United States District Court, N.D. Alabama, Southern Division
OWEN BOWDRE, CHIEF UNITED STATES DISTRICT JUDGE
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. (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.
Offense Conduct. . .........................................
Trial: Guilt and Penalty Phases..
Sentencing Hearing. .
Motion for a New Trial.. ..................................
Direct Appeal. . ......................................... 19
32 Proceedings in Shelby County Circuit Court ............ 21
Exhaustion of State Court Remedies: The First Condition
Precedent to Federal Habeas Review. .
Procedural Default Doctrine: The Second Condition Precedent
to Federal Habeas Review. . .................................
Overcoming Procedural Default: The Cause and Prejudice
Analysis. . . . . .27
Statutory Overlay: The Effect of “the Antiterrorism and
Effective Death Penalty Act of 1996” on Habeas Review
Title 28 U.S.C. § 2254(e)(1).. .........................
U.S.C. § 2254(d) ................................. 29
Introduction to Ineffective Assistance of Counsel Claims.. .
. . . 32
performance prong. . ............................ 33
prejudice prong ................................. 34
Deference accorded state court findings of historical fact,
and decisions on the merits, when evaluating ineffective
assistance of counsel claims..
Miller's Ineffective Assistance of Trial Counsel Claims..
Claims Raised and Exhausted On Direct Appeal.. ......... 41
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
Claim A(v): Miller's Claim That Trial Counsel Was
Ineffective In His Guilt phase Opening Statement. . . . 46
Claim A(vi): Miller's Claim That Trial Counsel Was
Ineffective During The Presentation of The State's Guilt
phase Evidence ............................... 51
Claim A(vii): Miller's Claim That Trial Counsel was
Ineffective for Failing to Present Mental Health Evidence
During the Guilt Phase . . .. ..................... 53
Claim A(xii): Miller's Claim That Trial Counsel Denied
Miller Effective Assistance in His Penalty phase Opening
Statement. . .................................. 56
Claims Raised For the First Time On Collateral Appeal.. . . .
Claims Raised For the First Time Before This Court. . .....
67 B. Miller's Ineffective Assistance of Appellate
Counsel Claims.. . . . . 68
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
Procedural Default .......................... 72
Merits ....................................... 72
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. . . .
Procedural Default .......................... 75
Merits ....................................... 75
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 ...... ...................
Miller's claim that trial counsel's opening statement
during the guilt phase was ineffective.. ..................
Procedural Default. . . .................. 81
Merits .................................. 81
Miller's claim that trial counsel was ineffective for
withdrawing the insanity defense. . ............... 83
Procedural Default. . . .................. 84
Merits .................................. 84
Miller's claim that trial counsel was ineffective for
failing to present mental health evidence during the guilt
phase of trial ......................................... 93
Procedural Default. . . .................. 94
Merits .................................. 94
Miller's claim that trial counsel's penalty phase
opening statement was ineffective.. ...................... 98
Procedural Default. . . .................. 98
Merits .................................. 99
Miller's claim that trial counsel failed to adequately
investigate and present mitigation evidence during the
penalty phase. . .............................. 101
Procedural Default. . . ................. 102
Merits ................................. 102
abuse Miller suffered at the hands of his father. .
Miller's impoverished childhood and exposure to the
criminal behavior of his family members ....................
Miller family history of mental illness. .
Miller's good employment history and relationship with
his family.. ......... 108
Miller's behavior prior to the shootings. . . .
Miller's behavior on the day of the shootings.
Prejudice analysis. . ..................... 109
Claim B(v): Miller's Claim That Appellate Counsel was
Ineffective for Failing to Raise Other Claims of Ineffective
Assistance of Trial Counsel . . ........................ 118
Trial Counsel's performance during jury voir dire. . .
Procedural Default. . . ................. 120
Merits ................................. 120
Failure to object to the admission of testimony and
photographs during the guilt phase of trial .. ....... 127
Procedural Default.. ..................... 128
Merits ................................. 129
Ineffective cross-examination of crucial prosecution
witnesses.. .................................. 131
Procedural Default.. ..................... 132
Merits ................................. 133
Failure to object to portions of the state's guilt phase
closing argument. . ........................... 134
Procedural Default.. ..................... 135
Merits ................................. 135
Ineffective guilt phase closing argument.. ......... 136
Procedural Default. . . ................. 136
Merits ................................. 136
Failure to request jury instructions to protect Miller's
rights . . ......................................... 140
Procedural Default.. ..................... 141
Merits ................................. 141
Relying on Dr. Scott as the sole mitigation witness during
the penalty phase of trial. . ..................... 144
Procedural Default. . . ................. 145
Merits ................................. 145
Failure to move for a directed verdict during the penalty
phase.. ..................................... 146
Procedural Default.. ..................... 147
Merits ................................. 148
Inadequate penalty phase closing argument. . ...... 151
Procedural Default.. ..................... 152
Merits ................................. 153
Failure to object to the court's penalty phase jury
instructions. . ................................ 159
Procedural Default.. ..................... 160
Merits ................................. 160
Failure to request a special verdict form ........... 164
Procedural Default.. ..................... 165
Merits ................................. 165
Inadequate representation at the sentencing hearing.. 168
Procedural Default. . . ................. 169
Merits ................................. 169
Failure to bring the Supreme Court's decision in
Apprendi v. New Jersey to the trial court's
attention .......... 173
Procedural Default.. ..................... 174
Merits ................................. 175
Claim B(vi): Miller's Claim That Appellate Counsel was
Ineffective in the Appeal to the Alabama Court of Criminal
Appeals .......................................... 176
Procedural Default ............................ 177
Merits ...................................... 177
Validity of the Death Sentence.. ...........................
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
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
Miller v. State, 913 So.2d 1148, 1154-56
TRIAL: GUILT AND PENALTY PHASES
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). 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).
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).
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). 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).
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.(C.R. Vol. 1, Tab 1, at 4).
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).
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).
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).
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-
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).
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).
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
Motion for a New Trial
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).
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).
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
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).
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. (R. Vol. 43, Tab 72, at 1-23).
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).
32 Proceedings in Shelby County Circuit Court
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).
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).
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. 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).
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).
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
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.
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).
Exhaustion of State Court Remedies: The First Condition
Precedent to Federal Habeas Review
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).
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)).
Procedural Default Doctrine: The Second Condition Precedent
to Federal Habeas Review
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)).
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)).
Overcoming procedural default: The Cause and Prejudice
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.
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,
Statutory Overlay: The Effect of “the Antiterrorism and
Effective Death Penalty Act of 1996” on Habeas Review
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).
Title 28 U.S.C. § 2254(e)(1)
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).
U.S.C. § 2254(d)
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,
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;
(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).
Supreme Court has explained the deferential review of a state
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
Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
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). 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).
Introduction to Ineffective Assistance of Counsel Claims
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.
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
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.
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)
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.
Deference accorded state court findings of historical fact,
and decisions on the merits, when evaluating ineffective
assistance of counsel claims
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.
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.
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
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
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
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
xi. Failure to Prepare for the Penalty Phase until the Last
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
Failure to Raise and Argue in the Motion for New Trial, the
Many Other Ways Trial Counsel Ineffectively Represented
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
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
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
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. Miller's Death Sentence Violates the
Sixth, Eighth, and Fourteenth Amendments to the United States
MILLER'S INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL CLAIMS
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.
Claims Raised and Exhausted On Direct Appeal
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).
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
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
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).
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. 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).
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.
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 ...