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Smith v. Dunn

United States District Court, N.D. Alabama, Southern Division

March 28, 2017

WILLIE B. SMITH, III, Petitioner,
v.
JEFFERSON S. DUNN, Commissioner, Alabama Department of Corrections, Respondent.

          MEMORANDUM OPINION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE

         Petitioner Willie B. Smith, III has petitioned for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his 1992 capital murder conviction and death sentence in Alabama state court. Smith alleges various constitutional violations that he asserts require reversal of his convictions or his sentence. The parties have fully briefed Smith's claims. (Docs. # 28, 34). After careful consideration of the record, the pleadings, and the applicable provisions of 28 U.S.C. § 2254, the court finds that Smith has not shown that he is entitled to an evidentiary hearing or to habeas relief. Accordingly, and for the reasons stated below, his petition for a writ of habeas corpus is due to be denied.

         I. Background and Procedural History

         In order to discuss the issues raised by Smith's federal habeas petition, the court need only briefly recount the crime at issue. Smith was convicted and sentenced to death in Jefferson County, Alabama, for the intentional murder of Sharma Ruth Johnson during the course of a first-degree robbery pursuant to Alabama Code § 13A-5-40(a)(2), and for the intentional killing of Johnson during the course of a first-degree kidnapping pursuant to Alabama Code § 13A-5- 40(a)(1). Smith v. State, 838 So.2d 413, 421 (Ala.Crim.App.2002) (“Smith II”). The evidence at trial showed that Smith and his girlfriend, Angelica Willis, approached Johnson in her car near an automated teller machine. Id. at 421-22. Following Smith's instructions, Willis asked Johnson for directions to a restaurant. Id. at 422. Then Smith, armed with a shotgun, walked up to Johnson's car and forced Johnson into the trunk. Id. After driving to another location, Smith and Willis returned to the automated teller machine. Id. There, they located Johnson's dropped bank debit card and directed Johnson, still in the car's trunk, to call out the card's access code. Id. At Smith's direction, Willis withdrew $80 from Johnson's bank account. Id. A bank video camera captured images of Smith while Willis withdrew money from the machine. Id. After driving around the Birmingham area and picking up Smith's brother from a shopping mall, Smith drove Johnson's car to a cemetery. Id. Smith told Willis that he would have to kill Johnson because she would report the crime to law enforcement. Id. Willis overheard Johnson pleading for her life and promising not to tell the authorities about the kidnapping. Id. Willis then heard a gunshot. Id. Smith, his brother, and Willis abandoned the vehicle at North Roebuck School. Id. Smith later returned to the car and set it on fire to destroy any fingerprints left on it. Id.

         Police learned about Smith through statements he made to acquaintances and to a police informant. See Id. at 422-23. The informant later wore a wire and recorded a conversation with Smith. (State Court Record, Vol. 7, at 1118-20, 1133-36). In the recorded conversation with the informant, Smith admitted to abducting and killing Johnson. See Smith II, 838 So.2d at 424-25.[1]

         Smith was tried and convicted in Jefferson County Circuit Court on May 7, 1992. (State Court Record, Vol. 34, Tab R-69 at 1). The jury recommended that the Smith be sentenced to death. (Id. at 2). Following a sentencing hearing, the trial court sentenced Smith to death on July 17, 1992. (Id. at 20).

         On direct appeal, Smith's case was remanded to the trial court for the prosecutor to provide reasons for using 14 of his 15 peremptory challenges to strike female veniremembers, based on the Supreme Court's intervening opinion in J.E.B. v. Alabama, 511 U.S. 127');">511 U.S. 127 (1994). Smith v. State, 698 So.2d 1166, 1169 (Ala.Crim.App.1997) (“Smith I”). On remand, the trial court found that the prosecutor provided sufficient non-discriminatory reasons for his strikes of female veniremembers. (State Court Record, Vol. 34, Tab R-71 at 26). On return to remand, the Alabama Court of Criminal Appeals affirmed the trial court's judgment and Smith's convictions and sentence. Smith II, 838 So.2d 413 (Ala. Crim. App.), cert. denied, Ex parte Smith (Ala. June 28, 2002). The United States Supreme Court denied Smith's petition for writ of certiorari. Smith v. Alabama, 537 U.S. 1090 (2002).

         Smith filed a petition for state postconviction relief under Alabama Rule of Criminal Procedure 32. (State Court Record, Vol. 34, Tab R-74 at 1). The Jefferson County Circuit Court denied his petition. The Alabama Court of Criminal Appeals affirmed. Smith v. State, 112 So.3d 1108 (Ala.Crim.App.2012) (“Smith III”), cert. denied, Ex parte Smith, 112 So.3d 1152 (Ala. 2012).

         In March 2013, Smith filed his original federal habeas petition in this court. (Doc. # 1). Respondent Jefferson Dunn, [2] Commissioner of the Alabama Department of Corrections, asserts that each of Smith's claims for relief lacks merit and the petition is due to be denied.

         II. Standards of Review

         A. General Standard of Review

         A federal court may only grant habeas corpus relief to a state prisoner for claims considered on the merits by a state court if the petitioner shows that the state court proceedings resulted in a decision that 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
(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)(1), (2). Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (stating that § 2254(d) requires a “highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt” (internal citation and quotation marks omitted)) This court's review of Smith's claims under § 2254(d)(1) is limited to the record that was before the state courts that adjudicated those claims on the merits. Cullen v. Pinholster, 563 U.S. 170, 181 (2011). The “contrary to” clause in § 2254(d)(1) applies when the state court reaches a conclusion “opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Jones v. GDCP Warden, 753 F.3d 1171, 1182 (11th Cir. 2014) (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). An unreasonable application of law under § 2254(d)(1) occurs when the state court “identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. (quoting Williams, 529 U.S. at 413). The Supreme Court has explained that an “unreasonable application of” of its prior holdings must be “objectively unreasonable, ” not merely wrong; even “clear error” will not suffice to allow for relief under this clause of § 2254(d)(1). Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). Rather, “[u]nder § 2254(d), a habeas court must determine what arguments or theories supported or could have supported[ ] … the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with” a prior Supreme Court holding. Harrington v. Richter, 562 U.S. 86, 102 (2011). This point, the Supreme Court has observed, is “the only question that matters under § 2254(d)(1).” Lockyer, 538 U.S. at 71. To the extent that Smith disputes a factual determination by the state courts, this court may only overturn a state court's factual findings if Smith “produces ‘clear and convincing evidence' that those findings are erroneous.” Jones, 753 F.3d at 1182 (quoting 28 U.S.C. § 2254(e)(1)).

         The court's review of Smith's § 2254 petition is highly deferential to the state courts' resolution of his claims. See Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008) (asserting that federal habeas review is “highly deferential” to state courts' decisions). If “fairminded jurists could disagree” on the correctness of the state court's decision that a claim lacks merit, federal habeas relief is precluded. Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

         B. Standard of Review for Claims Unexhausted in State Court

         A petitioner ordinarily must exhaust all claims presented in his or her § 2254 petition by fairly presenting the legal and factual basis for the claims in state court before a federal court may consider them. Indeed, Section 2254(b)(1) provides that a federal court may not grant habeas relief to an applicant in state custody “unless it appears that the applicant has exhausted the remedies available in the courts of the State; or there is an absence of available State corrective process; or circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1). To exhaust a claim in state court, a state prisoner must “invoke[ ] one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). To invoke a complete round of appellate review in Alabama state courts, an Alabama prisoner must file a petition for certiorari with the Alabama Supreme Court. Smith v. Jones, 256 F.3d 1135, 1140-41 (11th Cir. 2001). A federal claim has been fairly presented to the state courts if “a reasonable reader would understand each claim's particular legal basis and specific factual foundation.” Kelley v. Sec'y Dep't of Corr., 377 F.3d 1317, 1344-45 (11th Cir. 2004). “The exhaustion doctrine requires a habeas applicant to do more than scatter some makeshift needles in the haystack of the state court record.” Id. at 1345 (quoting Martens v. Shannon, 836 F.2d 715, 717 (1st Cir. 1988)). Among other requirements, the petitioner must inform the state courts that a claim is being asserted “under the United States Constitution” in order to fairly present a federal constitutional claim for state-court relief. Duncan v. Henry, 513 U.S. 364, 365-66 (1995). If a state petitioner's federal habeas claim is unexhausted, the district court has traditionally dismissed the habeas petition without prejudice or stayed the cause of action in order to allow the petitioner to first avail himself or herself of state law remedies. E.g., Ogle v. Johnson, 488 F.3d 1364, 1370 (11th Cir. 2007). However, “if it is clear from state law that any future attempts at exhaustion [in state court] would be futile” under the state's own procedural rules, this court can simply find that the claim is “procedurally defaulted, even absent a state court determination to that effect.” Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir. 1999) (citing Snowden v. Singletary, 135 F.3d 732, 737 (11th Cir. 1998)).

         C. Standard of Review for Claims Denied by the State Courts on Adequate and Independent State Law Grounds

         It is well established that, if a federal habeas petitioner fails to raise a claim in the state court at the time and in the manner dictated by the state's procedural rules, the state court can decide that the claim is not entitled to a review on the merits. Stated differently, “the petitioner will have procedurally defaulted on that claim.” Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010). As the Supreme Court has explained:

In habeas, the sanction for failing to exhaust properly (preclusion of review in federal court) is given the separate name of procedural default, although the habeas doctrines of exhaustion and procedural default are similar in purpose and design and implicate similar concerns[.] In habeas, state-court remedies are described as having been exhausted when they are no longer available, regardless of the reason for their unavailability. Thus, if state-court remedies are no longer available because the prisoner failed to comply with the deadline for seeking state-court review or for taking an appeal, those remedies are technically exhausted, but exhaustion in this sense does not automatically entitle the habeas petitioner to litigate his or her claims in federal court. Instead, if the petitioner procedurally defaulted those claims, the prisoner generally is barred from asserting those claims in a federal habeas proceeding.

Woodford v. Ngo, 548 U.S. 81, 92-93 (2006) (internal citations and quotation marks omitted).

         Generally, if the last state court[3] to examine a claim finds clearly and explicitly that the claim is barred because the petitioner failed to follow state procedural rules, and that procedural bar provides an adequate and independent state ground for denying relief, then federal review of the claim also is precluded by federal procedural default principles. See Cone v. Bell, 556 U.S. 449, 465 (2009) (“[W]hen a petitioner fails to raise his federal claims in compliance with relevant state procedural rules, the state court's refusal to adjudicate the claim ordinarily qualifies as an independent and adequate state ground for denying federal review”).

The federal courts' authority to review state court criminal convictions pursuant to writs of habeas corpus is severely restricted when a petitioner has failed to follow applicable state procedural rules in raising a claim, that is, where the claim is procedurally defaulted. Federal review of a petitioner's claim is barred by the procedural default doctrine if the last state court to review the claim states clearly and expressly that its judgment rests on a procedural bar, and that bar provides and adequate and independent state ground for denying relief. The doctrine serves to ensure petitioners will first seek relief in accordance with state procedures, and to “lessen the injury to a State that results through reexamination of a state conviction on a ground that a State did not have the opportunity to address at a prior, appropriate time.” McCleskey v. Zant, 499 U.S. 467');">499 U.S. 467, [493], 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991).

Johnson v. Singletary, 938 F.2d 1166, 1173 (11th Cir. 1991) (en banc) (internal citations omitted).

         Absent some justifiable reason for not applying the doctrine, federal deference to a state court's clear finding of procedural default under its own rules is exceedingly strong.

“[A] state court need not fear reaching the merits of a federal claim in an alternative holding. Through its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law. Harris [v. Reed], 489 U.S [255, ] 264 n.10, 109 S.Ct. 1038');">109 S.Ct. 1038 [(1989)] (emphasis in original). See also Alderman v. Zant, 22 F.3d 1541, 1549-51 (11th Cir. 1994) (where a Georgia habeas corpus court found that the petitioner's claims were procedurally barred as successive, but also noted that the claims lacked merit based on the evidence, “[t]his ruling in the alternative did not have the effect ... of blurring the clear determination by the [Georgia habeas corpus] court that the allegation was procedurally barred”)[.]

Bailey, 172 F.3d at 1305.

         Courts have recognized three circumstances in which a state court's denial of a federal law claim on an otherwise valid state-law ground will not bar a federal habeas court from considering that federal claim on habeas review: (i) where the petitioner demonstrates that he had good “cause” for not following the state procedural rule and that he was actually prejudiced by that alleged constitutional violation; (ii) where the state procedural rule was not “firmly established and regularly followed”; or (iii) where failure to consider the petitioner's claim will result in a “fundamental miscarriage of justice.” Edwards v. Carpenter, 529 U.S. 446, 455 (2000) (Breyer, J., concurring) (citations omitted); see also, e.g., Coleman v. Thompson, 501 U.S. 722, 749-50 (1991) (holding that a state court procedural default “will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice”) (internal citations and quotation marks omitted); Murray v. Carrier, 477 U.S. 478, 496 (1986) (“[W]here a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.”).

         III.Claims for Relief

         Smith, through counsel, has asserted a number of claims in his § 2254 petition. The court addresses each one, in turn.

         A.Whether the Alabama Court of Criminal Appeals Unreasonably Adjudicated Smith's Claims that the Prosecution Unconstitutionally Struck Jurors on the Bases of Gender, Race, and National Origin

         Smith's first two claims assert that the trial prosecutor exercised his peremptory strikes at the trial to “purposely eliminate[ ] women from the jury, ” “eliminate African-American venire members, ” and eliminate the sole Hispanic veniremember. (Doc. # 1 at ¶¶ 47, 78). Because these two claims involve the same legal analysis, the court addresses them together. As part of his first ground for relief, Smith argues that the Alabama Court of Criminal Appeals unreasonably applied Batson v. Kentucky, 476 U.S. 79 (1986), and J.E.B. when reviewing his Batson claims. (Id. at ¶ 41). As an initial matter, because Smith raised these claims in the state courts on direct appeal, and the Court of Criminal Appeals denied them on the merits, these claims are exhausted for purposes of federal review. See Smith II, 838 So.2d at 425-36, 464-66. Smith contends that the Alabama courts' determination that the trial prosecutor had genuine, race-neutral and gender-neutral reasons for striking women from his jury was unreasonable in light of the facts and unreasonably applied Batson and J.E.B.[4] The court disagrees.

         In reviewing whether a prosecutor intentionally used peremptory strikes to discriminate against a protected class of jurors, a federal habeas court necessarily relies heavily on the state trial court's “evaluation of the prosecutor's state of mind based on demeanor and credibility.” Hernandez v. New York, 500 U.S. 352, 364-65 (1991). Credibility determinations regarding a prosecutor's motivations “lie peculiarly within a trial judge's province.” Davis v. Ayala, 135 S.Ct. 2187, 2201 (2015) (quoting Snyder v. Louisiana, 552 U.S. 472, 477 (2008)). Thus, the Supreme Court requires that this court defer to the state court's evaluation of a petitioner's Batson/J.E.B. challenge unless “exceptional circumstances” exist for not deferring. Id. The court acknowledges that the deference owed to the state trial court is not insurmountable, but concludes in this case that Smith's allegations do not present the type of “exceptional circumstances” that merit federal habeas relief for the alleged Batson and J.E.B. violations. Id.

         1. Standard of Review

         A prosecutor's motive in striking a juror is a factual issue, and a state court's factual findings are presumed correct on federal habeas corpus review. 28 U.S.C. § 2254(d)(2), (e)(1); Miller-El v. Dretke (“Miller-El II”), 545 U.S. 231, 240 (2005). In seeking habeas relief, Smith bears the burden of rebutting that presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Miller-El II, 545 U.S. at 240; Hernandez, 500 U.S. at 364 (“Batson's treatment of intent to discriminate as a pure issue of fact, subject to review under a deferential standard, accords with our treatment of that issue in other equal protection cases.”). See also Lee v. Comm'r, Alabama Dep't of Corr., 726 F.3d 1172, 1207 (11th Cir. 2013) (applying the “highly deferential standard” from the Antiterrorism and Effective Death Penalty Act (“AEDPA”) to the state appellate court's Batson decision). Smith must also show that the state court's finding of the absence of purposeful discrimination was incorrect by clear and convincing evidence and that its denial of the Batson claims was “objectively unreasonable” under § 2254(d)(2). Miller-El v. Cockrell, 537 U.S. 322, 339 (2003) (“Miller-El I”); see also Davis, 135 S.Ct. at 2199 (“A federal habeas court must accept a state-court finding unless it was based on ‘an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'”); Felkner v. Jackson, 562 U.S. 594, 598 (2011) (“On federal habeas review, AEDPA ‘imposes a highly deferential standard for evaluating state-court rulings' and ‘demands that state-court decisions be given the benefit of the doubt.'”) (quoting Renico v. Lett, 559 U.S 766, 773 (2010)).

         2. Discussion of Smith's Gender-Based Batson/J.E.B. Claims

         The Equal Protection Clause prohibits the use of peremptory strikes against potential jurors based on a juror's race or gender. See generally J.E.B., 511 U.S. 127');">511 U.S. 127; Batson, 476 U.S. 79. The Supreme Court has set out a three-step inquiry to evaluate whether a prosecutor's use of peremptory strikes was discriminatory. Batson, 476 U.S. at 96-98. The Supreme Court summarized this inquiry in Miller-El I. First, the defendant must make a prima facie case that the prosecutor exercised a peremptory challenge on the basis of race or gender; second, if the trial court finds that a prima facie case has been established, the prosecutor must offer a permissible, non-discriminatory justification for its peremptory strike; and, third, the trial court must decide whether the defendant has shown purposeful discrimination despite the proffered reasons. Miller-El I, 537 U.S. at 328-29.

         With regard to Smith's claim of purposeful discrimination against female veniremembers, Batson's threshold inquiry and its first and second steps are established. Women are a cognizable group for Batson purposes. See generally J.E.B., 511 U.S. 127');">511 U.S. 127. On direct appeal, the Court of Criminal Appeals held that Smith had established a prima facie showing of gender discrimination. Smith I, 698 So.2d at 1169. On remand to the trial court, the prosecution proffered non-discriminatory reasons for those strikes. Smith II, 838 So.2d at 426-27. Therefore, the issue before this court centers on whether the Alabama courts' finding that Smith failed to carry his burden of showing purposeful discrimination under Batson's third step was unreasonable in light of the state court record. See Adkins v. Warden, Holman CF, 710 F.3d 1241, 1250 (11th Cir. 2013).

         a. Peremptory Strikes of Prospective Jurors Based on Church Activities

         Smith alleges that the prosecutor's peremptory strikes of five female venirepersons --Karen Marlar, Margaret Plyler, Dorothy Long, Glenda Freeman, and Leigh Cosby -- because of their church volunteer activities were discriminatory. (Doc. # 1 at ¶¶ 50-58). Smith argues that the prosecutor exercised those strikes because of the five panelists' gender based on the prosecutor's pattern of strikes against female jurors and the absence of any questioning related to “the jurors' religious attitudes and beliefs.” (Id. at ¶ 50). Smith also contends that the record shows inconsistent treatment between the struck jurors and those who were not struck. (Id. at ¶ 55). The court first discusses the peremptory strikes employed against the four female venirepersons who were struck solely on the basis of church involvement (Cosby, Long, Marlar, and Plyer).

         At the trial court's Batson hearing, the prosecutor summarized his reasons for the strikes as follows: (1) Cosby was struck because she worked at a church in the kindergarten class; (2) Long was struck because she was a church volunteer, a Sunday School teacher, and a volunteer with the Red Cross; (3) Marlar was struck because she was a Sunday School leader; and (4) Plyler was struck because she did volunteer work at a church and was the church's counselor of ministry. Smith II, 838 So.2d at 426-27. According to Smith, the prosecutor asked no questions at all of veniremembers Long, Marlar, or Plyler and only one question, unrelated to religious beliefs, of Cosby. (See Doc. # 1 at ¶ 51). During the remand hearing, the prosecutor explained that he struck these potential jurors on the basis of their church activities because he believed that they would be more receptive to the defense's arguments for mercy at sentencing in a capital case:

I struck a lot of these [veniremembers] because they worked in the church; Sunday School teachers and Sunday School leaders, and things of that nature, and from people that I knew the defense counsel, if it came to the second phase of the sentencing hearing, would be asking the jurors to show mercy. And, it was my opinion that this argument would be receptive to someone who worked in the church and was well versed in the Bible more than someone who was not; be a female or male juror that was a strong worker in the church. No male jurors that was [sic] left seated on the jury worked in the church. …
So, that is why I took into consideration when someone was a Sunday School leader, or Sunday School teacher, or someone that was well versed in the church, that that argument would be more receptive toward that juror as far as returning an advisory verdict of life without parole instead of death.

Smith II, 838 So.2d at 427.

         Smith's counsel challenged the reasons proffered at the remand hearing as pretexual and argued that the prosecutor did not question these potential jurors about their church activities during panel or individual voir dire. Id. at 428. The record shows that the information about veniremembers' religious activities was elicited during the defense's voir dire questions. (State Court Record, Vol. 3, at 297-304). The defense further noted that the prosecutor did not strike a female venireperson who also answered that she was a volunteer Sunday school teacher and on her church's board. Smith II, 838 So.2d at 427-29; (State Court Record, Vol. 3, at 299-300).

         The trial court credited the prosecutor's reasons for striking Cosby, Long, Marlar, and Plyler based on their church activities, finding that “the Court finds no juror was struck by the State for the reason that she was a female.” (State Court Record, Vol. 13, Remand Hearing Transcript at 26). The trial court credited the prosecutor's testimony and observed that he was “certainly not a person prone to strike minorities denounced in the Batson case and its progeny.” Smith II, 838 So.2d at 436; (State Court Record, Vol. 34, Tab R-71 at 026). The trial court based that finding on “extensive in court experience with [the prosecutor] and close acquaintanceship with others that know him.” (State Court Record, Vol. 34, Tab R-71 at 026).

         On return to remand, the Alabama Court of Criminal Appeals acknowledged that the prosecutor had failed to ask potential jurors about their religious affiliations or duties and asked no follow-up questions to the defense's voir dire. Smith II, 838 So.2d at 430. “Moreover, ” the Court of Criminal Appeals noted, “each of these jurors who was struck by the prosecutor based on her religious undertaking had previously affirmed that she would have no problem imposing the death penalty.” Id. Nevertheless, the Court of Criminal Appeals affirmed the trial court's finding that the proffered reasons for the challenged strikes “were sufficiently facially gender neutral.” Id. at 436.

         Smith relies on the prosecutor's failure to strike three other veniremembers with religious affiliations as proof of the State's disparate treatment of female potential jurors, and, thus, evidence that the State's proffered ground for the strikes under discussion was a pretext for gender discrimination. (Doc. # 1 at ¶¶ 51, 54-55). In Smith's comparative juror analysis, he argues that the prosecutor left three panelists on the venire -- Mr. Johnson, Mary Parham, and John Hall -- who possessed the same characteristics as those female venirepersons who were struck for religious affiliations. (Doc. # 39 at 15-17). John Hall, who was the defense's twelfth strike, was a football coach at a Young Men's Christian Association (YMCA) chapter. (State Court Record, Vol. 3, at 298). Mary Parham, who stated during voir dire that she was a youth director at a Sunday school, was a deputy with the Jefferson County Sheriff's Department, and was the last defense strike. (See Id. at 152, 203, 304). Parham served as an alternate juror. (Id.; Vol. 9, at 1445).[5]

         Although “side-by-side” comparisons of venirepersons who were struck and other panelists who were allowed to serve may be used to show disparate treatment, see Miller-El II, 545 U.S. at 241, the comparisons Smith relies upon here are tenuous. One of Smith's “comparators” was a female. The prosecutor's failure to strike an additional woman does not indicate gender discrimination, particularly as the empaneled juror, Mary Parham, could have been viewed as a favorable juror by the prosecutor because she was a sheriff's deputy. (See State Court Record, Vol. 3, at 152, 203, 304). Hall's coaching of a youth YMCA football team is simply not analogous to church volunteer activity, nor does it necessarily indicate his religious affiliation or his susceptibility to pleas for mercy grounded in the Christian faith. As stated earlier, the prosecutor testified that he struck Cosby, Long, Marlar, and Plyler because they might be more susceptible to a plea for Christian mercy. Smith II, 838 So.2d at 427. Therefore, a comparison between the struck veniremembers and Hall provides little, if any, evidence indicating the prosecutor's discriminatory intent.

         As for Plaintiff's claim that the prosecutor failed to strike “Mr. Johnson” due to his religious volunteer activity (see Doc. # 39 at 15-16), there was not anyone in the venire pool named Johnson (State Court Record, Vols. 2 at 134-54; 3 at 155-61), and the court cannot discern which veniremember indicated membership on a church board. (Id., Vol. 3, at 300). To be sure, the transcript indicates that a juror named “Mr. Johnson” indicated membership on a church board (id.); however, the venire pool did not contain any member with the surname of Johnson. (See id., Vols. 2 at 134-54; 3 at 155-61). Smith has not shown (much less asserted) which juror is the one the transcript referred to as “Mr. Johnson.” (See Doc. # 39 at 13, 15-16). The court cannot determine whether it was a male juror who was not struck, and, if so, the other characteristics of that juror. Therefore, the court cannot rely upon a comparison between the struck female veniremembers and “Mr. Johnson” to conclude that the Court of Criminal Appeals made an unreasonable decision or an unreasonable determination of fact when it affirmed the trial court's denial of Smith's Batson/J.E.B. claim.

         But, even putting aside that issue, the prosecutor's rationales do not suggest the type of post-strike rationalizations for pretextual discrimination condemned in Miller-El II. The Court of Criminal Appeals reasonably affirmed the trial court's factual finding that the prosecutor gave credible reasons for striking veniremembers. Simply stated, Smith's case is not comparable to others in this circuit in which courts have granted habeas relief to § 2254 petitioners for Batson claims. As another court in this circuit has observed, if the female potential jurors struck by the prosecutor had been the only women in the venire, or if all other women had been struck from the jury, a gender-neutral reason “otherwise unsupported by the record would provide strong evidence of intentional discrimination.” McNair v. Campbell, 307 F.Supp.2d 1277, 1298 (M.D. Ala. 2004), rev'd in part on other grounds, 416 F.3d 1291 (11th Cir. 2005). See also United States v. Puentes, 50 F.3d 1567, 1578 (11th Cir. 1995) (concluding that the presence of four African-American jurors on defendant's jury was “a significant factor tending to prove the paucity of the claim”). In this case, though, the record shows that five women served on Smith's jury as deliberating jurors.[6] (State Court Record, Vol. 34, Tab R-71 at 018). While the prosecutor's use of fourteen of his fifteen strikes against women suggests some pattern of strikes, Smith's trial jury ultimately had five women and seven men, which significantly weakens the strength of his prima facie discrimination case. Cf. Adkins, 710 F.3d at 1255 (concluding that a prosecutor's use of peremptory strikes to exclude nine of eleven potential black jurors, resulting in only one black juror serving on the petit jury, was a disparity unlikely to have occurred by chance); McGahee v. Alabama Dep't of Corr., 560 F.3d 1252, 1267 (11th Cir. 2009) (observing a strong prima facie case where, combining the prosecution's cause and peremptory strikes, the prosecution struck 24 African-American jurors, leaving an all-white jury in a county which was 55 percent African-American); Bui v. Haley, 321 F.3d 1304, 1309, 1314 (11th Cir. 2003) (finding a Batson violation where the prosecution failed to present race-neutral reasons from the prosecutor who actually used 9 of his 13 strikes to remove African-Americans from the jury and presented no reason for striking 1 black venireperson). Smith's counsel did not suggest that the State prosecutor's office had a history of discriminatory strikes against women. Nor did he suggest that the case presented a sensitive subject matter that would have incentivized the prosecutor to strike women. See United States v. Ochoa-Vasquez, 428 F.3d 1015, 1045 n. 39 (11th Cir. 2005) (“In some Batson claims, the subject matter of the case may be relevant if it is racially or ethnically sensitive.”). For these reasons, Smith did not provide a particularly strong prima facie case, such as the prima facie discrimination cases presented in Adkins or McGahee. Accordingly, the court cannot rely on Smith's prima facie gender-discrimination case alone as substantial evidence that the Court of Criminal Appeals unreasonably adjudicated this claim.

         Moreover, Smith has not presented strong side-by-side comparisons between female veniremembers who were struck for their religious volunteer activities and male veniremembers who were not struck by the prosecutor. As discussed above, Hall's coaching activities do not suggest that he was as invested in his religious beliefs in the same manner as veniremembers who served as church volunteers, Sunday School teachers, or ministry counselors. See Smith II, 838 So.2d at 426-27 (describing the volunteer activities conducted by veniremembers Cosby, Long, Marlar, and Plyler). The transcript suggests that another unidentified juror (i.e., one who was identified by the wrong name) was a church board member, but the court cannot compare that unidentified juror to those struck by the State through its peremptory challenges. (See State Court Record, Vol. 3, at 300). Finally, Parham was a female juror, so the State's failure to strike her does not indicate the prosecutor's discriminatory intent against women.

         The state court record here does not support a conclusion that Hall, “Johnson, ” and Parham were so similarly situated to the struck female venirepersons that the prosecutor's facially race-neutral reasons must have been pretextual. Although they shared some characteristics of the struck jurors, the state court record does not show that they were indistinguishable in other relevant characteristics. Smith's simplistic argument does not account for other counter-factors. In sum, a comparison between the struck jurors and the ones that the prosecutor did not strike was not so close that a court could only conclude that the proffered reasons were a pretext for purposeful discrimination against women. Cf. Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam).

         b. Peremptory Strike of Venireperson Freeman

         Smith also contends that the prosecutor used a peremptory strike to remove Glenda Freeman because of her gender. (Doc. # 1 at ¶¶ 59-61). The prosecutor asserted that Freeman was stuck for being a church youth minister and for having had legal training. (State Court Record, Vol. 13, Remand Hearing Transcript at 24). But, Smith argues that these reasons were pretextual because the prosecutor did not strike two male venirepersons with similar legal training. (Doc. # 1 at ¶ 61). According to Smith, Freeman did not reveal any church activities during her voir dire testimony. (State Court Record, Vol. 13, Remand Hearing Transcript at 34). However, the prosecutor insisted at the remand hearing that he had personal knowledge of her church involvement. (Id. at 48). Because she was one of the final jurors stricken from the venire pool, Freeman served as an alternate on Smith's jury and was dismissed before deliberations. (Id., Vol. 9, at 1445).

         At the Batson remand hearing, the prosecutor also emphasized Freeman's legal training as a reason that he struck her. (Id., Vol. 13, Remand Hearing Transcript at 24-25). Freeman had taken criminal law and criminal procedure law school classes from both the prosecutor and Smith's defense lawyer, as well as classes from a prominent criminal defense lawyer in Birmingham. (Id., Vol. 4 at 456-57; Vol. 13, Remand Hearing Transcript at 25-27). Freeman stated during voir dire that she believed she would be “influenced” by those classes. (Id., Vol. 3 at 250-51), The prosecutor believed that this influence “would not be good for [the prosecution].” (Id., Vol. 13, Remand Hearing Transcript at 26-27). The trial court and the Alabama Court of Criminal Appeals credited these reasons as plausible and non-discriminatory. Smith II, 838 So.2d at 436; (State Court Record, Vol. 34, Tab R-71 at 025-026).

         Smith argues that both of the prosecutor's proffered justifications for striking Freeman, while facially gender-neutral, do not withstand scrutiny. As an initial matter, Smith points out that Freeman said during voir dire that her connection to the trial attorneys through her law school classes would not interfere with her consideration of the evidence, thus affirming her fitness to be a juror. (Doc. # 39 at 17-18). Smith also contends that, while Freeman was struck due to her law school training, the prosecutor did not strike two male venirepersons, James Buettner and Dale Morgan, who also identified themselves as either studying law or having taken criminal justice courses in the past. (Id. at 18-19). Morgan ultimately served as one of Smith's jurors. (Id. at 18).

         In reviewing a comparative juror analysis under Batson, a relevant factor is whether the prosecutor has articulated a credible “connection between the [gender]-neutral characteristic identified and the desirability of a prospective juror.” Jamerson v. Runnels, 713 F.3d 1218, 1229 (9th Cir. 2013) (citing Rice v. Collins, 546 U.S. 333, 341 (2006)); see also Taylor v. Sec'y, Dep't of Corr., 507 F.App'x 887, 891 (11th Cir. 2013) (holding that the State's use of a peremptory challenge to strike an African-American juror because the juror's brother was a police officer “was not unreasonable as an individual's understanding of the criminal justice system could be a reason that a prosecutor would not want that individual on the jury.”)

         A state court's finding that a prosecutor acted in a race-neutral and gender-neutral fashion in striking potential jurors is difficult to overcome “on the basis of a cold record.” Rice, 546 U.S. at 343 (Breyer, J., concurring). Smith's comparison between Freeman and the male jurors who were not struck falls far short of showing that the prosecutor struck Freeman due to any discriminatory intent. When the facts permit “two permissible views of the evidence, ” as is the case here, “the factfinder's choice between them cannot be clearly erroneous.” Hernandez, 500 U.S. at 369 (quoting Anderson v. Bessemer City, 470 U.S. 564, 574 (1985)). Simply put, a wide gulf exists between the isolated criminal justice course Morgan took and the extensive legal training Freeman had received, which included classes from counsel involved in the case. (See State Court Record, Vol. 3, at 277-78). Additionally, the record does not indicate how much legal training Buettner had received before the trial began. (See Id. at 196 (indicating that Buettner affirmatively responded to the prosecutor's question of whether he had studied law)). The Alabama Court of Criminal Appeals could have reasonably determined that Freeman's legal training was a non-pretextual reason for the prosecutor's strike. See Sifuentes v. Brazelton, 825 F.3d 506, 527 (9th Cir.), (concluding that, although the stricken veniremember had not practiced law, “the prosecutor may have reasonably been concerned that a person with legal training would exhibit the behaviors on a jury that the prosecutor feared”), cert. denied, 137 S.Ct. 486 (2016). This is especially true because neither Morgan nor Buettner stated that their legal training would influence their perception of the case, whereas Freeman confirmed that it would influence hers. (State Court Record, Vol. 3, at 250-51). Given the deferential standard afforded to the trial and state court's determination under the AEDPA, this court cannot conclude with a “definite and firm conviction that a mistake has been committed.” Hernandez, 500 U.S. at 370 (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Indeed, just the opposite is true. Therefore, this claim is due to be denied.

         c. Peremptory Strike of Prospective Juror Carolanne Roberts

         Smith further contends that the prosecutor's strike of Carolanne Roberts was not gender neutral. (Doc. # 1 at ¶ 69). During voir dire, Roberts stated that she was a travel writer for Southern Living magazine. (State Court Record, Vol. 3, at 270). The prosecutor testified that he struck Roberts because, as a journalist, she might ask questions about the “who, what, where, when, and why” of the offense. (Id., Vol. 13, Remand Hearing Transcript at 19-20). And, the prosecutor believed that the reasons why Smith committed the murder would not favor the sentence the State sought. (Id. at 20-21). The prosecutor further recounted his concern that a journalist might be more sympathetic to the defense's penalty phase argument for mercy based on Smith's deprived background. (Id. at 20). Smith contends that these proffered reasons were illegitimate because the prosecutor failed to question Roberts during voir dire about her occupation or whether being a reporter might affect her ability to be a juror. (Doc. # 1 at ¶ 69). This failure to question Roberts, Smith argues, belies the prosecutor's explanation that Roberts' job was significant in his decision to peremptorily strike her. (Id.). Batson, however, requires only that the prosecutor offer a legitimate, non-discriminatory reason for a peremptory that does not violate the Equal Protection Clause. Purkett, 514 U.S. at 768-69. There may be a number of reasons why an attorney may not ask specific questions in an area which is already concerning to him (e.g., not eliciting an unfavorable response in front of the venire, conservation of voir dire time, and the need to focus questions on other members of the panel). And, peremptory strikes based on a veniremember's occupation generally have been upheld as gender-neutral. See United States v. Steele, 178 F.3d 1230, 1235 (11th Cir. 1999); J.E.B., 511 U.S. at 142 n. 14. The evidence in the state court record about the strike of Carolanne Roberts is insufficient for the court to find that the Alabama Court of Criminal Appeals adjudicated this claim unreasonably.

         3. Discussion of Smith's Batson Claims Based on Race and National Origin Discrimination

         As part of his second claim, Smith argues that the prosecutor engaged in purposeful discrimination when he struck Lourdes Ramos. (Doc. # 1 at ¶ 68). Smith contends that the prosecutor considered not only Lourdes's Hispanic origin but also her gender in striking her. (Id.). In addition, Smith claims that the prosecutor discriminated against African-Americans by using five peremptory strikes against African-American women. (Id. at ¶¶ 78, 80).

         At trial, Smith's counsel raised three objections to the prosecutor's use of his peremptory strikes. He first asserted that the prosecutor had used 14 of his 15 strikes against women. (State Court Record, Vol. 4, at 453). Next, he claimed that the prosecutor struck the only Hispanic member of the venire pool, Ramos. (Id. at 453-54). He noted that the prosecutor had asked no questions of Ramos and had used his seventh strike to remove her from the jury. (Id. at 454). Moreover, Smith's counsel highlighted the racial sensitivity of the case, which involved a black defendant and a white victim. (Id. at 460).

         Finally, Smith's attorney contested the prosecutor's decision to strike five black jurors.[7](Id. at 461). Counsel argued “that [Jefferson County's] prosecutor's office has been reversed on many, many, many occasion for systematically excluding blacks.” (Id.). The trial court disagreed with counsel's characterization of the prosecutor's office, and counsel replied that he had previously “reversed them myself.” (Id.). The court observed that one black juror “lean[ed] to the defendant, another black juror “ha[d] a problem with capital punishment, ” and a third black juror was “nervous” and did not “want to see the pictures.” (Id. at 463). Ultimately, the trial court found that defense counsel had failed to present a prima facie case of race discrimination under Batson. (Id. at 464).

         On direct appeal, the Alabama Court of Criminal Appeals determined that Smith had made a prima facie showing of discrimination and remanded his case for a Batson hearing in which the prosecutor would provide his reasons for striking fourteen of the fifteen women in the venire. Smith I, 698 So.2d at 1169. The Court of Criminal Appeals specifically noted in its opinion that “juror no. 210 [Ramos] was struck without having been asked any questions.” Id.

         At the remand hearing, the prosecutor explained that he had struck Ramos because she had failed to answer any questions during the questioning, she was especially young, and she was single. (State Court Record, Vol. 34, Tab R-71 at 023-024). As the prosecutor elaborated:

when you enter a voir dire, and you are looking at the child, and she is looking scared back there in the middle of a courtroom, you can look over her and say, Ms. Ramos, you haven't said nothing to us today. Why don't you tell us something about yourself? And, again, I have to do that with all the other jurors or I will be picking on her, and then sometimes that backfires.

(Id., Vol. 13, Remand Hearing Transcript at 13). The prosecutor added that Ramos was “just nonresponsive, and a kid of this nature, with her age, I just thought she was a bit young to take a chance on having her on the jury, and that's about it.” (Id. at 13-14). The trial court credited the prosecutor's explanation for his strike of Ramos. (State Court Record, Vol. 34, Tab R-71 at 026). On return to remand, the Court of Criminal Appeals affirmed the trial court's finding that the prosecutor's explanations for the challenged strikes were facially gender-neutral and that the prosecutor did not violate J.E.B. Smith II, 838 So.2d at 436.[8] This claim thus has been exhausted for federal review.

         In addition to affirming the trial court's finding that the prosecutor had not discriminated against women in his peremptory strikes, the Court of Criminal Appeals also affirmed the trial court's finding that defense counsel had failed to present a prima facie case of discrimination for his other Batson claims. Smith II, 838 So.2d at 464-66. With regard to the prosecutor's strikes of African-American veniremembers, the Court of Criminal Appeals determined that defense counsel had provided no evidence to support an inference of discrimination other “than the fact that five of black potential jurors were struck.” Id. at 466. With regard to the prosecutor's strike of Ramos, the sole Hispanic veniremember, the Court of Criminal Appeals concluded that there was no “pattern of discrimination” because there had been only one Hispanic individual in the venire pool. Id. The Court of Criminal Appeals discovered “no indication [of discriminatory intent] from the questioning of the prosecutor.” Id. “Furthermore, because the appellant's Batson motion concerning the striking of the one Hispanic potential juror was based solely on the fact that he was asked no question by the prosecutor, the appellant failed to establish a prima facie case, as this Court has held that such facts alone do not create a sufficient inference of discrimination.” Id. Finally, the Court of Criminal Appeals observed that the prosecutor asked Ramos questions “along with the rest of the veniremembers, . . . although she failed to respond to any of these questions.” Id.

         Again, under AEDPA, this court must consider whether the Court of Criminal Appeals unreasonably determined that (1) defense counsel failed to present a prima facie showing of discrimination on the grounds of race and national origin, and (2) the prosecutor provided a sufficiently race-neutral and gender-neutral explanation for striking Ramos. The court addresses these questions below.

         First, the Alabama Court of Criminal Appeals reasonably applied Batson and made no unreasonable determination of fact when it held that Smith had failed to establish a prima facie case of discrimination against African-Americans or Hispanics in the prosecutor's use of peremptory strikes. Smith II, 838 So.2d at 464-66. With regard to Smith's Batson claim for strikes against African-American jurors, the record demonstrates that the prosecutor used 5 of his 15 strikes against African-American veniremembers and that 5 African-American jurors remained after jury selection. (State Court Record, Vol. 4, at 448-49, 452). Thus, this case presents an especially weak statistical prima facie case of discrimination based on race (African-American). Cf. United States v. Hill, 643 F.3d 807, 838-39 (11th Cir. 2011) (concluding that the defendant presented no prima facie case of discrimination where the prosecutor had used 64 percent of his strikes against black jurors, the prosecutor could have struck 5 more black veniremembers, 9 jurors were black, and no other circumstances supported an inference of discrimination). Smith's defense counsel explained why some of the struck jurors were indistinguishable from male potential jurors in the venire pool, but he used those comparisons to support a gender-based Batson claim, not a race-based Batson claim. (See State Court Record, Vol. 4, at 453-58). The court has reviewed Smith's defense counsel's Batson arguments (see Id. at 448-61), but concludes that the Alabama Court of Criminal Appeals' finding that there was no prima facie showing of discrimination against African-American jurors was reasonable, given the especially weak statistical evidence of the prosecutor's intent to strike black jurors.[9]

         Second, the court concludes that the Court of Criminal Appeals reasonably affirmed the trial court's determination that defense counsel failed to establish a prima facie Batson claim regarding Hispanic jurors. The Court of Criminal Appeals correctly found no pattern of discrimination against Hispanic jurors, as there was only one Hispanic individual in the venire pool. See Smith II, 838 So.2d at 466. Smith's defense counsel complained of a history of discrimination against black jurors, but did not suggest that the prosecutor's office had a history of discrimination against Hispanic jurors. (State Court Record, Vol. 4, at 461). Additionally, to the extent that the case implicated racial concerns because it involved an African-American defendant and a white victim, the Court of Criminal Appeals reasonably could have found that fact irrelevant to a prima facie showing of discrimination against Hispanic veniremembers because the crimes at issue did not involve a Hispanic individual.[10] (See Id. at 460). For these reasons, Smith has established no basis for habeas relief on his Batson claims of race discrimination and national origin discrimination.

         Third, and in any event, even if the Court of Criminal Appeals unreasonably applied the first prong of Batson when analyzing Smith's national-origin Batson claim (and, to be clear, the Court of Criminal Appeals reasonably applied that precedent), that court reasonably applied the third prong of the Batson test when finding that the prosecutor presented credible non-discriminatory reasons for striking Ramos. Smith maintains that the prosecutor's reasons for striking Ramos were merely a pretext for gender and national origin discrimination. (Doc. # 1 at ¶ 68). He points to the prosecutor's decision not to strike two male venirepersons who sat on the jury, Mark Roddam, and William T. Pesnell, even though they shared similar characteristics with Ramos. (Id. at ¶ 64). Like Ramos, Roddam and Pesnell were single. (State Court Record, Vol. 3, at 155-56). However, the similarities end there. That is, Smith's comparison does not take into account the additional reasons that the prosecutor provided for striking Ramos -- her youth and her lack of responsiveness -- which are relevant and gender-neutral reasons to strike a panelist and are also differences between Ramos and the two male jurors who Smith argues were similarly-situated. The prosecutor's explanations emphasized Ramos' age and the fact that he knew nothing about her as the primary factors as motivating his choice. And, the state trial and appellate courts credited those reasons as nondiscriminatory under J.E.B. and Batson. Smith II, 838 So.2d at 436 (“In the present case, the prosecutor came forward with a facially neutral explanation for striking these potential jurors; his reasons based on religion were facially neutral to a claim of discrimination based on gender.”). The court perceives no ground for disturbing this finding.

         Smith next argues that the prosecutor's explanation for striking Ramos is not compelling (at least, not compelling to his counsel). But, it need not be. As the Supreme Court has noted in Rice, 546 U.S. at 341-12, a state trial court's decision to credit a prosecutor's race-neutral explanation for a peremptory strike of a young African-American female for being young and rolling her eyes during voir dire was not an unreasonable factual determination. The Court in Rice reiterated that a prosecutor's explanation for striking a challenged juror need not be particularly “‘persuasive, or even plausible'; so long as the reason is not inherently discriminatory, it suffices.” Id. at 338 (quoting Purkett, 514 U.S. at 767-768). “Reasonable minds reviewing the record might disagree about the prosecutor's credibility, but on habeas review that does not suffice to supersede the trial court's credibility determination.” Id. at 341-42. As in Rice, Smith's allegations are insufficient to “supersede the trial court's credibility determination” under § 2254(d)'s deferential standard of review. Id. The evidence in the state court record presents no evidence that raises an inference of a discriminatory motive.

         To warrant habeas relief, a petitioner must show that the state court's decision was objectively unreasonable, not merely incorrect. The Alabama Court of Criminal Appeals was persuaded that the prosecutor's justification for striking Ramos was nondiscriminatory. Smith II, 838 So.2d at 436. Because this court cannot conclude that the state court's decision was unreasonable in its application of the law or that its factual findings were incorrect by clear and convincing evidence, the writ cannot be granted on this claim. See Lockyer, 538 U.S at 75-76 (“[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.”).

         B. Whether this Court is Barred from Reviewing Smith's Allegation that the State's Administration of the Antipsychotic Drug Haldol During the Trial and Penalty Phase Violated Smith's Rights under the Fifth and Sixth Amendments

         Under the Due Process Clause of the Fourteenth Amendment, a defendant awaiting trial has “a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs.” Washington v. Harper, 494 U.S. 210, 221-22 (1990) (discussing how the liberty interest in avoiding unwanted medication applies to convicted prisoners); Riggins v. Nevada, 504 U.S. 127, 135 (1992) (providing that state pretrial detainees have a liberty interest under the Fourteenth Amendment in avoiding forced administration of antipsychotic medication). The Supreme Court has recognized that a significant liberty interest is implicated when a capital trial defendant is involuntarily medicated to the point that he or she is impaired in assisting counsel. See Sell v. United States, 539 U.S. 166, 179, 181 (2003). In light of that significant interest, if a state entity wishes to involuntarily administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges, the government must show that “the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests.” Id. at 179. The rights involved in involuntary medication are critical. Once it has been established that a defendant was involuntarily medicated during a criminal trial without the proper due process considerations, because of the “substantial probability of trial prejudice, ” prejudice is presumed. Riggins, 504 U.S. at 137-38.

         In his third argument for reversal, Smith alleges that his constitutional rights under Harper and Riggins were violated because he was inappropriately medicated with the anti- psychotic drug Haldol (Haloperidol) during his capital murder trial.[11] (Doc. # 1-1 at ¶¶ 96-102). According to Smith's counsel, the medication caused him to appear at trial as emotionless and unremorseful for his crimes, a demeanor that the prosecution commented upon during the guilt phase closing argument. (Docs. # 1 at ¶¶ 90-91; 1-1 at ¶¶ 91-92). For these reasons, Smith argues that the administration of Haldol violated his due process rights. (Doc. # 1-1 at ¶¶ 100-07). Smith further alleges that the inappropriate administration of Haldol compromised his Sixth Amendment right to counsel during his penalty phase and sentencing proceedings. (Id. at ¶¶ 96-99).

         The State counters that Smith's Harper/Riggins claim is precluded from federal habeas review because the Alabama state courts held that the claim was procedurally defaulted. (Doc. # 28 at 23-25). For the reasons explained below, the court concludes that this claim is due to be denied because the Alabama Court of Criminal Appeals denied it on an adequate and independent state ground.

         Smith's medical records apparently were not retained by the jail where he was housed during trial. Smith III, 112 So.3d at 1139. Therefore, there is no conclusive evidence of whether the State actually administered Haldol to Smith during his trial. (See State Court Record, Vol. 34, Tab R-74 at 10). More importantly, Smith has offered no evidence that he objected before or during his capital murder trial to any drug being administered to him involuntarily or otherwise given to him against his will. (See id.).

         At the Rule 32 hearing, Dr. William Morton, Jr., an expert in the field of psychopharmacology, testified for Smith and opined that, based on his review of Smith's Holman State Prison records, Smith showed symptoms of side effects from a reaction to Haldol and there was a high likelihood that Smith had been administered the drug while in jail custody during trial. (See State Court Record, Vol. 30, at 184-86 (describing symptoms that could have resulted from Haldol administration)). See also Smith III, 112 So.3d at 1139 (“In the ‘Progress Notes' from Holman Correctional Facility, the following entry states: ‘He [Smith] had apparently been given some Haldol in the County Jail, but there is no record of this in the file.'”). Dr. Morton's testimony was uncontroverted, and the Rule 32 court credited it. (State Court Record, Vol. 34, Tab R-74 at 10 (finding that the “evidence presented by the petitioner would appear to indicate that Willie Smith was [] taking Haldol at the time of trial”); 20 (stating that the “[c]ourt is of the opinion that the Petitioner has shown that it is more likely than not that Smith was taking Haldol at the time of his trial.”).

         1. Exhaustion and procedural bar

         Smith's constitutional claims related to administration of Haldol (hereinafter “medication claims”) are exhausted for purposes of federal habeas review because he previously presented them to the state courts, both in his Rule 32 proceedings and on collateral appeal. But, while Smith's claims may have been exhausted, the state trial court denied the claims as procedurally barred under Alabama Rule of Criminal Procedure 32.2(a)(3) and (a)(5) because Smith had not raised the claims at trial or on direct appeal. (State Court Record, Vol. 34, Tab R-74 at 10). The Alabama Court of Criminal Appeals affirmed that conclusion. Smith III, 112 So.3d at 1136-38.

         When a state prisoner defaults a claim in state court by violating an independent and adequate state procedural rule, “federal habeas review of the claims is barred 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.” Coleman, 501 U.S. at 750. This court must therefore consider whether Smith's claims are barred from federal habeas review because the Alabama courts “clearly and expressly” refused to review the medication claims' merits because of an independent and adequate state procedural rule. Id. at 735-36, 750; Harris v. Reed, 489 U.S. 255, 260-65 (1989).

         The court first turns to whether an “independent” and “adequate” state rule precludes Smith's medication claims. To determine if a state procedural rule is independent, firmly established, and regularly followed, the Eleventh Circuit Court of Appeals has applied a three-part test. First, the last reasoned state court decision in the case must have “clearly and expressly” relied on a state procedural rule to resolve the federal claim. Card v. Dugger, 911 F.2d 1494, 1516 (11th Cir. 1990). Second, the state court decision must have rested solidly on a state law ground that is not “intertwined with an interpretation of federal law.” Id. Finally, the state court's refusal to hear the claim must be based on a procedural rule that is “faithfully and regularly applied.” Id. at 1516-17.

         Although the state trial court heard and discussed the issue of medication allegedly administered during Smith's capital trial, it expressly concluded that the medication claims were barred by Rule 32(a)(3) and (a)(5), except for the ineffective assistance claim related to Haldol administration. (State Court Record, Vol. 34, Tab R-74 at 10 (“To the extent the argument does not relate to an ineffective assistance of counsel claim[, ] then it is precluded because it could have been raised at trial or on appeal but was not.”); 12 (recognizing that the due process claim was “procedurally barred”)). The Court of Criminal Appeals affirmed the trial court's application of those state procedural bars. Smith III, 112 So.3d at 1136-38. Accordingly, the court finds that the state court clearly and expressly relied on Alabama's procedural rules in refusing to review these claims. Moreover, the procedural bars of Alabama Rule of Criminal Procedure 32.2(a)(3) and (a)(5) were not intertwined with a question of federal law, and, thus, were independent state rules for the purposes of habeas review.

         A state procedural rule is adequate if it was “firmly established and regularly followed” at the time of the alleged procedural default. Ford v. Georgia, 498 U.S. 411, 424 (1991). In this case, the court does not write on a blank slate regarding the adequacy of Alabama's Rule 32 procedural bars to habeas review of constitutional claims. The Eleventh Circuit has recognized repeatedly that Rule 32.2(a)(3) and (a)(5) are “independent and adequate” state law rules that may bar claims from federal habeas review. 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.”); Holladay v. Haley, 209 F.3d 1243, 1254 & n. 9 (11th Cir. 2000) (recognizing that claims dismissed under Rule 32.2(a)(5) are procedurally barred in federal court), see also James v. Culliver, 2014 WL 4926178, at *10 (N.D. Ala. Sept. 30, 2014) (explaining that Rule 32(a) provides independent state procedural rules for deciding a claim). Therefore, binding precedent establishes that Rule 32.2(a)(3) and (a)(5) are independent and adequate state law grounds for adjudicating the Fifth and Sixth Amendment medication claims which bar federal habeas review.

         2. Cause and prejudice for the default

         Smith acknowledges that his Fifth and Sixth Amendment claims were not raised at trial or on direct appeal. (Doc. # 39 at 50). Nevertheless, he argues that there was sufficient “cause” for the default and that actual prejudice would result if this court does not review his claims. (Id. at 51, 54-55).

         To demonstrate cause for a procedural default, a petitioner must show that “some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). The Supreme Court has provided examples of objective impediments. A showing that “the factual or legal basis for a claim was not reasonably available to counsel … or that some interference by officials[ ] made compliance impracticable” can be cause for a procedural default. Id. (internal citations and quotation marks omitted). To demonstrate actual prejudice, a petitioner must show that the errors during his trial created more than a mere possibility of prejudice; he must show that the errors “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Id. at 494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)) .[12]

         Smith presents two claimed objective impediments as cause for his failure to comply with the state's procedural rules. (Doc. # 39 at 51-53). First, he asserts that the factual basis for this claim was not reasonably available to his trial and appellate counsel because “of the State's inadequate record-keeping, or outright deception” about Mr. Smith's medical treatment during trial. (Id. at 52). Second, if evidence that Smith was administered Haldol existed, Smith contends that his counsel was constitutionally ineffective for failing to discover and present it. (Id. at 52-54). The court addresses these arguments, in turn.

         The record does not support Smith's first contention that the evidence of his Haldol administration was not discovered because it was hidden or misplaced. Smith's trial counsel testified during the Rule 32 hearing that Smith did not inform her that he had received medication at the jail. (State Court Record, Vol. 29, Tab R-63 at 61-62). Smith relies on the trial court's observation that defense counsel could not have discovered the Haldol administration as evidence that the State concealed or destroyed the jail records. (See Doc. # 39 at 52 (citing State Court Record, Vol. 34, Tab R-74 at 11). But, the trial court's findings do not support a cause for failing to raise the Haldol administration issue at trial. The trial court never stated why the jail's medical records were unavailable at the time of the Rule 32 hearing. (See Id. at 10-12). Indeed, the trial court observed that it was “not clear that the Defendant actually took Haldol.” (Id. at 11). Simply put, Smith has not demonstrated that the State inappropriately failed to preserve medical records or that it hid facts from his counsel.

         Smith's second ground for cause was addressed by the Rule 32 court. The Rule 32 trial court found that Smith's attorneys were not ineffective for failing to investigate “non-obvious psychological problems that [were] not brought to their attention by their client.” (Id. at 20-21). The Rule 32 court found that Smith exhibited no behavior at trial that would have prompted counsel to investigate whether he was given Haldol, given that Smith's lack of communication and expressions could have reasonably been attributed to his personality and mental capacity rather than to medication. (Id. at 11, 21). Based upon the testimony of the witnesses and Smith's counsel during the Rule 32 hearing, the trial court found that Smith's attorneys were unaware he was being given Haldol and that they could not have discovered that fact through reasonable diligence. (Id. at 11). For these reasons, along with the reasons discussed below in the analysis of Smith's ineffective-assistance claim concerning counsel's allegedly inadequate investigation, Smith has not shown cause for failing to present the medication claims to the trial court or the Court of Criminal Appeals during his direct criminal proceedings.

         Smith points to several cases which have concluded that an involuntary administration of medication violated a defendant's rights where the medication was involuntarily supplied or where the provision of the medication could not be medically justified. Neither situation applies here, however. Smith's jail medical records are unavailable, and, thus, the record contains no confirmation that (1) Smith was administered Haldol during his criminal trial or (2) he objected to it being administered to him. And, even assuming the administration of the drug to Smith, he has not presented any evidence showing that the drug was medically unnecessary. In sum, Smith cannot show cause to excuse his failure to satisfy Alabama's procedural rules. Accordingly, because the Alabama Court of Criminal Appeals expressly relied on Rule 32(a)(3) and (a)(5) to decide Smith's constitutional medication claims, this court is barred from considering the merits of those claims.

         C. Whether Application of the Death Penalty to Smith Violates the Eighth Amendment to the United States Constitution and is Contrary to and an Unreasonable Application of Established United States Court Precedent

         Smith argues that he is intellectually disabled[13] and, as such, application of the death penalty to him would violate his Eighth Amendment rights. (Doc. # 1-1 at 8-19). The Supreme Court has held that imposing the death penalty on intellectually disabled individuals is “excessive and that the Constitution ‘places a substantive restriction on the State's power to take the life' of a mentally retarded offender.” Atkins v. Virginia, 536 U.S. 304, 321 (2002) (citing Ford v. Wainwright, 477 U.S. 399, 405 (1986)).

         The State makes no argument that Smith has failed to exhaust his Atkins claim. (See Doc. # 17 at ¶¶ 22-26). Nevertheless, for purposes of his petition, Smith's Atkins claim is deemed exhausted for purposes of federal habeas review, as he presented it in Rule 32 proceedings and on appeal to the Alabama Court of Criminal Appeals. In his petition, Smith argues that the state court failed to apply the proper legal test in determining that he did not prove that he was intellectually disabled. (Doc. # 1-1 at ¶ 112). He further argues that he exhibits subaverage intellectual functioning. (Doc. # 1-1 at ¶ 111). He specifically contends that he has a Full Scale Intelligence Quotient (IQ) of 64 as measured by the Stanford-Binet test. (Id. at ¶ 115). Smith's expert, Dr. Salekin, testified at the state post-conviction hearing that he had an IQ of 64 as measured by the Stanford-Binet test, and the State's expert, Dr. King, stated that he had no reason to question or doubt the numerical results of Dr. Salekin's IQ test. (10-11, 20-21). (Id. at ¶¶ 115-16 (see State Court Record, Vol. 29, Tab R-63 at 156; State Court Record, Vol. 30, Tab R-63 at 273-74)). According to Smith, neither the Circuit Court nor the State identified a specific error in Dr. Salekin's test results. (Id. at ¶ 116).

         Smith contends that other neuropsychological testing confirms that he has deficits in his executive functioning. (Id. at ¶ 118). He submits that the executive system is involved in carrying out goal-oriented behavior and includes skills such as planning, sequencing, self-monitoring, and mental flexibility - skills which are required to successfully carry out everyday activities. (Id. (citing State Court Record, Vol. 30, Tab R-63 at 130-32)). He alleges that he has various deficits in this system that affect his aptitude with respect to these skills. For example, Smith contends that his “Expressive Language Domain” is in the severely impaired range, and tests of his memory show only a second percentile score on the “Logical Memory I test.” (Id. at ¶ 119 (citing State Court Record, Vol. 30. Tab R-63 at 125, 127)). He also alleges that his score on the “Rey-O” test indicates that he had a moderate impairment in his ability to recognize visual information, which he contends would impact his ability to function in both school and work environments. (Id. at ¶ 120 (citing State Court Record, Vol. 30, Tab R-63 at 132-33). Smith further asserts that that his score on the “Trails B” test, which measures mental flexibility, indicates that he has a “mild impairment” in mental flexibility as compared to the general population, and that this impairment would prevent him from seeing multiple approaches to solving problems. (Id. at ¶ 121 (citing State Court Record, Vol. 30, Tab R-63 at 128-29)). Smith argues that these tests provide further evidence that he meets the definition of being intellectually disabled established by Atkins v. Virginia. (Id. at ¶ 122).

         Smith further argues that, while the IQ test performed by Dr. King rendered an IQ score over 70, IQ test results are typically reported in a “band” of plus or minus five points. (Id. at ¶ 117). Accordingly, while he received a full scale IQ score of 72 from Dr. King's test, he submits the range of likely scores based on that result extends as low as 67. (Id.). He also alleges that the “Flynn Effect” must be taken into account in assessing an individual's IQ score. The “Flynn Effect” is a theory that contends that IQ scores have been increasing over time and, as such, IQ scores must be recalibrated in order to reflect this increase. (Id. at ¶ 123). Smith provided evidence, through Dr. Salekin's testimony, that “although there is no national consensus regarding the application of the Flynn Effect to IQ scores, individuals in the mental retardation and forensics field agree that it should be used.” (Id. at ¶ 124 (citing State Court Record, Vol. 29, Tab R-63 at 160, 170)). The Flynn Effect purports to recalibrate an individual IQ score by lowering the score by 0.3 points per year (measured by the year the test was last calibrated) in order to account for the general rise in IQ scores. (Id. ¶ 127). Accordingly, if the Flynn Effect were applied to Smith's IQ score of 72 that he received on the IQ test that Dr. King administered, then the normed test result would be a 69. (Id.).

         Smith notes that application of the Flynn Effect has found some favor in the Eleventh Circuit. One district court, after a hearing on the merits of the issue of a defendant's mental retardation, concluded that the Flynn Effect was relevant in determining whether an IQ score was less than 70. Thomas v. Allen, 614 F.Supp.2d 1257, 1281 (N.D. Ala. 2009). The Eleventh Circuit affirmed the court's decision, reasoning that “[t]he question is not whether the district court's application of the Flynn effect to lower [the petitioner's] IQ scores was mandatory, but whether the district court's application of it in this case was clearly erroneous. We cannot say it was.” Thomas v. Allen, 607 F.3d 749, 757 (11th Cir. 2010). Smith contends that, in light of the Flynn Effect, and when the IQ result “band” of plus or minus five points is taken into account, the IQ test administered by Dr. King results in a score below 70. (Id. at ¶ 128). Of course, it has also been observed that “the Flynn effect ‘is not accepted in the general community' and is only seen in capital punishment litigation.” Ledford v. Warden, Georgia Diagnostic & Classification Prison, 818 F.3d 600, 627 (11th Cir. 2016) (noting district court findings). Smith argues that he satisfied his burden of proof to establish that he exhibits subaverage intellectual functioning. (Id.).

         Smith next argues that he exhibits limitations in adaptive skill areas, and those limitations manifested before the age of 18. Dr. Salekin evaluated his adaptive behavior using the Scales of Independent Behavior - Revised (SIB-R) to measure what skills Smith reflected at age 17. (Id. at ¶ 130). Dr. Salekin conducted this test by interviewing Smith's brother. (Id. at ¶ 131). Smith notes that the test revealed that his “overall functional independence” at age 17 was on the level of an average individual at age 11 years, 3 months. (Id.). Further, the test results suggested that at age 17 his motor skills were equivalent to a child of age 8 years, 5 months; his social interaction and communications skills were on the level of age 11 years; his personal living skills were on the level of age 12 years, 8 months; and his community living skills were on the level of age 13 years, 3 months. (Id.). Smith contends that all of these results demonstrate that he lacks functioning in certain key skill areas. Smith then argues that even the State's expert, Dr. King, found that he had “some difficulties with community use, health and safety, self-direction, social skills, and leisure skill.” (Id. at ¶ 133 (citing State Court Record, Vol. 30, Tab R-63 at 277)). Smith contends that the Circuit Court found that “Smith showed deficits in adaptive functioning based upon test results, ” but nonetheless found that he and had not sufficiently demonstrated that he met the adaptive functioning prong of Alabama's Atkins test. (Id. at ¶ 134). On review, the Alabama Court of Criminal Appeals did not find any error in that finding. (Id.). Smith contends that this determination by both Alabama courts was unreasonable, and is due to be set aside on habeas review.

         1. The Circuit Court's Rule 32 Order

         Smith raised his Atkins claim in his August 1, 2003 Rule 32 petition. Indeed, by the trial court's estimation, “[a] majority of the testimony taken at the evidentiary hearing related to the issue.” (State Court Record, Vol. 34, Tab R-74 Order at 2). The court noted that the testimony of the experts conflicted as it related to whether Smith has “significantly sub-average intellectual functioning.” (Id. at 3). Dr. Salekin testified that Smith had an overall IQ of 64. Dr. Salekin also testified that the Flynn Effect could lower the Defendant's IQ test score by more than two points; however, the court did not find Dr. Salekin's evidence regarding the Flynn Effect convincing enough to warrant a reduction in the IQ tests before the court. (Id.). Instead, the court noted that even Dr. Salekin agreed that there is no national consensus regarding whether the Flynn Effect should be applied to IQ scores, and accordingly determined not to apply the Flynn Effect to the IQ scores before it. (Id.). See Ledford, 818 F.3d at 627 (noting that “[t]he district court was ‘not impressed' by Ledford's evidence concerning the Flynn effect. The district court found Dr. Zimmerman (Ledford's expert) and Dr. King (the State's expert) both agreed that the Flynn effect was not used in clinical practice to reduce IQ scores, and neither had seen the Flynn effect applied to IQ scores outside the context of capital litigation.”). By contrast, here, Dr. King testified that Defendant had a verbal IQ of 75 and a performance IQ level of 74, which resulted in a full scale IQ of 72. (Id.). The court found both Dr. Salekin and Dr. King to be credible with an appropriate background to testify regarding IQ tests. (Id. at 3-4). However, the court credited Dr. King's overall IQ calculation as “probably more accurate than that determined by Dr. Salekin.” (Id. at p. 4). The court based this determination in part on the fact that Dr. King's test resulted in a verbal IQ calculation of 75, which is the exact score verbal IQ score that Smith had received on a prior IQ test.[14] (Id.).

         Having concluded that Smith had failed to satisfy his burden of demonstrating that his IQ was 70 or below, the Circuit Court then assessed Smith's adaptive function. (Id.). The court concluded that, “[a]lthough the Petitioner showed deficits in adaptive functioning based upon test results, the Petitioner did not show many, if any, actual examples of how his low IQ affected his adaptive functioning in everyday life before or after the incident in question.” (Id.). The court described Dr. Salekin's testimony on the adaptive functioning issue as follows:

As it relates to the adaptive functioning issue, Dr. Salekin testified that she administered the SIB-R test which includes interviewing a third person about the abilities of the person in question. According to Dr. Salekin, the SIB-R is one of many scales of adaptive behavior that tries “to evaluate a person's ability to function on a day-to-day basis.” Dr. Salekin testified that the results “show deficits in adaptive behavior for Willie Smith.” According to Dr. Salekin, she used this test because a self-administered test such as ABAS, which was administered by Dr. King, is not usually recommended to determine mental retardation since individuals often “overestimate their abilities.” Therefore, they use tests from individuals who know the person in question.
One of the “draw backs” to the SIB-R test is the individual's ability to remember past events, and Dr. Salekin agreed that the tests administered to the Petitioner's brother involved questions about behavior approximately 30 years prior to the test. Ideally one would want to administer the SIB-R test at the time in question rather than many years later because that is how the “test was normed.” On the SIB-R, Smith's “personal living skills indicated an age equivalency of 12 years, 8 months.
Dr. Salekin also administered the “Woodcock Johnson III test to determine current achievement levels, which relates directly to school function.” The “norm” or average on this test is a score of 100. The Defendant scored an 89 in ability to speak to others which is less than one standard deviation from the “norm” of 100. He scored an 84 in “oral expression” which also includes communicating orally with others and is “slightly more than one standard deviation below the mean.” Smith had a “pretty good” score of 93 in listening comprehension, an 88 in “broad reading”, a 92 in “broad math”, and a 97 in broad written language.” The Defendant also scored a 101 in calculation, 101 in math fluency, and 107 in spelling. These three scores were above the “mean” or above the national average score. Therefore, in math fluency the Defendant's grade equivalent was 12.9 and in spelling his grade equivalency was 13.9. According to Dr. Salekin these grades were “inconsistent… with a diagnosis that Mr. Smith would be mildly mentally retarded.” According to Dr. Salekin, the Defendant's 8.8 grade level in math, 8.5 grade level in broad written language, his 11th grade level in calculation, his 9.8 grade level in written skills, his 10.5 grade level in academic skills, his 12.9 grade level in math fluency, his 13.9 grade level in spelling, and his 8.4 grade level in oral comprehension are all inconsistent with a diagnosis of mental or mild mental retardation. Over an objection by counsel [of] the Petitioner, Dr. Salekin testified that she does not believe Smith has mental retardation. She reached this conclusion after doing “a full Atkins evaluation.”

(Id. at 4-5) (internal citations omitted).

         Smith also offered the testimony of Dr. Daniel Marson, a clinical neuropsychologist employed at the University of Alabama at Birmingham. In addition to giving IQ tests, Dr. Marson conducts “specific tests of discreet cognitive abilities.” (Id. at 5). The Circuit Court assessed his testimony as follows:

Dr. Marson believes that Smith came “into this world with a learning disability, both for verbal and visual information. What he does learn, he is able to, however, carry over and hold on to.” Dr. Marson was hired more to do a neuropsychological evaluation rather than an intellectual functioning test. In the “attention” domain of this test the Defendant was “very mildly impaired” in the area of “special span” which means that he would have difficulty scanning his environment and may not notice new stimuli in his surroundings. The Defendant's exhibits #11 and #12 conflicted with regard to the percentile under WMS III working memory as to whether the Defendant was in the mildly impaired range or in the low average range. As it relates the “expressive language” domain, the Defendant's three test scores range from low average to high average; therefore, there was no deficit in that area. Although there was no deficiency as it relates to the Defendant's racial group, there was one deficiency as it relates to the overall population. In the “memory” domain, the Defendant tested as moderately impaired in two categories which referred primarily to the Defendant's ability or lack thereof in short term retention of verbal or visual information. The Defendant also tested as moderately or severely impaired on four visual tests relating to his ability to reproduce a complex drawing after short or long period of time. Dr. Marson appeared to summarize Smith's ability to remember items as having difficulties in immediately retaining information, but once he learned information he was generally good at retaining the information for long periods of time. In the remaining sixteen “memory” tests, it appears the Defendant was mildly impaired in one category and was in the low average or high average range for the remaining tests. Dr. Marson also conducted five tests in the category he listed as “executive function.” In general, these tests relate to an individual's ability to plan, time matters, and organize life situations so as to properly function in society. As described to this Court, this general category appears to be of greater importance as it relates to the adaptive functioning aspect of Atkins. The Defendant was listed by Dr. Marson as moderately impaired in a category involving raw processing speed, mildly impaired or borderline range on a second test[], low average on a third test, and low average as it relates to the general population, but average as it relates to Smith's racial group on the final test.
In general, this Court would summarize Dr. Marson's testimony as indicating that the Defendant's deficits would cause him some difficulty in following instructions and retaining information so as to cause some short comings as it relates to school or work activities. Yet, Dr. Marson did not indicate that the Defendant's short comings would cause him to be unable to succeed in school, work, o[r] society in general, but it might require additional effort or instruction for Smith to perform on par with his peers. Dr. Marson did not express an opinion as to whether the Defendant was mildly mentally retarded.

(Id. at 5-6) (internal citations omitted).

         Having reviewed Smith's evidence regarding his adaptive functioning, the Circuit Court then assessed the State's evidence with regard to the issue. (Id. at 6). Dr. King performed a WRAT-4 test which “gives an indication of an individual's ability to read, write, and do arithmetic.” (Id.). The average score for this test is 100. (Id.). Smith scored an 85 on reading, 93 on spelling, and an 84 on math computation. (Id.). These test scores equate to grade levels as follows: reading equated to an 8.6 grade level, spelling to an 11.5 grade level, and math to a 6.3 grade level. (Id.). Dr. King performed other tests on Smith as well. On one test, the Minnesota Multiphasic Personality Inventory (MMPI-2) test, the test profile was invalid because it demonstrated that Smith either “purposefully attempted to look like he was having a mental illness on this particular instrument or he randomly sorted items.” (Id.). Dr. King also testified that he interviewed Smith, and Smith did not have any difficulties in communication or understanding questions or administration of the tests. (Id.).

         Dr. King also testified, over Smith's objection, that in his opinion Smith “is not mentally retarded and he likely functions somewhere in the high borderline to low average range of intellectual ability.” (Id. at p. 7). The court recognized that one test that Dr. King performed, the Adaptive Behavior Assessment System, Second Edition (ABAS-2), resulted in a finding that Smith “has some difficulties with community use, health and safety, self-direction, social skills, and leisure skill areas.” (Id.). The Rule 32 court did not credit this finding, however, because it “may not be fully applicable because it sometimes refers to activities that would be limited to someone not in prison.”[15] (Id.). The court also found it instructive that:

[a]ll tests require the respondent to have “constant contact with the particular target person on practically a daily basis”, but that is not possible for the other instruments since the Defendant has been away from others while in prison for so many years. According to Dr. King, tests such as that run by Dr. Salekin cannot be used because “there aren't any norms for that” and because under the circumstances it would be a violation of the test's protocol.

(Id.) (internal citations omitted).

         In addition to the testimony from the Rule 32 evidentiary hearing, the court found certain portions of the trial transcript relevant. (Id.). As the court noted:

[i]n particular, the Petitioner's father did not help take care of him and his mother frequently worked; therefore, after age 8 or 9 Willie Smith and siblings “practically raised themselves.” According to the Defendant's mother, it appears that Smith took care of the other children while she was gone. The Defendant dropped out of school in the 10th grade so that he could work and help provide for his family. According to Mrs. Smith, the Defendant provided well for her. He kept a job at Birmingham Stove and Range for 2 years then got another job at Coca-Cola Company, but he was “relieved” from his job at Coca-Cola when he “got on dope” and missed some work. As noted in Ferguson v. State, supra, the Defendant's ability to work and support his family, even at a young age, weighs against the Petitioner in his argument that he is mentally retarded. Furthermore, Dr. Blotcky testified that he found “no diminished capacity” when he met with the Defendant.”

(Id.) (internal citations omitted). The court also determined that other evidence from Smith's trial relevant to the adaptive function inquiry as well. (Id.). Specifically, the Rule 32 court found one of Smith's pre-trial conversations illuminating:

Mr. Smith stated as follows in a pre-trial conversation that he did not know was being recorded:
“I thought somebody saw me back there, I waited for a day. I said if nobody find that car today that mean ain't too much looking for her. So what I do, I'll go round there and burn that bitch up, get my fingerprints off it. So that's what I did. I burned that bitch slap off, I burned that bitch so bad….
In the same statement the Defendant also acknowledged his understanding that he may be caught if he failed to kill the victim, in part because she was a police officer's sister, when he stated as follows: “She didn't know [he would kill her], she just said here you can take the car. I was acting like this here. I was thinking don't shoot, don't do it. Her brother a police. No if I let you go you going to fuck me up…. She said, No I'm not. I promise. (mimicking a female voice). I said you a liar, boom, [t]hen shot her in the head with that gun.” In this Court's opinion, the Defendant's intentional killing of the victim, based in part upon his realization that the victim's relationship to a police officer would make his capture more likely, and his apparently well thought-out attempt to cover up the crime, weighs against the Petitioner in relation to the adaptive functioning requirement. This conclusion is supported by the opinion in Ferguson v. State, supra, indicating that extensive involvement in crime and post-crime planning are factors to consider.

(Id. at 8) (internal citations omitted).

         Taking all of the testimony into account, the Rule 32 court summarized the evidence that it found relevant and drew its conclusions. It noted that Dr. Salekin's SIB-R test, when conducted by way of interview with Smith's brother, placed him at an overall skill level of 12 years and 8 months, but when conducted by way of interview with Smith's mother, placed him at a skill level of 15 years and 3 months. (Id.). Dr. Salekin testified that large difference between the two tests was significant, and the court found that such a difference “detracts from the significance placed on the test results.” (Id.). The Rule 32 court further noted the high likelihood of inaccuracy in Smith's SIB-R test which was based on answers from his younger brother. (Id.). At best (for Smith), his “younger brother was in his middle teens when the events that he was questioned about occurred, and he was trying to remember Smith's skill level approximately 30 years later.” (Id.). The court reasoned that this, too, diminished the credibility of the SIB-R score that Dr. Salekin presented. (Id.).

         The Rule 32 court also noted that, while the Woodcock-Johnson Achievement Test that Dr. Salekin administered included below average scores, it also demonstrated that Smith did not have significantly substandard scores in the categories of speech, communication, listening comprehension, reading, math, and written skills. (Id. at p. 9). Further, Dr. Salekin testified that adaptive functioning tests would be affected by an individual's use of drugs or alcohol. (Id.). Because the record indicated that Smith used alcohol and drugs on a regular basis, the court reasoned that some deficits in his adaptive functioning, even at age 17, could be attributed to his drug use. (Id.). The court concluded that:

[a]lthough evidence is clear that Defendant has below average intelligence which has, in some ways, probably affected his life style, the Petitioner has failed to meet the burden of proving that he is mentally retarded so as to preclude imposition of the death penalty.

(Id.). The Rule 32 court further reasoned that, while it was not bound to follow an expert's opinion as to whether or not an individual meets the Atkins standard, “the lack of any testimony that Willie Smith is mildly mentally retarded is a strong contributing factor in the Court's decision as it relates to this issue.” (Id.).

         The Rule 32 court concluded its analysis as follows:

Based on the testimony presented at the Rule 32 hearing, relevant portions of the trial transcript, and other matters outlined herein, this Court finds that the Petitioner has failed to establish that he is mentally retarded so as to preclude him from receiving a death sentence in this case. Two experts stated that in their opinion Willie Smith was not mentally retarded, and the other experts who testified did not refute those opinions. The record indicates that Willie Smith properly functioned in society prior to his arrest for the offense in question. Although testimony was presented regarding possible deficiencies in the Defendant's adaptive functioning based upon test results, there was no testimony regarding deficiencies in the Defendant's actual ability in areas such as “communication, self care, home living, social interpersonal skills, use of community resources, self direction, functional academic skills, work, leisure, health, and safety.” Ferguson v. State, 2008 WL 902901, *14 (Ala.Crim.App.2008). In numerous test[] categories the Defendant tested in the average range or above average, and those test scores were inconsistent with a finding that the Defendant was mentally retarded.

(Id.).

         2. The Court of Criminal Appeals' Decision

         Smith appealed the Circuit Court's denial of his Rule 32 motion. On May 25, 2012, the Court of Criminal Appeals of Alabama affirmed the circuit court's ruling. Smith III, 112 So.3d 1108. The Court of Criminal Appeals, after examining each argument Smith raised on appeal, held that the Rule 32 court did not err in finding that Smith is not mentally retarded under the standards set forth in Atkins. Id. at 1134. The appellate court noted both Smith's standard of proof (i.e., in order to prove that he was entitled to relief, he was required to demonstrate his intellectual disability by a preponderance of the evidence) as well as its own standard of review (i.e., the Court of Criminal Appeals reviewed the Circuit Court's findings for abuse of discretion). Id. at 1125.

         After outlining Smith's arguments and the Alabama law related to Atkins, the Court of Criminal Appeals determined that “[a]s the circuit court found and as the evidence at the hearing established, Smith did not prove by a preponderance of the evidence that he was mentally retarded.” Id. at 1130. “The greater weight of the evidence indicated that, although he suffered with some mental deficiencies, they did not rise to the level at which an impartial mind would conclude from the evidence that he was mentally retarded.” Id. The court found that the Circuit Court did not err in its determination not to apply the Flynn Effect to lower Smith's IQ scores. Id. at 1131. The court then held that the Circuit Court did not err when it refrained from adopting a margin of error when examining Smith's IQ score. Id. at 1131. The appellate court reasoned that Alabama courts have specifically “refrained from adopting a margin of error as it would apply to IQ scores, because doing so would expand the definition of mentally retarded established by the Alabama Supreme Court in Ex parte Perkins.” Id. (citing Ex parte Perkins, 851 So.2d 453 (Ala. 2002)). The court also affirmed the Circuit Court's determination that Smith had not sufficiently demonstrated a lack of adaptive behavior as required by Atkins. Id. at 1132. The appellate court noted that, even where there are shortfalls in adaptive behavior, those “shortcomings are not evaluated in a vacuum” and “other relevant evidence may weigh against an overall finding of deficiency in this area. Id. at 1133. Finally, the court found that the Circuit Court did not err in relying upon the clinical opinions of Dr. Salekin and Dr. King that he was not mentally retarded.[16] Id. The court reasoned that “testimony from a clinical psychologist is admissible in evaluating mental retardation in capital cases.” Id. at 1334.

         3. Analysis of Smith's Atkins Claim

         As the Supreme Court has noted, “[t]o the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded.” Atkins, 536 U.S. at 317. This is the issue Smith asked the state courts to decide. He now asks this court to review the state courts' unfavorable determination. In Atkins, the Court expressly left “to the States the task of developing appropriate ways to enforce the constitutional restriction upon their execution of sentences.” Id. (quotation marks omitted and alterations adopted).

         Alabama courts first applied Atkins in Ex parte Perkins. There, the Alabama Supreme referenced Atkins's guidance and stated:

[T]his court can determine, based on the facts presented at Perkins's trial, that Perkins, even under the broadest definition of mental retardation, is not mentally retarded. Those states with statutes prohibiting the execution of a mentally retarded defendant require that a defendant, to be considered mentally retarded, must have significantly subaverage intellectual functioning (an IQ of 70 or below), and significant or substantial deficits in adaptive behavior. Additionally, these problems must have manifested themselves during the developmental period (i.e., before the defendant reached age 18).

Ex parte Perkins, 851 So.2d at 456. In the absence of further guidance from the Alabama Legislature, Alabama appellate courts have adopted Perkins's reasoning:

[t]he Alabama Legislature has not yet established a method for determining whether a capital defendant is mentally retarded and, thus, ineligible for a sentence of death. “However, the Alabama Supreme Court, in Ex parte Perkins, 851 So.2d 453 (Ala.2002), adopted the most liberal definition of mental retardation as defined by those states that have legislation barring the execution of a mentally retarded individual.” Smith v. State, [Ms. CR-97-1258, Jan. 16, 2009] __ So.3d __, __ (Ala.Crim.App.2009) (opinion on return to fourth remand); see also Smith v. State, [Ms. 1060427, May 25, 2007] __ So.3d __, __ (Ala.2007) (“Until the legislature defines mental retardation for purposes of applying Atkins, this Court is obligated to continue to operate under the criteria set forth in Ex parte Perkins.”). Pursuant to Ex parte Perkins, “to be considered mentally retarded, [a capital defendant] must have significantly subaverage intellectual functioning (an IQ of 70 or below), and significant or substantial deficits in adaptive behavior.” Ex parte Perkins, 851 So.2d at 456; see also Atkins, 536 U.S. at 321 n. 5. Further, “these [two deficits] must have manifested themselves during the developmental period (i.e., before the defendant reached age 18).” Ex parte Perkins, 851 So.2d at 456…. “Therefore, in order for an offender to be considered mentally retarded in the Atkins context, the offender must currently exhibit subaverage intellectual functioning, currently exhibit deficits in adaptive behavior, and these problems must have manifested themselves before the age of 18.” [….]
“In the context of an Atkins claim, the defendant has the burden of proving by a preponderance of the evidence that he or she is mentally retarded.” Smith v. State, [Ms. 1060427, May 25, 2007] __ So.3d at __ see Smith v. State, [Ms. CR- 97-1258, Jan. 16, 2009] __ So.3d at __. “‘The question of [whether a capital defendant is mentally retarded] is a factual one, and as such, it is the function of the factfinder, not this Court, to determine the weight that should be accorded to expert testimony of that issue.'” Smith v. State, [Ms. CR-97-1258, Jan. 16, 2009] __ So.3d at __ (quoting Atkins v. Commonwealth, 266 Va. 73, 581 S.E.2d 514, 515 (2003)). As the Alabama Supreme Court has explained, questions regarding weight and credibility determinations are better left to the circuit courts, “which [have] the opportunity to personally observe the witnesses and assess their credibility.” Smith v. State, [Ms. 1060427, May 25, 2007] __ So.3d at __ (quoting Smith v. State, [Ms. CR-97-1258, Sept. 29, 2006] __ So.3d __, __ (Ala.Crim.App.2006) (Shaw, J., dissenting) (opinion on return to third remand)).

Byrd v. State, 78 So.3d 445, 450-51 (Ala.Crim.App.2009).

         Accordingly, Smith was required to establish each of three prongs: (1) he currently exhibits subaverage intellectual functioning (demonstrated by an IQ of 70 or below), (2) he currently exhibits deficits in adaptive behavior, and (3) these problems manifested themselves before the age of 18. Importantly, in presenting his claims to the Rule 32 court, Smith bore the burden of proving that he is intellectually disabled by a preponderance of evidence. As mentioned above, federal courts reviewing habeas petitions pursuant to 28 U.S.C. § 2254 may grant relief only when the state court's adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was 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). Importantly, “a state court's factual determination is entitled to a presumption of correctness.” Debruce v. Comm'r, Alabama Dep't of Corr., 758 F.3d 1263, 1266 (11th Cir. 2014) (citing 28 U.S.C. § 2254(e)(1)). After careful review, the court concludes that the state courts' determination that Smith failed to satisfy the burden of proving that he is intellectually disabled was not unreasonable. Nor did the state court act unreasonably in its analysis of the three Perkins prongs, or unreasonably apply Alabama law in coming to its conclusion.

         a. The Significantly Subaverage Intellectual Functioning Prong

         Smith argues that he exhibits significant subaverage intellectual functioning because (1) his IQ (as reflected by Dr. Salekin's test) is 64, (2) his IQ score based on Dr. King's testing would be below 70 if the state courts had accounted for the Flynn Effect and a five point “band” reflecting the margin of error in the test, and (3) neuropsychological testing demonstrates that he shows a deficit in executive function. The court addresses each of these arguments, in turn.

         i. Dr. ...


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