor does he explain how he was prejudiced by this failure to have more time to prepare. Thus, the petitioner has failed to establish the prejudice required to make out a claim of ineffective assistance under Strickland.
Boyd additionally claims that trial counsel should have investigated whether chemical pollution (the presence of polychlorinated biphenyls or "PCBs") in the Anniston, Alabama area might have caused a drop in his IQ and thereby increased his tendency toward criminality. The petitioner makes only the barest assertion that pollution could have caused some sort of damage to him. Other than citing to an article discussing findings that "may support" a link between PCB exposure and criminality through lower IQ, Boyd provides no evidence about the existence of an actual link between those factors, about the concentration of PCBs in Anniston, about Boyd's exposure to PCBs, about the detection of PCBs in his blood, or about his IQ. Most notably, he also fails to explain how an investigation of PCBs would have satisfied the Strickland prejudice prong. Plainly this claim fails too.
What's more, in Boyd's case, the Alabama Court of Criminal Appeals held that the manner of investigation and presentation of evidence concerning mitigating circumstances was designed to present a reasonable
We previously have affirmed findings of no prejudice where, as here, (1) the new mitigation evidence did not establish any statutory mitigating factors, (2) the new mitigation evidence did not reduce the weight of the statutory aggravating factors, and (3) the jury had heard some non-statutory mitigation of the same character the new mitigation presented, just in less detailed form. Boyd, 592 F.3d at 1298, 1300-01; Robinson v. Moore, 300 F.3d 1320, 1346-48 (11th Cir.2002); see also Rutherford v. Crosby, 385 F.3d 1300, 1315-16 (11th Cir.2004). Just as in those cases, Boyd has failed to satisfy Strickland.
It is also abundantly clear that Boyd's additional Brady claims, new to his amended petition, lack merit. His main Brady claim seems to be based on Anniston Police Department logs from a police visit to a hotel in Oxford, Alabama, during the "night of July 31, 1993 and in the early morning of August 1, 1993," where and when Boyd was supposedly present during an altercation between Stalitha Garrett and Angie Page. Boyd has not shown how his presence in Oxford late during "the night of July 31, 1993 and in the early morning of August 1, 1993" — well after the crime was committed around dusk — would "undermine[] confidence in the outcome of the trial." Kyles, 514 U.S. at 434, 115 S.Ct. 1555.
As for his claim that he did not receive "any of the investigating officers' field notes," this claim is too vague to warrant relief. Boyd has offered no information about what was contained in the notes, and thus it is impossible to tell what may or may not have been suppressed. This claim therefore fails. See Strickler, 527 U.S. at 281-82, 119 S.Ct. 1936 (requiring valid Brady claims to be based upon evidence favorable to the accused and to have resulted in prejudice).
Finally, Boyd argued that the prosecution "informed the Court at trial that it had a `Nagra tape' of Mr. Boyd threatening Roderick Dye if he testified," in addition to the State having "indicated [that] it had evidence of other threats made to various witnesses in this case" that it failed to produced. Boyd has not shown how
The remainder of Boyd's claims, also stated at the highest order of abstraction — and ranging from additional ineffectiveness claims to due process claims to Enmund, Apprendi and Ring claims — similarly have no merit. Because these claims are not properly before us, and because we can mine no merit from them in any event, we conclude that Boyd is not entitled to habeas relief.
We, therefore, affirm the district court's judgment denying the petitioner habeas relief.
Borden, 646 F.3d at 821-22 (emphases added; footnote omitted).
Similarly, in Powell, the Alabama state courts also applied Rule 32.6(b) to deny the petitioner's ineffective-assistance-of-counsel claims. Powell, 602 F.3d at 1275. Again we rejected the claim, observing that the petitioner failed to allege in any way what mitigating circumstances trial counsel had failed to uncover. Id. See also Price v. Allen, 679 F.3d 1315, 1325-26 (11th Cir.2012) (rejecting a Strickland claim where "the allegations regarding the evidence that his friends, family members and school records would have revealed... [were] too general and conclusory to be able say that there is a reasonable probability that this evidence would have changed the outcome of Price's sentencing.").
State v. Beaird, 981 So.2d 386, 392 (Ala.2007) (quotations omitted).