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Waldrop v. Thomas

United States District Court, M.D. Alabama, Eastern Division

February 5, 2015

BOBBY WAYNE WALDROP, Petitioner,
v.
KIM T. THOMAS, Commissioner, Alabama Department of Corrections, et al., Respondents.

MEMORANDUM OPINION AND ORDER

W. KEITH WATKINS, Chief District Judge.

Before the court is petitioner's Motion to Alter or Amend Judgment (Doc. # 59) pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. Petitioner requests that the court reconsider several portions of its March 31, 2014, Memorandum Opinion and Order (Doc. # 57) in which it denied his petition for habeas corpus relief. Alternatively, petitioner seeks expansion of the limited certificate of appealability granted by the court in the Memorandum Opinion and Order. For the reasons that follow, the court finds that the motion is due to be denied.

I. STANDARD OF REVIEW

Rule 59(e) authorizes a party to file a motion to alter or amend a judgment within twenty-eight days of the entry of judgment. The Rule does not provide any standard to guide the court's consideration of such a motion. However, the United States Court of Appeals for the Eleventh Circuit has stated that "[t]he only grounds for granting [a Rule 59(e)] motion are newly-discovered evidence or manifest errors of law or fact.'" Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (quoting In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999)). Furthermore, a party "cannot use a Rule 59(e) motion to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment." Michael Linet, Inc. v. Vill. of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005).

Petitioner does not predicate his motion to alter or amend judgment on his discovery of new evidence. Rather, he appears to argue that he is entitled to Rule 59(e) relief because the court has committed manifest errors of law and fact. Pet'r's Mot. (Doc. # 59) at 2. The court will discuss each of petitioner's separately numbered contentions of error in deciding his motion.

II. DISCUSSION

A. Petitioner's contention that the court committed manifest error in concluding that certain of his claims were not "fairly presented" in the state courts

Petitioner first argues that the court committed "several errors" in finding that, pursuant to Castille v. Peoples, 489 U.S. 346, 349 (1989), claims which he presented for the first and only time in state court during discretionary review in the Alabama Supreme Court were not "fairly presented" in the state courts, and, to the extent such claims were not considered by that Court, they were not exhausted for purposes of federal habeas review. See Mem. Op. (Doc. # 57) at 11-25. The court need not recapitulate all of the reasons why it found several of petitioner's claims unexhausted and procedurally defaulted. It is sufficient for present purposes to note that petitioner's claim of manifest error rests predominantly on his argument that the court failed to properly recognize and defer to Alabama's ordinary appellate review process in capital cases and that the court's reliance on Castille was misplaced because there is a "fundamental difference between certiorari review in Alabama and allocutor review in Pennsylvania." Pet'r's Mot. (Doc. # 59) at 3-6. Petitioner presented these arguments in his briefing in response to respondents' assertion of procedural default, and the court addressed them in its prior order. It is not the purpose of a Rule 59(e) motion to relitigate matters already decided. Thus, petitioner's arguments are unavailing.

Nevertheless, the court notes the following in response to petitioner's arguments in the motion. Petitioner maintains that "raising claims for the first time in a petition for certiorari to the Alabama Supreme Court is a normal, simple, and established part of the State's appellate review process[, ]'" id. at 5 (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)), because "the Alabama Supreme Court has routinely reviewed issues raised for the first time in a petition for writ of certiorari." Id. at 4. He also asserts that "Alabama's appellate rules, unlike the rules governing allocatur review at issue in Castille, " distinguish Alabama's capital appellate review process because there is a " requirement that counsel in a capital case file a petition for writ of certiorari in the Alabama Supreme Court, " and because "the Alabama Supreme Court may consider any issue in a death penalty case, whether raised in the petition or not." Id. at 5-6 (emphasis in original). According to petitioner, these differences render Castille inapposite. Id. at 6-7. However, as discussed in the Memorandum Opinion, the fact that the Alabama Supreme Court may sometimes consider claims first presented in certiorari proceedings, as well as the cited provisions of Alabama's rules, does not alter the fundamentally discretionary nature of certiorari review by the Alabama Supreme Court. This is the crux of Castille. See 489 U.S. at 349 (rejecting the premise that "the presentation of claims to a State's highest court on discretionary review, without more, satisfies the exhaustion requirements") (emphasis supplied).

In Castille, the Supreme Court quite clearly stated that, "where the claim has been presented for the first and only time in a procedural context in which its merits will not be considered unless there are special and important reasons therefor[, ]'" the claim has not been fairly presented and will not satisfy the exhaustion requirement. Id. at 351. Alabama employs essentially identical language in defining the circumstances under which the Alabama Supreme Court may grant discretionary review, even in capital cases. See Ala. R. App. P. 39(a). None of the Rules provisions cited by petitioner has the effect of rendering the Alabama Supreme Court's scope of review in certiorari proceedings anything other than "discretionary." Thus, the "more" argued once again by petitioner as distinguishing Alabama's discretionary review is immaterial.

In addition to reiterating arguments already rejected, petitioner attacks the court's opinion in other respects deserving of a brief response. First, petitioner accuses the court of misconstruing his citation of Trawick v. Allen, 520 F.3d 1264 (11th Cir. 2008). Pet'r's Mot. (Doc. # 59) at 5 n.2. In his brief, petitioner cited Trawick for the proposition that "Eleventh Circuit precedent recognizes that claims presented in a certiorari petition at the Alabama Supreme Court are fairly presented in state court and thus cognizable in federal court. This is true even if the petitioner did not raise the claim at trial or at the Court of Criminal Appeals." Pet'r's Br. (Doc. # 44) at 9 (emphasis in original). The court distinguished Trawick, finding that it "simply does not hold, or even imply, that all claims presented in a certiorari petition to the Alabama Supreme Court, whether considered by that court or not, are fairly presented for purposes of applying the exhaustion requirement." Mem. Op. (Doc. # 57) at 15. Whatever petitioner intended with his citation to Trawick, the fundamental point remains unaffected: Trawick is simply inapposite for a host of reasons. If anything, Trawick recognized - unremarkably, in light of language in Castille and explicit authority from other circuits, which this court discussed in its Memorandum Opinion - that claims that were first presented in discretionary review to the Alabama Supreme Court and that were indeed considered and adjudicated on the merits by that Court, as happened with the gender-discrimination-in-jury-selection claim in Trawick, were properly regarded as exhausted by federal courts in habeas corpus. As the court noted in the Memorandum Opinion, Trawick "did not even arguably endorse the proposition that a claim first presented in discretionary review to the state's highest court is fairly presented, and thus exhausted, even if the state court does not consider the claim, " because that question, unlike in this case, was not before the federal courts in Trawick. Mem. Op. (Doc. # 57) at 15-16.[1] And, as the court further observed in the Memorandum Opinion, in his briefing petitioner did not "cite any case, much less one involving Alabama, in which a habeas court has found a claim fairly presented, and thus exhausted, where it was first presented in discretionary review in the state's highest court and the state court explicitly limited its consideration to unrelated claims." Id. at 16. Tellingly, for all his insistence about the court's manifest error, petitioner still has not done so.

Petitioner next contends that the "Court's comity concerns are misplaced." Pet'r's Mot. (Doc. # 59) at 7 (citation omitted). In fact, petitioner appears to assert that the court's Memorandum Opinion damages comity because it "fails to give the appropriate deference to Alabama's chosen appellate review process." Id. at 8. This is a curious argument for several reasons. First, Alabama is almost certainly more concerned with upholding comity than is petitioner, and has urged that petitioner's claims were not fairly presented pursuant to Alabama's ordinary appellate review process. See, e.g., Resps.' Br. (Doc. # 41) at 2-8.

Second, and more importantly, petitioner ignores the substance of the court's discussion of comity. While it is indisputably true that the Alabama Court of Criminal Appeals has previously "reversed capital convictions and death sentences, " Pet'r's Mot. (Doc. # 59) at 7, petitioner's apparent argument that a defendant can forego presenting all of his claims in that court, then raise his omitted claims in discretionary review before the Alabama Supreme Court, and, even if those new claims are not considered by that court, proceed to then raise them in federal collateral review, presents alternative scenarios for the federal courts' adjudication, both of which would pervert comity. If, as urged repeatedly by petitioner, the federal court construes the Alabama Supreme Court's denial of certiorari as a "failure to recognize" the merit of those claims that petitioner omitted in the Court of Criminal Appeals as a ruling on the merits for purposes of applying 28 U.S.C. § 2254(d), then the court is treating the Alabama Supreme Court's denial of certiorari as exactly what that Court has declared it is not: a ruling on the merits of the issue presented. See Mem. Op. (Doc. # 57) at 21-22. However, if the federal court properly recognizes that the Alabama Supreme Court's denial of certiorari review on a given claim is not a determination of the merit of that claim, yet that claims not presented in the Court of Criminal Appeals and denied certiorari review are still somehow exhausted for federal habeas review, then the petitioner would avoid the deferential standard of review of § 2254(d), which is itself a product of comity, and would be entitled to de novo review in federal court precisely because he failed to raise his claims at all levels of the state's appellate review process. Comity - respect for the independence and integrity of the state's judicial process - could not countenance such a result because it would establish a clear loophole through which defendants could avoid both substantive state court review and the restrictive scope of federal habeas review for claims decided on their merits in the state courts.

Finally, despite petitioner's assurance that the court's concern about "gamesmanship" or "sandbagging'" is unwarranted because the "failure to raise claims before the Court of Criminal Appeals is more often attributable to the inadequate representation provided to capital defendants by the State of Alabama[, ]" Pet'r's Mot. (Doc. # 59) at 7, the court notes that petitioner has not alleged that the ineffective assistance of his appellate counsel provides "cause" for the default of any of the claims that this court found procedurally defaulted due to his failure to fairly present the claims in the Court of Criminal Appeals.

For all of the foregoing reasons, the court finds that petitioner is not entitled to Rule 59(e) relief with respect to those claims that the court found procedurally defaulted because petitioner did not fairly present and exhaust the claims in the state courts. Moreover, while petitioner argues that "reasonable jurists could debate" the propriety of the court's procedural ruling, he has failed to identify any instance, be it a district or appellate court opinion distinguishing Castille in an analogous situation or even a judge reasonably dissenting from an appellate court's application of Castille in an analogous situation, illustrating that, indeed, reasonable jurists could debate this matter. As the court has discussed, the holding of Castille is clear and the points on which petitioner seeks to distinguish that decision do not affect the circumstances germane to the Supreme Court's holding. Raising a claim for the first and only time in state court discretionary review does not fairly present the claim and it will not be exhausted for purposes of federal habeas review if the state court, in its discretion, declines to consider the claim. Petitioner is not entitled to an expansion of the certificate of appealability with respect to the court's procedural ruling on this issue.

B. Petitioner's contention that the court committed manifest error in finding that two of his sentencing-related claims were unexhausted because, even if they were not fairly presented, the state appellate courts decided the claims on their merits

Petitioner next argues that, with respect to two of the claims that the court found procedurally defaulted pursuant to Castille, "[e]ven if [he] had not fairly presented his claims to the state courts, he would still be entitled to federal review on his claims of defects in his sentencing because both the Court of Criminal Appeals and the Alabama Supreme Court reviewed the sentence and found it to be without error." Pet'r's Mot. (Doc. # 59) at 8 (emphasis in original). Specifically, petitioner argues that Claims A and B in his petition - that the trial court refused to consider compelling mitigating evidence and sentenced him to death on the basis of his race - were considered and denied by the Court of Criminal Appeals when it "examined the propriety of the sentence, reviewing the resentencing hearing for plain error under Ala. R. App. P. 45A and reviewing the sentence under Ala. Code § 13A-5-53." Id. at 9; id. at 15. Moreover, petitioner argues, because he specifically presented the claims in his subsequent petition for discretionary review, the Alabama Supreme Court was aware of the claims and implicitly reviewed them when it affirmed the Court of Criminal Appeals' judgment that petitioner's sentence was appropriate. Id. at 10; id. at 15-16. In addition, petitioner claims that, with respect to his claim that the trial court sentenced him to death on the basis of his race, any procedural default of the claim is excused by the "fundamental miscarriage of justice" exception to procedural default. Id. at 13-14.

Rule 45A of the Alabama Rules of Appellate Procedure establishes the scope of the Court of Criminal Appeals' review in capital cases. It provides that the court "shall notice any plain error defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant." Alabama Code § 13A-5-53 instructs the Court of Criminal Appeals to "review the propriety" of each death sentence before it, to include considering "whether an error adversely affecting the rights of the defendant was made in the sentence proceedings, whether the trial court's findings concerning the aggravating and mitigating circumstances were supported by the evidence, and whether death was the proper sentence in the case." § 13A-5-53(a). As part of this review, the Court of Criminal Appeals must determine, inter alia, whether "the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor." § 13A-5-53(b)(1). Petitioner argues that, in effect, these provisions establishing the scope of the Court of Criminal Appeals' review and mandating that the court make specific determinations prior to affirming a death sentence necessarily required that it consider, and it therefore implicitly rejected, the sentencing-related claims that he has conceded he did not specifically present to the Court of Criminal Appeals.

Petitioner's argument is problematic for several reasons. First, petitioner did not present the theory that his claims were addressed by both the Court of Criminal Appeals and the Alabama Supreme Court, despite any failure to fairly present them, in his briefing prior to judgment. See Pet'r's Br. (Doc. # 44) at 9-14 & 19-20. Indeed, in his brief, petitioner conceded "the fact that the Alabama Supreme Court did not address the claim." Id. at 10. Petitioner may not employ a Rule 59(e) motion to present arguments or theories that could have and should have been presented prior to judgment. Michael Linet, Inc., 408 F.3d at 763. If petitioner believed that the Court of Criminal Appeals' or Alabama Supreme Court's review of the propriety of his sentence necessarily encompassed consideration of the issues articulated in Claims A and B, nothing prevented him from pressing that argument so that the State could respond prior to judgment.

Petitioner's failure to argue prior to judgment that Claims A and B were considered by the Court of Criminal Appeals, despite his failure to present the claims to that court, is understandable considering that petitioner provides no compelling, persuasive authority that the Court of Criminal Appeals' mandatory review of the propriety of a death sentence encompasses consideration of specific claims not presented to that court. Petitioner asserts only that "[d]istrict courts within the Eleventh Circuit have recognized that a finding that a death sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor'... is a merits ruling for federal habeas purposes." Pet'r's Br. (Doc. # 59) at 10. However, petitioner's authority for this proposition, two federal district court cases out of Alabama, simply do not establish that the Court of Criminal Appeals' mandate to make "specific determinations" about the circumstances of each death sentence it reviews necessarily entails consideration of specific sentencing-related claims that could be derived from the record but that are not presented to the Court of Criminal Appeals.

In Williams v. Alabama, No. 07cv1276, 2012 WL 1339905, at *24 n.20 (N.D. Ala. Apr. 12, 2012), the district court merely applied § 2254(d) and determined that, inasmuch as it must be treated as a merits determination, the Rule 32 court's finding that petitioner's ineffective assistance of counsel claim about counsel's failure to request individual voir dire was insufficiently pleaded was not unreasonable because petitioner had failed to identify "specifically what facts trial counsel would have discovered through individual voir dire and how those undiscovered facts prejudiced Williams." In McGahee v. Campbell, No. 05cv42, 2007 WL 3037451, at *44 (S.D. Ala. Oct. 15, 2007), rev'd and remanded on other grounds sub nom. McGahee v. Ala. Dep't of Corr., 560 F.3d 1252 (11th Cir. 2009), the respective habeas petitioner had in fact raised on direct appeal in the Court of Criminal Appeals the specific claim that petitioner posits was disposed of by that court during its review pursuant to § 13A-5-53. These district court cases do not support the proposition that the Court of Criminal Appeals' mandatory review of the propriety of a death sentence entails review and consideration of all conceivable sentencing-related claims, regardless of whether they are specifically articulated in the Court of Criminal Appeals. While this court indeed did recognize, pursuant to authority from another Circuit, that "a claim is exhausted if the State's highest court expressly addresses the claim, whether or not it was fairly presented, " Pet'r's Br. (Doc. # 59) at 10, in the cases cited by the court in support of that principle, the claims had at least been "presented" to the respective state appellate courts, even if not "fairly" so, such that, when those state courts exercised discretion to consider those claims, they were exhausted for federal habeas purposes. Here, there is no doubt that petitioner did not present his specific sentencing-related claims to the Court of Criminal Appeals.

If the Court of Criminal Appeals' opinion should not be construed as having reached specific sentencing-related claims not presented to it, petitioner maintains that the Alabama Supreme Court's opinion affirming the Court of Criminal Appeals' judgment should be treated as having reached those issues because he made that Court aware of the claims in his petition for discretionary review. However, the Alabama Supreme Court did not purport to grant certiorari over either of the instant sentence-related claims. Indeed, in its opinion, the Alabama Supreme Court merely stated its approval of and quoted verbatim from the Court of Criminal Appeals' conclusion in its review pursuant to § 13A-5-53. See Ex parte Waldrop, 859 So.2d 1181, 1193 (Ala. 2002) (stating, "We agree with the conclusion reached by the Court of Criminal Appeals" and quoting from the lower court's mandatory findings pursuant to § 13A-5-53). As discussed above, the Court of Criminal Appeals ("CCA") was not confronted with either of the sentencing-related claims petitioner now presents, and petitioner has not provided any persuasive authority that the CCA's statutory review of his sentence should be read to encompass specific challenges that he did not present to that court. The Alabama Supreme Court's subsequent verbatim "approval" of the CCA's review, which had been performed without apprisal of petitioner's specific claims, similarly should not be construed as having reached the merits of claims not before the CCA, especially where the Alabama Supreme Court, in its discretion, specifically declined to grant certiorari review of those claims when it was "made aware" of them.

Petitioner's final argument in this portion of his motion is that, "even assuming that Mr. Waldrop's race claim was procedurally defaulted, this Court should have excused the default because imposing the death penalty based on the defendant's race constitutes a fundamental miscarriage of justice.'" Pet'r's Mot. (Doc. # 59) at 13 (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)). Petitioner did not present this argument prior to judgment, and he may not employ a Rule 59(e) motion to do so after judgment. Michael Linet, Inc., 408 F.3d at 763. Nor has petitioner provided any authority in support of his contention that the "fundamental miscarriage of justice" exception may be applied to excuse the procedural default of a claim of sentencing error like his race claim. Indeed, the "fundamental miscarriage of justice" exception has historically been reserved for exceedingly rare, "extraordinary" cases in which the complained-of "fundamental miscarriage of justice" has resulted in the conviction of one who is actually innocent. See, e.g., Schlup v. Delo, 513 U.S. 298, 321 (1995) ("To ensure that the fundamental miscarriage of justice exception would remain rare' and would only be applied in the extraordinary case, ' while at the same time ensuring that the exception would extend relief to those who were truly deserving, this Court explicitly tied the miscarriage of justice exception to the petitioner's innocence."). See also Spencer v. Sec'y, Dep't of Corr., 609 F.3d 1170, 1180 (11th Cir. 2010). Petitioner has not attempted to satisfy this standard, and if he would seek to expand the "extraordinary" class of cases in which this exception might be applicable to encompass claims like his race claim, he should have made such an argument in response to respondents' initial assertion of procedural default so that respondents could address the argument, and the court could give it appropriate consideration, prior to judgment.

In any event, upon review of the record, the court is not persuaded that, even assuming the "fundamental miscarriage of justice" exception applies to a claim that the defendant was sentenced to death because of his race, the exception would apply in this instance. The Court of Criminal Appeals remanded to the trial court with instructions to compose a new sentencing order in which it was to "reweigh the mitigating and aggravating circumstances and to apply the appropriate weight to each circumstance, " "clarify its findings by specifically detailing the facts in support of its findings that the offenses were especially heinous, atrocious or cruel, " "clarify its consideration of Dr. Tackett's testimony with regard to the applicable mitigating circumstance determinations, " and make " specific written findings pursuant to § 13A-5-47(d)." Waldrop v. State, 859 So.2d 1138, 1152 (Ala.Crim.App.2000). The trial court issued a revised sentencing order in response to the Court of Criminal Appeals' instructions. See R.-69. The revised sentencing order makes no mention of petitioner's race as any factor having to do with his death sentence. Instead, it summarizes the evidence, provides the trial court's findings about aggravating and mitigating circumstances, and concludes with the trial court's judgment that the aggravating circumstances outweighed the mitigating circumstances. R.-69 at 3-14. While it is certainly true that, at a hearing ordered by the trial court in response to the remand, the trial judge alluded to petitioner's race, it does not necessarily follow that petitioner was sentenced to death because of his race, much less that his death sentence was the product of racial "discrimination" or "prejudice" against white people like petitioner, as he appears to argue. See Pet'r's Br. (Doc. # 44) at 14-16; Pet'r's Mot. (Doc. # 59) at 13.

Petitioner relies on a brief, isolated remark by Judge Segrest at the hearing on remand in support of his race discrimination claim. However, because petitioner accuses Judge Segrest of willfully consigning him to be executed because of his race, the entirety of Judge Segrest's remarks deserves thorough consideration before a court should attribute such a motive to him, much less treat his actions as a "fundamental miscarriage of justice" on par with convicting someone who is innocent. In the relevant portion of the hearing, Judge Segrest appeared to be offering lengthy exposition about the legality and wisdom of Alabama's judicial override system. He noted that the United States Supreme Court had previously approved of Alabama's judicial override and remarked that the "wisdom of that position is that judges can be in a position to have a broader range of experience in dealing with capital cases." R.-30 at 35. Judge Segrest then transitioned into discussing his history of presiding over capital cases. He mentioned that he had imposed a death sentence in five cases, but that one of those cases "came back" and was subsequently reduced by agreement of the prosecutor to life-without-parole because, according to Judge Segrest, it was "purely a circumstantial evidence case." Id. Judge Segrest then remarked as follows:

So, that left four cases in which I have imposed a death sentence. In two of those cases I have overridden the jury, and this has to be understood, it has nothing to do with why you do things, you know. The why is, on imposing the death sentence, is because the aggravating circumstances outweigh the mitigating circumstances, and the person did it, and that's all you take into account. Nothing else. If I had not imposed the death sentence, I would have sentenced three black people to death and no white people. And, that's the reason that the Supreme Court of the United States trusts the judgment of judges, perhaps, a little bit more.

Id. at 36. Judge Segrest went on to reaffirm his adamance that, "if there's going to be a death penalty in the State of Alabama, and it is going to be judged based on weighing the aggravating circumstances against the mitigating circumstances, then... Bobby Waldrop needs to get the death sentence" because the offense "was a cold, heinous, atrocious, and cruel killing." Id. at 36-37. He concluded as follows:

We have a sacred trust to enforce the law. I am comfortable with the decision in this case and it is the right decision if we are going to have a death penalty in the State based upon statutory circumstances of aggravation and statutory circumstances of mitigation, and I don't have any inclination to change the ruling. I will reword the order to include those things that may be missing that the Court of Criminal Appeals wants to see, but I'm not willing to take the responsibility for not applying the law equally in this case. And, I would not be applying the law equally to everybody if Bobby Waldrop doesn't get the death sentence in this case.

Id. at 38.

As can be seen from a more comprehensive review of the transcript, it is evident that, notwithstanding Judge Segrest's brief allusion to petitioner's race, he plainly believed that the aggravating circumstances outweighed the mitigating circumstances in this case and correctly recognized that as the fundamental question before him. Immediately before the remarks identified by petitioner, Judge Segrest specifically disclaimed that anything other than the weighing of aggravating and mitigating circumstances caused him to impose a death sentence. Id. at 36 (emphasis supplied) ("The why is, on imposing the death sentence, is because the aggravating circumstances outweigh the mitigating circumstances, and the person did it, and that's all you take into account. Nothing else. "). Certainly, then, Judge Segrest was aware that petitioner's race was not a constitutionally cognizable consideration when determining his sentence. Were it truly his intent to so dramatically subvert the Constitution and impose a death sentence based upon petitioner's race rather than his faithful weighing of aggravating and mitigating circumstances, he surely was more savvy than to baldly announce that intent in open court, especially considering that there was no similar mention of petitioner's race at any prior hearing or in either of the trial court's sentencing orders.

Petitioner describes Judge Segrest's remarks as demonstrating his intent to "balance out' his record." Pet'r's Br. (Doc. # 44) at 16. In other words, according to petitioner, Judge Segrest believed he needed to sentence a white person to death because he had already sentenced three African-Americans to death.[2] Judge Segrest's remarks may certainly be described as inartful, awkward, clumsy, or superfluous. And, in fairness, in the simplest sense, they may lend themselves to the more sinister interpretation that petitioner advances. But the court is not required to accept petitioner's interpretation without scrutiny.[3] Indeed, in the court's estimation, petitioner's interpretation is not the only, or even most, viable one.[4] Given the full context of Judge Segrest's remarks, in which he without equivocation repeatedly states his belief that the balance of aggravating and mitigating circumstances tipped in favor of death in petitioner's case, his comment about petitioner's race relative to the race of others he had sentenced to death does not compel the conclusion that Judge Segrest ...


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