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Miller v. Dunn

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

March 29, 2017

ALAN EUGENE MILLER, Petitioner,
v.
JEFFERSON S. DUNN, Commissioner of the Alabama Department of Corrections, Respondent.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE, CHIEF UNITED STATES DISTRICT JUDGE

         This case is again before the court upon the petitioner Alan Eugene Miller's “Petition for Writ of Habeas Corpus By Prisoner In State Custody Under Sentence of Death, ” pursuant to 28 U.S.C. § 2254.[1] (Doc. 1). Miller alleges that he was denied effective assistance of counsel both at trial and on appeal, and that his death sentence violates the United States Constitution.

         Table of Contents

         I. The Offense Conduct. . ......................................... 9

         II. Trial: Guilt and Penalty Phases.. ................................. 12

         III. Sentencing Hearing. . .......................................... 16

         IV. Procedural History.. ........................................... 17

         A. Motion for a New Trial.. .................................. 18

         B. Direct Appeal. . ......................................... 19

         C. Rule 32 Proceedings in Shelby County Circuit Court ............ 21

         V. Legal Standard.. .............................................. 25

         A. Exhaustion of State Court Remedies: The First Condition Precedent to Federal Habeas Review. . ................................. 25

         B. The Procedural Default Doctrine: The Second Condition Precedent to Federal Habeas Review. . ................................. 26

         C. Overcoming Procedural Default: The Cause and Prejudice Analysis. . . . . .27

         D. The Statutory Overlay: The Effect of “the Antiterrorism and Effective Death Penalty Act of 1996” on Habeas Review ................ 28

         1. Title 28 U.S.C. § 2254(e)(1).. ......................... 29

         2. 28 U.S.C. § 2254(d) ................................. 29

         E. An Introduction to Ineffective Assistance of Counsel Claims.. . . . . 32

         1. The performance prong. . ............................ 33

         2. The prejudice prong ................................. 34

         3. Deference accorded state court findings of historical fact, and decisions on the merits, when evaluating ineffective assistance of counsel claims.. .................................... 35

         VI. Miller's Claims ............................................... 36

         A. Miller's Ineffective Assistance of Trial Counsel Claims.. ........ 41

         1. Claims Raised and Exhausted On Direct Appeal.. ......... 41

         a) Claim A(ii): Miller's Claim That Trial Counsel Was Ineffective For Sabotaging the Work of the Defense Psychiatric Expert and For Withdrawing the Plea of Not Guilty by Reason of Mental Disease or Defect ....... 43

         b) Claim A(v): Miller's Claim That Trial Counsel Was Ineffective In His Guilt phase Opening Statement. . . . 46

         c) Claim A(vi): Miller's Claim That Trial Counsel Was Ineffective During The Presentation of The State's Guilt phase Evidence ............................... 51

         d) Claim A(vii): Miller's Claim That Trial Counsel was Ineffective for Failing to Present Mental Health Evidence During the Guilt Phase . . .. ..................... 53

         e) Claim A(xii): Miller's Claim That Trial Counsel Denied Miller Effective Assistance in His Penalty phase Opening Statement. . .................................. 56

         2. Claims Raised For the First Time On Collateral Appeal.. . . . 64

         3. Claims Raised For the First Time Before This Court. . ..... 67 B. Miller's Ineffective Assistance of Appellate Counsel Claims.. . . . . 68

         1. Claim B(i): Miller's Claim That Miller's Claim That Appellate Counsel was Ineffective for Raising the Issue of Ineffective Assistance of Trial Counsel In the Motion for New Trial.. . . 71

         a) No Procedural Default .......................... 72

         b) Merits ....................................... 72

         2. Claim B(ii & iii): Miller's Claim That Appellate Counsel Was Ineffective for Failing to Conduct an Adequate Investigation Concerning the Ineffective Assistance Miller Received from Trial Counsel AND Failing to Present Sufficient Evidence During the Hearing on the Motion for New Trial to Establish That Miller Suffered Prejudice as a Result of Trial Counsel's Performance. . . . ............................................... 74

         a) No Procedural Default .......................... 75

         b) Merits ....................................... 75

         3. Claim B(iv): Miller's Claim That Appellate Counsel was Ineffective for Failing to Adequately Present the Claims of Ineffective Assistance of Trial Counsel That Were Raised in Miller's Motion for New Trial ...... ................... 79

         a) Miller's claim that trial counsel's opening statement during the guilt phase was ineffective.. .................. 80

         (1) No Procedural Default. . . .................. 81

         (2) Merits .................................. 81

         b) Miller's claim that trial counsel was ineffective for withdrawing the insanity defense. . ............... 83

         (1) No Procedural Default. . . .................. 84

         (2) Merits .................................. 84

         c) Miller's claim that trial counsel was ineffective for failing to present mental health evidence during the guilt phase of trial ......................................... 93

         (1) No Procedural Default. . . .................. 94

         (2) Merits .................................. 94

         d) Miller's claim that trial counsel's penalty phase opening statement was ineffective.. ...................... 98

         (1) No Procedural Default. . . .................. 98

         (2) Merits .................................. 99

         e) Miller's claim that trial counsel failed to adequately investigate and present mitigation evidence during the penalty phase. . .............................. 101

         (1) No Procedural Default. . . ................. 102

         (2) Merits ................................. 102

         (a) The abuse Miller suffered at the hands of his father. . .......................... 104

         (b) Miller's impoverished childhood and exposure to the criminal behavior of his family members .................... 105

         (c) The Miller family history of mental illness. . ................................. 106

         (d) Miller's good employment history and relationship with his family.. ......... 108

         (e) Miller's behavior prior to the shootings. . . . ................................. 109

         (f) Miller's behavior on the day of the shootings. ................................. 109

         (3) Prejudice analysis. . ..................... 109

         4. Claim B(v): Miller's Claim That Appellate Counsel was Ineffective for Failing to Raise Other Claims of Ineffective Assistance of Trial Counsel . . ........................ 118

         a) Trial Counsel's performance during jury voir dire. . . 119

         (1) No Procedural Default. . . ................. 120

         (2) Merits ................................. 120

         b) Failure to object to the admission of testimony and photographs during the guilt phase of trial .. ....... 127

         (1) Procedural Default.. ..................... 128

         (2) Merits ................................. 129

         c) Ineffective cross-examination of crucial prosecution witnesses.. .................................. 131

         (1) Procedural Default.. ..................... 132

         (2) Merits ................................. 133

         d) Failure to object to portions of the state's guilt phase closing argument. . ........................... 134

         (1) Procedural Default.. ..................... 135

         (2) Merits ................................. 135

         e) Ineffective guilt phase closing argument.. ......... 136

         (1) No Procedural Default. . . ................. 136

         (2) Merits ................................. 136

         f) Failure to request jury instructions to protect Miller's rights . . ......................................... 140

         (1) Procedural Default.. ..................... 141

         (2) Merits ................................. 141

         g) Relying on Dr. Scott as the sole mitigation witness during the penalty phase of trial. . ..................... 144

         (1) No Procedural Default. . . ................. 145

         (2) Merits ................................. 145

         h) Failure to move for a directed verdict during the penalty phase.. ..................................... 146

         (1) Procedural Default.. ..................... 147

         (2) Merits ................................. 148

         i) Inadequate penalty phase closing argument. . ...... 151

         (1) Procedural Default.. ..................... 152

         (2) Merits ................................. 153

         j) Failure to object to the court's penalty phase jury instructions. . ................................ 159

         (1) Procedural Default.. ..................... 160

         (2) Merits ................................. 160

         k) Failure to request a special verdict form ........... 164

         (1) Procedural Default.. ..................... 165

         (2) Merits ................................. 165

         l) Inadequate representation at the sentencing hearing.. 168

         (1) No Procedural Default. . . ................. 169

         (2) Merits ................................. 169

         m) Failure to bring the Supreme Court's decision in Apprendi v. New Jersey to the trial court's attention .......... 173

         (1) Procedural Default.. ..................... 174

         (2) Merits ................................. 175

         5. Claim B(vi): Miller's Claim That Appellate Counsel was Ineffective in the Appeal to the Alabama Court of Criminal Appeals .......................................... 176

         a) Procedural Default ............................ 177

         b) Merits ...................................... 177

         C. Validity of the Death Sentence.. ........................... 178

         VII. Conclusion ................................................. 188

         I. THE OFFENSE CONDUCT

         The Alabama Court of Criminal Appeals provided the following summary of the evidence of the offense when it considered Miller's direct appeal. The state has adopted this summary for the purpose of answering Miller's petition. (Doc. 15, at 2).

The evidence presented at trial tended to establish the following. Around 7:00 a.m. on August 5, 1999, Johnny Cobb arrived at his place of employment, Ferguson Enterprises in Pelham. Cobb, the vice president of operations, recognized several other vehicles in the company's parking lot as belonging to sales manager Scott Yancy and delivery truck drivers Lee Holdbrooks and Alan Miller. As Cobb prepared to enter the building, he heard some loud noises and what sounded like someone screaming. Cobb opened the front door and saw Miller walking toward him. Miller, who was armed with a pistol, pointed the pistol in the general direction of Cobb and stated, “I'm tired of people starting rumors on me.” Cobb tried to get Miller to put the pistol down, but Miller told him to get out of his way. Cobb ran out the front door and around the side of the building. Miller then left the building, walked over to his personal truck, and drove away.
After Cobb heard Miller drive away, he went back inside the building. He saw Christopher Yancy on the floor in the sales office and Lee Holdbrooks on the floor in the hallway. Both men were covered in blood and showed no signs of life. They appeared to have been shot multiple times. Cobb used his cellular telephone to summon the police, who were dispatched at 7:04 a.m. Minutes later, officers from the Pelham Police Department arrived to investigate the shooting.
After Cobb told the police officers what he had seen, the officers entered the building. There, they found the body of Christopher Yancy slumped to the floor, underneath a desk in the sales office. Lee Holdbrooks was lying face down in the hallway at the end of a bloody “crawl trail, ” indicating that he had crawled 20-25 feet down the hall in an attempt to escape his assailant. The officers secured the scene and waited for evidence technicians to arrive. Cobb provided a description of Miller's clothing and the truck he was driving. This description was transmitted to police headquarters and sent out over the police radio by the police dispatcher. Evidence technicians recovered nine .40-caliber shell casings from the scene.
While officers began investigating the crime scene at Ferguson Enterprises, Andy Adderhold was arriving for work at Post Airgas in Pelham. Adderhold, the manager of the Pelham store, arrived shortly after 7:00 a.m. Adderhold entered the office and talked with Terry Jarvis, another employee, for a few minutes before continuing to another office. At this point, Adderhold noticed Miller-a former employee of Post Airgas-enter the building. Miller walked toward the sales counter and called out to Jarvis: “Hey, I hear you've been spreading rumors about me.” As Jarvis walked out of his office and walked into the area behind the sales counter, he replied, “I have not.” Miller fired several shots at Jarvis. As Jarvis fell to the floor, Adderhold crouched behind the counter. Miller then walked behind the counter and pointed the pistol at Adderhold's face. Adderhold begged for his life. Miller paused, then pointed to a door, and told him to get out. Adderhold stood up and, as he began to move toward the door, heard a sound from Jarvis. When Adderhold paused and looked back at Jarvis, Miller repeated his order to “get out-right now.” At this Adderhold left the sales area. As Adderhold was leaving the building, he heard another gunshot. Adderhold proceeded out of the back of the building, climbed over a fence to a neighboring building, where he used someone's cellular telephone to summon the police.
The second emergency call came in to the Pelham Police Department at approximately 7:18 a.m. Upon arrival, officers entered the building housing Post Airgas and found Jarvis's body on the floor behind the sales counter. Jarvis had sustained several gunshot wounds to his chest and abdomen. After securing the scene, officers recovered six .40-caliber spent shell casings from the floor of the sales area. Adderhold was interviewed, and he recounted the events surrounding Jarvis's murder.
After a description of Miller and the vehicle he was driving was transmitted over the police radio, law-enforcement officers combed the area in search of Miller. Pelham police sergeant Stuart Davidson and his partner were patrolling Interstate 65 near Alabaster when word of the second shooting was broadcast. Upon hearing that Miller was still in the vicinity of Pelham, Davidson exited I-65 to head back to Pelham. As Davidson turned back toward Pelham, he spotted a truck matching the description of Miller's entering I-65 from Highway 31 in Alabaster. Davidson radioed for backup and followed the truck south on I-65 into Chilton County. Once additional officers were in place as backup, law-enforcement officers initiated a traffic stop of the truck. Following the traffic stop, officers were able to positively identify the driver as Miller. Miller was ordered to get out of the truck, and he was forcibly subdued and handcuffed after resisting efforts to place him in custody. After placing Miller in the back of a patrol car, officers secured his truck. Inside the truck, they found a Glock brand pistol lying on the driver's seat. The pistol contained 1 round in the chamber and 11 rounds in the magazine. An empty Glock ammunition magazine was found on the passenger seat. Miller was transported to the Pelham Police Department where he was charged with murder.
At trial, the State called various witnesses who testified concerning the events of August 5, 1999. Evidence was also introduced regarding ballistics testing of the spent shell casings found at both murder sites; the testing matched all of the shell casings to the .40-caliber Glock pistol found on Miller. Dr. Stephen Pustilnik, a state medical examiner with the Alabama Department of Forensic Sciences, testified that the cause of death for all three victims was multiple gunshot wounds. Lee Holdbrooks - whose body was found in the hallway - was shot six times in the head and chest; although several of the wounds were nonfatal, one of the head wounds was fired at very close range and would have been immediately incapacitating and fatal. Based on “blood splatter” analysis and the positioning of the body, Dr. Pustilnik concluded that Holdbrooks was turning his head and looking up when the fatal shot was fired.
Scott Yancy was shot three times; one of the shots struck the aorta, which would have caused Yancy to “bleed out” within 15-20 minutes, while another wound would have caused paralysis. At the time he was shot, Yancy was underneath a metal desk; there was no indication that he ever moved from this position.
Terry Jarvis was shot five times; one of the shots struck Jarvis's liver and another his heart. Jarvis had already fallen to the floor when he was shot in the heart. Based on “blood splatter” analysis, Dr. Pustilnik concluded that Miller was standing over Jarvis as he shot him in the heart. Despite the nature of this wound, Jarvis could have lived anywhere from several minutes to 15 minutes after being shot.

Miller v. State, 913 So.2d 1148, 1154-56 (Ala.Crim.App.2004).

         II. TRIAL: GUILT AND PENALTY PHASES

         In August, 1999, a Shelby County Grand Jury indicted Miller on one count of capital murder under § 13A-5-40(a)(10) of the Code of Alabama, for murdering two or more persons by one act or pursuant to one scheme or course of conduct. (C.R. Vol. 1, Tab 1, at 18).[2] The Circuit Court of Shelby County appointed Mickey L. Johnson and Rodger D. Bass to represent Miller. (C.R. Vol. 1, Tab 1, at 1).

         On August 17, 1999, Miller entered pleas of not guilty and not guilty by reason of mental disease or defect. (C.R. Vol. 1, Tab 1, at 1). Accordingly, the court ordered Miller to undergo a mental evaluation. (C.R. Vol. 1, Tab 1, at 19). Miller was evaluated by Dr. James Hooper at the Taylor Hardin Secure Medical Facility on October 4, 1999, for the purpose of assessing his competence to stand trial and his mental state at the time of the murders. Miller v. State, 99 So.3d at 379. Dr. Hooper reportedly spent approximately thirty minutes with Miller in conducting his evaluation (Rule 32 C.R. Vol. 33, Tab 59, at 681), ultimately concluding that Miller was competent to stand trial and that he did not meet the legal standard for insanity. (See Doc. 47-33 at 47-52). The state subsequently hired Dr. Harry McClaren, a forensic psychologist, to evaluate Miller's competency to stand trial and his mental state at the time of the shooting. Miller, 99 So.3d at 379. In late 1999, Dr. McClaren conducted a three-day evaluation of Miller, concluding that he was competent to stand trial and that he was sane at the time of the crime. (See Doc. 47-25 at 29-33; Rule 32 C.R. Vol. 33, Tab 59, at 774-82).

         On March 16, 2000, Miller's trial counsel applied for funds to hire an expert psychiatrist and an expert psychologist to assist in Miller's defense. (C.R. Vol. 1, Tab 1, at 50-55). On April 4, 2000, the trial court granted Miller's request. (Id. at 57). Trial counsel hired Dr. Charles Scott, a forensic psychiatrist from the University of California Davis, to evaluate Miller's sanity at the time of the shooting. (Doc. 47-31 at 1; R. Vol. 8, Tab 22, at 1343). Dr. Scott began his three-day psychiatric evaluation of Miller in late April of 2000, approximately eight-and-a-half months after the August 5, 1999 shooting. (See Doc. 47-31, at 1-23; R. Vol. 8, Tab 22, at 1347). In conducting his evaluation, Dr. Scott consulted with Dr. Barbara McDermott, a psychologist, who conducted psychological testing on Miller and prepared a report dated May 11, 2000. (Doc. 47-31, at 1-2; R. Vol. 8, Tab 22, at 1346; Rule 32 C.R. Vol. 31, Tab 59, at 316-18). Dr. Scott asked Dr. McDermott to conduct psychological tests focusing on assessing Miller's IQ and to assist Dr. Scott in determining whether Miller was malingering when recollecting what happened on the day of the shooting. (Doc. 47-28, at 15; R. Vol. 8, Tab 22, at 1357-58; Rule 32 C.R. Vol. 31, Tab 59, at 317)[3]. Based on the information provided to Dr. Scott and his independent evaluation of Miller, Dr. Scott determined that Miller was not insane at the time of the shooting. (Doc. 47-31, at 23; R. Vol. 8, Tab 22, at 1383-88; Rule 32 C.R. Vol. 31, Tab 59, at 380).

         After receiving the report of Dr. Scott's evaluation, Miller withdrew his insanity plea and entered a simple plea of not guilty on May 24, 2000, less than a month before the scheduled trial. (C.R. Vol. 1, Tab 6, at 66-67). On June 1, 2000, less than two weeks before trial, the court granted Mr. Bass's oral motion to withdraw as defense counsel, and appointed Ronnie Blackwood as co-counsel to Mr. Johnson.[4](C.R. Vol. 1, Tab 1, at 4).

         Miller's trial began as scheduled on June 12, 2000. (C.R. Vol. 1, Tab 7, at 69). Five days later, on June 17, 2000, the jury returned its verdict finding Miller guilty of capital murder as charged in the indictment. (C.R. Vol. 1, Tab 1, at 4, 73). Immediately after the jury returned its guilty verdict, the trial transitioned to the penalty phase. The only aggravating circumstance argued by the state was that the capital offense was “especially heinous, atrocious, or cruel compared to other capital offenses.” Ala. Code. § 13A-5-49(8). The state relied largely on the evidence presented during the guilt phase and only introduced victim impact testimony from one survivor of each victim. (R. Vol. 8, Tab 21, at 1335-41).

         Trial counsel's penalty phase defense was limited to a single witness, Dr. Scott. (R. Vol. 8, Tab 21, at 1341-1403). Dr. Scott's testimony, although addressing Miller's background, focused on establishing the existence of two mitigating factors. First, Dr. Scott testified that despite his conclusion that Miller was sane at the time of the shootings, he believed Miller's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. (R. Vol. 8, Tab 22, at 1383-91). Second, Dr. Scott testified that Miller committed the offense while “under the influence of an extreme mental or emotional disturbance.” (R. Vol. 8, Tab 22, at 1391). The state stipulated to the existence of a third mitigating circumstance - that Miller had no significant prior criminal history. (R. Vol. 8, Tab 19, at 1317).

         At the end of penalty phase, the jury rendered a 10-2 verdict, with ten jurors voting for the death penalty and two voting for life imprisonment without the possibility of parole. (C.R. Vol. 1, Tab 1, at 73-74). The verdict form only allowed the jurors to indicate the number of votes for the death sentence and the number of votes for a life sentence. (C.R. Vol. 1, Tab 1, at 74-75). The form did not require the jury to indicate the number of jurors who found that the state met its burden of proving an aggravating factor beyond a reasonable doubt, as is now required under Ex Parte McGriff, 908 So.2d 1024, 1039 (Ala. 2004).

         III. SENTENCING HEARING

         At the July 31, 2000 sentencing hearing, the trial court accepted the jury's recommendation and sentenced Miller to death. (R. Vol 8, Tab 28, at 1453-75). On August 24, 2000, the court issued its sentencing order. (C.R. Vol. 43, Tab 71 at 105- 07).[5] The court determined that three mitigating factors applied in Miller's case: (1) Miller had no significant history of prior criminal activity; (2) Miller committed the crime while “under the influence of extreme mental or emotional disturbance”; and (3) Miller's capacity to “appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired.” (Id. at 106-07).

         Although the only aggravating factor the court found applicable was that the offense was especially heinous, atrocious, or cruel, the court ultimately determined that the defendant “should suffer the punishment of death by electrocution as provided for by law.” (Id. at 106-07). The court stated that prior to rendering a decision, it examined the presentence report, Dr. Scott's testimony, and the mental evaluation performed, as well as “a non-statutory mitigating circumstance, Defendant's background and family history . . . includ[ing] but . . . not limited to, that as a child, Defendant moved to a number of locations and had an estranged and difficult relationship with his father.” (Id. at 107).

         IV. PROCEDURAL HISTORY

         On July 31, 2000, the same day Miller was sentenced to death, the trial court appointed William R. Hill to represent Miller on direct appeal. (C.R. Vol. 1, Tab 1, at 90). Later, on August, 2, 2000, the court appointed Haran Lowe as co-counsel for Miller.

         A. Motion for a New Trial

         Appellate counsel immediately filed a motion for the state to provide a transcript of the trial record because appellate counsel did not witness the trial proceedings and could not “adequately represent the Defendant in his Motion for New Trial or on appeal without a transcription of the trial record.” (Id. at 91). On August 3, 2000, Miller moved for a new trial based solely on the ground that the verdict was “contrary to law and the weight of the evidence.” (Id. at 93). On August 25, 2000, Miller filed an amendment to the motion for new trial, outlining twenty-five new grounds for relief. (Id. at 95-97). Although appellate counsel did not yet have the trial transcript, ground 24 of the amended motion for new trial alleged that Miller's “due process rights under the United States and Alabama Constitution were denied because his trial counsel was ineffective.” (Id. at 96).

         The hearing on the motion for a new trial was originally scheduled to take place on September 5, 2000. (Id. at 108). However, because the trial transcript was not yet available, appellate counsel moved on August 30, 2000, to continue the hearing until after the transcript had been prepared. (Id. at 108-09). The court granted the motion, ultimately holding a two-day hearing on the motion for new trial on December 7, 2000, and January 31, 2001. (C.R. Vol. 1, Tab 1, at 7A-7B).

         Miller's trial counsel, Mickey Johnson, was the sole witness on December 7, 2000. (C.R. Vol. 9, Tab 30, at 1-110). On January 31, 2001, Miller elicited testimony from Dr. Bob Wendorf, a clinical psychologist, and Aaron McCall from the Alabama Prison Project. (C.R. Vol. 9, Tab 31, at 111-176). Dr. Wendorf testified regarding the sufficiency of Dr. Scott's testimony during Miller's penalty phase. (Id. at 111-56). Mr. McCall testified to the role and availability of mitigation expert assistance in capital cases. (Id. at 157-74). After the hearing, the court gave the parties the opportunity to brief the issues discussed at the hearing. (Id. at 175-76). On February 13, 2001, Miller filed a brief supporting his motion for new trial, arguing in support of his ineffective assistance of counsel claims. (C.R. Vol. 1, Tab 1, at 114-25). The state filed a reply brief on February 20, 2001. (Id. at 126-31). On February 21, 2001, the court summarily denied the motion for new trial without entering a written order or making specific findings of fact regarding the evidence presented during the hearing. (Id. at 7B).

         B. Direct Appeal

         On May 7, 2001, Miller filed his appellate brief in the Alabama Court of Criminal Appeals. (R. Vol. 16, Tab 32). The state filed its brief on June 26, 2001. (R. Vol. 16, Tab 33). On June 24, 2002, while Miller's direct appeal was pending, the United States Supreme Court issued its decision in Ring v. Arizona, 536 U.S. 584 (2002). In Ring, the Court held that an Arizona statute allowing a trial judge - acting alone - to determine the presence or absence of an aggravating factor required to impose the death penalty, violated a defendant's Sixth Amendment right to a jury trial. Miller and the state each filed supplemental briefs on August 15, 2002, addressing the impact of Ring on Miller's death sentence. (R. Vol. 16, Tabs 34 and 35).

         On January 6, 2004, the Alabama Court of Criminal Appeals remanded the case for the trial court to “make specific written findings of fact as to the claims that Miller raised during the hearing on his motion for a new trial, ” and to “correct its sentencing order and make specific findings of fact regarding the existence of the aggravating circumstance that this offense was especially heinous, atrocious, or cruel when compared to other capital offenses.” Miller v. State, 913 So.2d 1148, 1153 (Ala.Crim.App.2004). The trial court made the required findings and denied the ineffective assistance of trial counsel claims as meritless.[6] (R. Vol. 43, Tab 72, at 1-23).

         On October 29, 2004, on return to remand, the Alabama Court of Criminal Appeals affirmed the trial court's sentencing decision. Miller, 913 So.2d at 1154-71. Miller's application for rehearing (R. Vol. 16, Tab 37) was denied by the Alabama Court of Criminal Appeals on January 7, 2005, and his petition for writ of certiorari (R. Vol. 17, Tab 38) was denied by the Alabama Supreme Court on May 27, 2005. Miller, 913 So.3d 1148. The United States Supreme Court likewise denied certiorari on January 9, 2006. Miller v. Alabama, 546 U.S. 1097 (2006).

         C. Rule 32 Proceedings in Shelby County Circuit Court

         Having exhausted his appeals and obtained a final conviction, Miller obtained new counsel and timely filed a petition under Rule 32 of the Alabama Rules of Criminal Procedure on May 19, 2006. (Rule 32 C.R. Vol. 19, Tab 44, at 1-93). Miller's Rule 32 petition alleged ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and various violations of Miller's constitutional rights. (Id.). The state answered Miller's petition on August 18, 2006, arguing that the ineffective assistance of trial counsel claims were barred from review and all of Miller's claims should be rejected on the merits. (Rule 32 C.R. Vol. 19, Tab 45, at 1-34, Rule 32 C.R. Vol. 20, at 35-59). On April 4, 2007, Miller filed his First Amended Petition, responding to some of the state's criticisms of his original petition. (Rule 32 C.R. Vol. 20, Tab 46, at 1-100). On April 18, 2007, the state answered Miller's amended petition and moved to dismiss his claims. (Rule 32 C.R. Vol. 23, Tab 49, at 1-75). On June 25, 2007, the trial court held a hearing on the state's motion to dismiss and some outstanding discovery disputes. (Rule 32. C.R. Vol. 36, Tab 62, at 1-83, Rule 32 C.R. Vol. 37, at 84-104).

         On July 31, 2007, the court issued a preliminary ruling on Miller's Rule 32 petition, summarily dismissing his ineffective assistance of trial counsel claim, his claim that his death sentence violated Ring v. Arizona, 536 U.S. 584 (2002), and his claim that lethal injection is unconstitutional. (Rule 32 C.R. Vol. 25, Tab 55, at 1327-28). In its order, the trial court also held that Miller's Brady and juror misconduct claims had not been pleaded with specificity, and ordered that they be summarily dismissed unless Miller amended the claims with sufficient specificity, within sixty days. (Id. at 1328). The parties were allowed to conduct discovery prior to an evidentiary hearing on Miller's claim of ineffective assistance of appellate counsel. (Id. at 1328-29).

         The trial court held the evidentiary hearing on February 11-14, 2008, then continued and completed the hearing on August 6, 2008. (Rule 32 C.R. Vols. 29-34, Tab 59, at 1-892; Rule 32 C.R. Vol. 34, Tab 60, at 1-107). Following the hearing, both parties submitted extensive briefing to the court.[7] On May 5, 2009, the trial court issued its final order denying Miller's Amended 32 Petition and summarily dismissing all of Miller's claims with the exception of his claim that he was denied effective assistance of appellate counsel. (Rule 32 C.R. Vols. 28-29, Tab 58, at 1951-2107). As to the ineffective assistance of appellate counsel claim, the court considered the evidence presented at the evidentiary hearing and denied relief on the merits. (Id. at 1973-2107).

         The court adopted the state's proposed order, which was itself almost a verbatim copy of the state's post Rule 32 hearing response brief. (Compare Rule 32 C.R. Vols. 27-28, Tab 57, at 1702-1800 (state's post Rule 32 hearing response brief), and Rule 32 C.R. Vol. 35, at 29-185 (state's proposed order), with Rule 32 C.R. Vols. 28-29, Tab 58, at 1951-2107 (Rule 32 court's Final Judgment)). On May 18, 2009, Miller objected to the court's adoption of the state's proposed final order denying Rule 32 relief. (Rule 32 C.R. Vol. 29, at 2108). On June 4, 2009, the court denied the objection, pointing out that it had authority to adopt a proposed order in whole. (Id. at 2117).

         Miller appealed both the final order denying Rule 32 relief, and the order denying his objection to adopting the proposed order nearly verbatim. (Id. at 2119; Rule 32 R. Vol. 38, Tab 63). The Alabama Court of Criminal Appeals denied his appeal on July 8, 2011. Miller v. State, 99 So.3d 349 (Ala.Crim.App.2011). Miller subsequently filed an application for rehearing on August 17, 2011 (Rule 32 R. Vol. 40, Tab 66), which was denied by the Alabama Court of Criminal Appeals on October 21, 2011. Miller, 99 So.3d 349.

         On November 30, 2011, Miller filed a petition for a writ of certiorari in the Alabama Supreme Court, challenging the appellate court's rejection of his claim regarding the verbatim adoption of the state's proposed order, and his claim that he was denied effective assistance of counsel on direct appeal. (Rule 32 R. Vols. 40-42, Tab 67). After initially granting review on Miller's first claim, the Alabama Supreme Court quashed the writ and denied certiorari on his second claim on June 22, 2012. Miller, 99 So.3d 349; see also Rule 32 R. Vol. 43, Tab 77.

         V. LEGAL STANDARD

         “The habeas statute unambiguously provides that a federal court may issue the writ to a state prisoner ‘only on the ground that he is in custody in violation of the Constitution or law or treaties of the United States.'” Wilson v. Corcoran, 526 U.S. 1, 5 (2010) (quoting 28 U.S.C. § 2254(a)). As such, this court's review of claims seeking habeas relief is limited to questions of federal constitutional and statutory law. Claims that turn solely upon state law principles fall outside the ambit of this court's authority to provide relief under § 2254. See Alston v. Dep't of Corr., 610 F.3d 1318, 1326 (11th Cir. 2010).

         A. Exhaustion of State Court Remedies: The First Condition Precedent to Federal Habeas Review

         A habeas petitioner must present his federal claims to the state court, and exhaust all of the procedures available in the state court system, before seeking relief in federal court. 28 U.S.C. § 2254(b)(1); Medellin v. Dretke, 544 U.S. 660, 666 (2005) (holding that a petitioner “can seek federal habeas relief only on claims that have been exhausted in state court”). This requirement serves the purpose of ensuring that state courts are afforded the first opportunity to address federal questions affecting the validity of state court convictions and, if necessary, correct violations of a state prisoner's federal constitutional rights. Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998).

         In determining whether a claim is properly exhausted, the Supreme Court has stated that “[i]t is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 5-6 (1982) (citations omitted). Instead, “an issue is exhausted if ‘the reasonable reader would understand [the] claim's particular legal basis and specific factual foundation' to be the same as it was presented in state court.” Pope v. Sec'y for Dep't Of Corr., 680 F.3d 1271, 1286-87 (11th Cir. 2012) (quoting Kelley v. Sec'y, Dep't of Corr., 377 F.3d 1317, 1344-45 (11th Cir. 2004)).

         B. The Procedural Default Doctrine: The Second Condition Precedent to Federal Habeas Review

         Under the procedural default doctrine, federal review of a habeas petitioner's claim is barred if the last state court to examine the claim states 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. See Cone v. Bell, 556 U.S. 449, 465 (2009); Coleman v. Thompson, 501 U.S. 722, 731 (1991). The Supreme Court defines an “adequate and independent” state court decision as one that “rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Lee v. Kemna, 534 U.S. 362, 375 (2002) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)).

         To be considered “independent, ” the state court's decision “must rest solidly on state law grounds, and may not be ‘intertwined with an interpretation of federal law.'” Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001) (quoting Card v. Dugger, 911 F.2d 1494, 1516 (11th Cir. 1990)). To be considered “adequate” to support the state court's judgment, the state procedural rule must be both “firmly established and regularly followed.” Lee v. Kemna, 534 U.S. at 375 (quoting James v. Kentucky, 466 U.S. 341, 348 (1984)).

         C. Overcoming procedural default: The Cause and Prejudice Analysis

         “A federal court may still address the merits of a procedurally defaulted claim if the petitioner can show cause for the default and actual prejudice resulting from the alleged constitutional violation.” Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010) (citing Wainwright v. Sykes, 433 U.S. 72, 84-85 (1977)) (emphasis added). The Supreme Court has recognized that constitutionally ineffective assistance of counsel on direct appeal can constitute “cause” to excuse procedural default. McCleskey v. Zant, 499 U.S. 467, 493-94 (1991). However, any attorney error short of constitutionally ineffective assistance of counsel does not constitute cause, and will not excuse a procedural default. Id.

         In addition to proving the existence of “cause” for a procedural default, a habeas petitioner must show that he was actually “prejudiced” by the alleged constitutional violation. To show prejudice, a petitioner must show “not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis added); see also McCoy v. Newsome, 953 F.2d 1252, 1261 (11th Cir. 1992) (per curiam). In the context of a defaulted ineffective assistance of trial counsel claim, a petitioner must show not only “cause, ” but also “that the underlying ineffective assistance of trial counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.” Martinez v. Ryan, 132 S.Ct. 1309, 1318-19 (2012).

         D. The Statutory Overlay: The Effect of “the Antiterrorism and Effective Death Penalty Act of 1996” on Habeas Review

         Miller's case is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). To “prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under the law, ” the AEDPA establishes a deferential standard of review of state habeas judgments. Bell v. Cone, 535 U.S. 685, 693 (2002).

         1. Title 28 U.S.C. § 2254(e)(1)

         Section 2254(e)(1) requires district courts to presume that a state court's factual determinations are correct, unless the habeas petitioner rebuts the presumption of correctness with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); see also, e.g., Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001) (observing that § 2254(e)(1) provides “a highly deferential standard of review for factual determinations made by a state court”). The deference that attends state court findings of fact pursuant to § 2254(e)(1) applies to all habeas claims, regardless of their procedural stance. Thus, a presumption of correctness must be afforded to a state court's factual findings, even when the habeas claim is being examined de novo. See Mansfield v. Secretary, Department of Corrections, 679 F.3d 1301, 1313 (11th Cir. 2012).

         2. 28 U.S.C. § 2254(d)

         The presumption of correctness also applies to habeas claims that were adjudicated on the merits by the state court and, therefore, are claims subject to the standards of review set out in 28 U.S.C. § 2254(d)(1) or (d)(2). “By its terms § 2254(d) bars relitigation of any claim ‘adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).” Harrington v. Richter, 562 U.S. 86, 98 (2011).

         The provisions of 28 U.S.C. § 2254(d)(1) and (d)(2) provide that when a state court has made a decision on a petitioner's constitutional claim, habeas relief cannot be granted, unless the federal court determines that the state court's adjudication of the claim either:

(1) 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
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d) (emphasis added).

         The Supreme Court has explained the deferential review of a state court's findings:

Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams v. Taylor, 529 U.S. 362, 412-13 (2000).

         The court should remember that “an unreasonable application of federal law is different from an incorrect application.” Id. at 410. 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. Rather, that application must also be unreasonable.” Id. at 411 (emphasis added).[8] To demonstrate that a state court's application of clearly established federal law was “objectively unreasonable, ” the habeas petitioner “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. at 786-87 (emphasis added).

         E. An Introduction to Ineffective Assistance of Counsel Claims

         An introduction to ineffective assistance of counsel claims is included here because of the relationship between such claims - which are governed by a highly deferential standard of constitutional law - and 28 U.S.C. § 2254(d), which is itself an extremely deferential standard of review. Additionally, because the majority of Miller's petition is based on allegations of ineffective assistance of counsel, a general discussion also provides a central reference point.

         In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-pronged analysis for determining whether counsel's performance was ineffective. “First, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense.” Id. at 687. Both parts of the Strickland standard must be satisfied: that is, a habeas petitioner bears the burden of proving, by “a preponderance of competent evidence, ” that the performance of his trial or appellate attorney was deficient; and, that the deficient performance prejudiced his defense. Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc). Thus, a federal court is not required to address both parts of the Strickland standard when the habeas petitioner makes an insufficient showing on either one of the prongs. See, e.g., Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (“Because both parts of the test must be satisfied to show a violation of the Sixth Amendment, the court need not address the performance prong if the defendant cannot meet the prejudice prong, or vice versa.”) (citation to Strickland omitted).

         1. The performance prong

         To satisfy the performance prong, the petitioner must “prove by a preponderance of the evidence that counsel's performance was unreasonable.” Stewart v. Secretary, Department of Corrections, 476 F.3d 1193, 1209 (11th Cir. 2007) (citing Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000)). The Sixth Amendment does not guarantee a defendant the very best counsel or the most skilled attorney, but only an attorney who performed reasonably well within the broad range of professional norms. Stewart, 476 F.3d at 1209. “The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial.” White v. Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992). Judicial scrutiny of counsel's performance must be highly deferential, because “[r]epresentation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another.” Strickland, 466 U.S. at 693.

         Indeed, reviewing courts “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. “Based on this strong presumption of competent assistance, the petitioner's burden of persuasion is a heavy one: ‘petitioner must establish that no competent counsel would have taken the action that his counsel did take.'” Stewart, 476 F.3d at 1209 (quoting Chandler, 218 F.3d at 1315) (emphasis added). “Even if many reasonable lawyers would not have done as defense counsel did at trial, no relief can be granted on ineffectiveness grounds unless it is shown that no reasonable lawyer, in the circumstances, would have done so.” Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994) (emphasis added).

         2. The prejudice prong

         “A petitioner's burden of establishing that his lawyer's deficient performance prejudiced his case is also high.” Van Poyck v. Fla. Dep't of Corr., 290 F.3d 1318, 1322 (11th Cir. 2002). “It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. (quoting Strickland, 466 U.S. at 693) (alteration in original). Instead, to prove prejudice, the habeas petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. “[W]hen a petitioner challenges a death sentence, ‘the question is whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.'” Stewart, 476 F.3d 1193, 1209 (11th Cir. 2007) (quoting Strickland, 466 U.S. at 695). The standard is high, and to satisfy it, a petitioner must present “proof of “‘unprofessional errors” so egregious “that the trial was rendered unfair and the verdict rendered suspect.”'” Johnson v. Alabama, 256 F.3d 1156, 1177 (11th Cir. 2001) (quoting Eddmonds v. Peters, 93 F.3d 1307, 1313 (7th Cir. 1996)).

         3. Deference accorded state court findings of historical fact, and decisions on the merits, when evaluating ineffective assistance of counsel claims

         A reviewing court must give state court findings of historical fact made in the course of evaluating a claim of ineffective assistance of counsel a presumption of correctness under 28 U.S.C. §§ 2254(d)(2) and (e)(1). See, e.g., Thompson v. Haley, 255 F.3d 1292, 1297 (11th Cir. 2001). To overcome a state court finding of fact, the petitioner bears a burden of proving contrary facts by clear and convincing evidence.

         Additionally, under the AEDPA, a federal habeas court may grant relief based on a claim of ineffective assistance of counsel only if the state court determination involved an “unreasonable application” of the Strickland standard to the facts of the case. Strickland itself, of course, also requires an assessment of whether counsel's conduct was professionally unreasonable. Those two assessments cannot be conflated into one. See Harrington v. Richter, 562 U.S. 86, 101-02. Thus, habeas relief on a claim of ineffective assistance of counsel can be granted with respect to a claim actually decided by the state courts only if the habeas court determines that it was “objectively unreasonable” for the state courts to find that counsel's conduct was not “professionally unreasonable.” “The standards created by Strickland and § 2254(d) are ‘highly deferential, ' . . . and when the two apply in tandem, review is ‘doubly' so.” Id. at 105.

         VI. MILLER'S CLAIMS

         Miller's habeas petition alleges the following grounds for relief:

A. Ineffective Assistance of Trial Counsel
i. Failure to Conduct an Adequate Investigation and Failure to Uncover Mitigating Evidence a. Impoverished and Unstable Upbringing
b. Miller Family History of Mental Illnesses
c. Physical and Emotional Abuse by Miller's Father d. Exposure to Criminal and Antiosocial Behavior of Family Members
e. Miller's Good Employment History f. Loving Relationships with Family Members
g. Changes in Miller's Behavior Prior to the Shootings h. Behavior in Connection with Shootings at Ferguson Enterprises and Post Airgas
ii. Counsel Sabotaged the Work of the Defense Psychiatric Expert, Dr. Scott, then withdrew Miller's Insanity Defense
iii. Failure to Investigate or Develop Mitigating Evidence Following the Withdrawal of the Insanity Defense
iv. Failure to Conduct Adequate Voir Dire
v. Failure to Give an Effective Opening Statement
vi. Deficient Performance During the Presentation of the State's Guilt Phase Evidence
vii. Failure to Present Available Mental Health Evidence During the Guilt Phase
viii. Failure to Object to Improper Statements in the State's Guilt Phase Closing Argument
ix. Effectively Conceding Miller's Guilt During the Guilt Phase Closing Argument
x. Failure to Request Appropriate Guilt Phase Jury Instructions
xi. Failure to Prepare for the Penalty Phase until the Last Minute
xii. Failure to Present an Effective Opening Statement During the Penalty Phase
xiii. Failure to Present Readily Available Mitigating Evidence during the Penalty Phase
iv. Failure to Adequately Argue the Directed Verdict Motion at the End of the Penalty Phase xv. Ineffective Closing Argument in the Penalty Phase xvi. Failure to Object to Improper Penalty Phase Jury Instructions xvii. Failure to Request a Special Verdict Form to Establish that the Jury had Unanimously Found the Sole Alleged Aggravating Circumstance
xviii. Deficient Performance at the Sentencing Hearing
B. Ineffective Assistance of Appellate Counsel
i. Presentation of the Issue of Trial Counsel's Ineffectiveness in the Motion for New Trial, Precluded Miller from Raising the Issue in His Rule 32 Proceedings
ii. Failure to Conduct an Adequate Investigation into the Ineffective Assistance of Counsel at Trial
iii. Failure to Present Evidence at the Hearing on the Motion for New Trial Establishing the Prejudice He Suffered as a Result of Trial Counsel's Ineffectiveness
iv. Deficient Arguments to the Trial Court in Support of the Few Aspects of Trial Counsel Ineffectiveness Counsel Had Identified
v.[9] Failure to Raise and Argue in the Motion for New Trial, the Many Other Ways Trial Counsel Ineffectively Represented Miller
a. Failure to Conduct Adequate Voir Dire (Claim A(iv))
b. Failure to Object to the Admission of Irrelevant and Prejudicial Testimony and Photographs During the Guilt Phase (Claim A(vi))
c. Failure to Effectively Cross-examine Crucial Prosecution Witnesses (Claim A(vi))
d. Failure to Object to Misleading Portions of the State's Guilt Phase Closing Argument (Claim A(viii))
e. Failure to Make an Effective Guilt Phase Closing Argument (Claim A(ix))
f. Failure to Request Appropriate Guilt Phase Jury Instructions (Claim A(x))
g. Ineffective Reliance on Dr. Scott as the Sole Mitigation Witness During the Penalty Phase (Claim A(xiii))
h. Failure to Adequately Argue the Directed Verdict Motion at the End of the Penalty Phase (Claim A(xiv))
i. Ineffective Closing Argument in the Penalty Phase (Claim A(xv))
j. Failure to Object to Improper Penalty Phase Jury Instructions (Claim A(xvi))
k. Failure to Request a Special Verdict Form to Establish that the Jury had Unanimously Found the Sole Alleged Aggravating Circumstance (Claim A(xvii))
l. Failure to Offer Evidence, Call Witnesses or Arrange for Anyone to Appear on Miller's Behalf at the Sentencing Hearing (Claim A(xviii))
m. Failure to Argue at the Sentencing Hearing That Pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), Miller Was Entitled to a New Penalty Phase Trial Before a Jury That Was Not Advised That its Decision with Respect to the Aggravating Factor Was Merely a “Recommendation” (Claim A(xviii))
vi. Ineffective Assistance of Counsel on Appeal to the Alabama Court of Criminal Appeals
C.[10] Miller's Death Sentence Violates the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution

         A. MILLER'S INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL CLAIMS

         Miller's ineffective assistance of trial counsel claims can be divided into three distinct categories. First, Miller presents claims that were properly exhausted before the Alabama state courts on direct appeal. Second, Miller presents claims that he raised for the first time on collateral appeal. Finally, Miller presents claims that he failed to raise before the state courts on either direct appeal or collateral appeal. This court will address each group of claims in turn.

         1. Claims Raised and Exhausted On Direct Appeal

         Five of Miller's ineffective assistance of trial counsel claims are properly before this court because he fully exhausted the claims on direct appeal. Miller asserted these claims before the trial court in his motion for new trial. The court conducted a hearing on these claims and subsequently denied all of the claims on the merits. (C.R. Vol. 43, Tab 72). Miller then appealed to the Alabama Court of Criminal Appeals, which upheld the lower court's determination. Miller, 913 So.2d 1148. Finally, Miller sought review of these claims before the Alabama Supreme Court, which denied certiorari. Id. Because these claims were fully exhausted on direct appeal, this court will review the state court's determination under AEDPA deference. See Wilwording v. Swenson, 404 U.S. 249, 250 (1971) (recognizing that a petitioner need only present a claim through a single state proceeding to properly exhaust it).

         In reviewing the state court's decision, this court is limited to consideration of the record as it was before the state court on direct review. See Cullen v. Pinholster, 131 S.Ct. 1388, 1400 (2011) (“If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that state court.”). Miller presented a large amount of evidence at the Rule 32 hearings, and Miller's habeas petition relies heavily on this evidence. Nevertheless, this court must limit its review of Miller's fully exhausted ineffective assistance of trial counsel claims to the record before the state court on direct appeal.[11]

         a)Claim A(ii): Miller's Claim That Trial Counsel Was Ineffective For Sabotaging the Work of the Defense Psychiatric Expert and For Withdrawing the Plea of Not Guilty by Reason of Mental Disease or Defect

         Within this claim, Miller combines two different instances in which he alleges trial counsel was ineffective. First, Miller alleges that trial counsel was ineffective for failing to provide sufficient evidence to the defense psychiatric expert, Dr. Scott, to allow Dr. Scott to determine whether Miller was sane at the time of the shootings. (Doc. 1, at 48-66). Second, Miller alleges that trial counsel was ineffective for subsequently withdrawing Miller's insanity defense. (Id. at 66).

         On direct appeal, Miller only asserted that trial counsel, Mickey Johnson, was ineffective for withdrawing Miller's insanity defense and did not allege that trial counsel was ineffective for failing to provide specific documents to defense expert, Dr. Scott. (C.R. Vol. 16, Tab 32, at 20-21). Not until collateral appeal did Miller add within this claim, the argument that trial counsel should have provided additional information to Dr. Scott. (Rule 32 C.R. Vol. 19, Tab 44, at 38-41). Because Miller failed to argue on direct appeal that trial counsel was ineffective for failing to provide documents to Dr. Scott, this portion of the claim is procedurally defaulted.[12] See Baldwin v. Johnson, 152 F.3d 1304, 1311 (11th Cir. 1998) (“A habeas corpus petitioner may not present instances of ineffective assistance of counsel in his federal petition that the state court has not evaluated previously.”); Hunt v. Commissioner, Ala. Dep't of Corr., 666 F.3d 708, 730-31 (11th Cir.2012) (holding that “[t]o satisfy the exhaustion requirement, petitioners must present their claims to the state courts such that the reasonable reader would understand each claim's particular legal basis and specific factual foundation”); Johnson v. Alabama, 256 F.3d 1156, 1170 (11th Cir. 2001).

         To the extent that Miller did raise this claim on direct appeal, this court finds that the state court's rejection of the claim was reasonable under Strickland. In addressing this claim, the Alabama Court of Criminal Appeals found that:

Johnson met with Miller on a number of occasions before trial. Before forming a strategy for Miller's case, Johnson reviewed all of the investigative reports, diagrams, statements, photographs, videotapes, and scientific reports; he also talked with his client. Johnson filed a motion requesting funds for an independent psychological evaluation of Miller. The trial court granted his motion, and Johnson retained Dr. Charles Scott from the University of California to evaluate Miller. After talking with Dr. Scott and reviewing Dr. Scott's written report, Johnson determined that there was insufficient evidence to raise an insanity defense during the guilt phase. In his opinion, it was better to present Dr. Scott's testimony at the penalty phase because presenting his testimony during the guilt phase would have negated Dr. Scott's credibility and lessened the impact of the evidence during the penalty phase. Johnson made this decision after reviewing the reports from other mental-health evaluations of Miller, which were consistent with Dr. Scott's findings.
After reviewing the evidence, Johnson made a strategic decision to concentrate his efforts and defense on the penalty phase of the trial. In his opinion, the State's evidence of Miller's guilt “was too overwhelming to seriously contest, ” given that he had no valid legal defense for the guilt phase. Accordingly, Johnson decided to concentrate on saving Miller's life.
Johnson focused his efforts during the guilt phase on maintaining credibility with the jury. In accordance with this strategy, he admitted to the jury early on in the proceedings that the evidence of Miller's guilt was strong because he wanted to lessen the impact of the evidence against Miller. Johnson felt that his duty during the guilt phase was to make the State meet its burden of proof.

Miller, 913 So.2d at 1159-60. The court determined that trial counsel's decision to withdraw the insanity defense was a “well-reasoned decision, ” part of a strategy to spare Miller's life, made after a “thorough investigation of the relevant law and facts of Miller's case.” Id. at 1161.

         Miller fails to meet his heavy burden of proving that his trial counsel performed unreasonably by pursuing this strategy. On the record before the state court, the strategic choices made by trial counsel were reasonable and constitutionally adequate in the circumstances. In preparation for Miller's trial, counsel hired Dr. Scott to conduct an evaluation of Miller to determine whether Miller was legally insane at the time of the murders. (C.R. Vol. 9, Tab 30, at 17-18). After evaluating Miller, Dr. Scott concluded that Miller did not meet the definition of insanity under Alabama law. (C.R. Vol. 9, Tab 30, at 28-29). Trial counsel also reviewed the reports of a state psychologist and state psychiatrist, both of which were consistent with Dr. Scott's determination. (C.R. Vol. 9, Tab 30, at 93-94). Given that no mental health expert determined Miller to meet the definition of insanity, trial counsel's decision to withdraw the insanity defense was reasonable. See Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (“[T]his court has never ...


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