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Dallas v. Dunn

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

July 14, 2017

DONALD DALLAS, Petitioner,
v.
JEFFERSON S. DUNN, Commissioner, Alabama Department of Corrections, Respondent.

          MEMORANDUM OPINION AND ORDER

          W. KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE.

         Petitioner Donald Dallas filed this federal habeas corpus action pursuant to 28 U.S.C. §2254 challenging his October 1995 Montgomery County conviction for capital murder and sentence of death. For the reasons set forth below, Petitioner is entitled to neither habeas corpus relief nor a Certificate of Appealability.

         I. BACKGROUND

         A. The Offense

         There is no genuine dispute as to the facts of Petitioner's offense. The day of his arrest for the murder of 73-year-old Hazel Liveoak, Petitioner gave police a videotaped statement in which he admitted he and an accomplice (1) kidnapped the elderly Mrs. Liveoak from a grocery store parking lot in Prattville, Alabama, on the afternoon of July 12, 1994, (2) drove her in her own vehicle to a location south of Montgomery where, despite her protests that she had a heart condition, he convinced her to get into the trunk of her car with a promise to release her once they reached her bank, (3) drove Mrs. Liveoak to a parking lot in south Montgomery where Petitioner and his accomplice convinced her to furnish the access code for her bank card and withdrew money from her bank account using her bank access card after promising to notify police of her location, (4) abandoned Mrs. Liveoak's vehicle (with her still in the trunk) in an isolated area of a K-Mart parking lot where it was discovered the following day containing Mrs. Liveoak's lifeless body, and (5) despite Petitioner's repeated assurances and promises, made no effort to contact or notify anyone of Mrs. Liveoak's location or perilous predicament.[1] Petitioner testified at the guilt-innocence phase of his trial in a manner consistent with his post-arrest statement to police.[2]

         B. Indictment

         In October 1994, a Montgomery County grand jury returned a seventeen-count indictment charging Petitioner with (1) two counts of capital murder, i.e., intentionally causing the death of Hazel Liveoak (a) by inducing a heart attack by confining her in an automobile trunk during a kidnaping, to wit, abducting her with the intent to accomplish or aid the commission of felony robbery and (b) intentionally causing the death of Hazel Liveoak by confining her in an automobile trunk and causing death during a robbery, i.e., the theft of a VISA card by force with the intent to overcome her physical resistance causing serious physical injury, (2) three counts of fraudulent use of a credit card, (3) one count of theft of property by deception, and (4) eleven counts of unauthorized use of a communications device.[3]

         C. Guilt-Innocence Phase of Trial

         The guilt-innocence phase of Petitioner's capital murder trial commenced on October 17, 1995.

         1. The Prosecution's Evidence

         The prosecution presented Mrs. Liveoak's son who testified regarding the circumstances surrounding her disappearance and his delivery of a spare key to her vehicle to a law enforcement officer in Millbrook.[4] A university maintenance worker testified that (1) he heard a radio broadcast regarding a missing person driving a maroon Chrysler with an Elmore County license plate, (2) he observed a red vehicle with an Elmore tag parked in a very isolated location within a K-Mart parking lot in South Montgomery, and (3) he called police when he got home.[5] The former police chief of Millbrook testified he (1) delivered the key to Mrs. Liveoak's vehicle to Montgomery police officers at the K-Mart parking lot and (2) was present when other law enforcement officers opened her automobile trunk and discovered her lifeless body.[6] A Montgomery police patrol officer testified regarding the isolated location of Mrs. Liveoak's vehicle within the K-Mart parking lot and the conditions inside her passenger compartment when the vehicle was discovered, including the fact no keys were found inside the vehicle.[7]

         A Montgomery police evidence technician testified that (1) he photographed Mrs. Liveoak's lifeless body after it was discovered inside the trunk of her car, (2) her vehicle was located 350 feet from the K-Mart store, 202 feet from the AmSouth Bank, and 166 feet from East South Boulevard, (3) after her body was removed, her vehicle was taken to a police facility and processed for fingerprints, (4) the entire crime scene was photographed and videotaped, (5) an earring matching one found inside the trunk was found outside the lip of the trunk, (6) no fingerprints were found inside the interior of the vehicle, but (7) a palm print was found on the outside of the vehicle's trunk.[8] A latent fingerprint examiner testified that Petitioner's palm print matched that lifted from the driver's side of the trunk lid of Mrs. Liveoak's vehicle.[9]

         The state medical examiner testified that (1) he performed an autopsy on the 73-year-old Mrs. Liveoak on July 14, 1994, (2) Mrs. Liveoak had bruising on the right side of her head, the backs of both hands and wrists, and her right biceps, (3) she also had non-life-threatening minor cuts to both her palms, (4) the bruising and lacerations to her hands were consistent with efforts to bang on a trunk lid to get out, (5) the bruising to her right arm was consistent with someone grabbing her in an effort to control or manipulate her, (6) her heart displayed extreme arthrosclerosis, i.e., blockage, in the descending coronary artery, (7) he found evidence she had suffered a prior heart attack but had recovered from same, (8) he did not find evidence of a recent heart attack, (9) her general cardiac health was “very questionable, ” (10) there was evidence the blood supply to the heart was markedly diminished, (11) he found severe pulmonary edema, i.e., fluid backed up into the lungs, (12) her heart was failing, (13) her cause of death was cardiac failure, (13) the manner of her death was homicide, (14) while Mrs. Liveoak apparently was able to do her daily chores and take care of her personal affairs, she lacked the cardiac reserve to be able to handle the extremely stressful confines in which she was placed, i.e., being confined in a hot, dark, space for hours, and (15) her heart could not take the stress, which is why he concluded her death was the result of “homicide by heart attack.”[10]

         A Montgomery Police Detective testified that (1) there were no signs of life but there was a strong odor of spoiled milk and a body when he arrived at the K- Mart parking lot around 2010 hours on July 13, 1994, (2) no other cars were parked near Mrs. Liveoak's vehicle, (3) when the trunk lid was opened, there was condensation on the inside lid of the trunk, (4) Mrs. Liveoak's pants were stained and there were visible bruises and scratches on her hands, (5) paramedics present when the trunk was opened found no signs of life in Mrs. Liveoak's body, (6) her body was taken away for autopsy, (7) no car keys were found inside Mrs. Liveoak's vehicle, (8) her purse was found but not her billfold, (9) after speaking with Tony Bowen, he and other law enforcement officers developed Petitioner and Carolyn “Polly” Yaw as suspects, (10) he discovered Petitioner and Yaw had registered at a motel on July 13, 1994, (11) a search for a white vehicle driven by “Blake” led to the arrests of Petitioner and Yaw after a brief chase, (12) he gave Petitioner his Miranda warnings, (13) Petitioner indicated that he understood his rights, read his rights form, and signed same, (14) he advised Petitioner he was charged with capital murder and faced the death penalty or life in prison, (15) Petitioner did not appear to be intoxicated or under the influence of alcohol or narcotics, (16) Petitioner was cooperative, (17) during his initial interview, Petitioner stated that (a) he found Mrs. Liveoak's vehicle with the keys inside it in the Wal-Mart parking lot in Prattville, (b) he drove the vehicle to the K-Mart in Montgomery, (c) he opened the trunk of her vehicle, (d) he found her body, and (e) he closed the trunk lid and left the scene, (18) after further questioning, Petitioner admitted that (a) he grabbed the lady in the WalMart parking lot, (b) she screamed and hollered as he drove her vehicle to Greenville, (c) he put the lady in the trunk of her car despite the fact the victim said she had a bad heart, (d) he told her he would send someone to get her out once he left her, (e) he passed out after doing crack the evening of the kidnaping and did not wake until the following morning, and (f) when he awoke he figured it was too late to get help for the lady, (19) a knife was recovered from the rear passenger side floorboard of the white vehicle in which Petitioner was riding at the time of his arrest, and (20) Petitioner gave a voluntary videotaped statement that was not induced by any promises, threats, or other forms of coercion.[11]

         Dennis Anthony Bowen testified that (1) he met Petitioner in July 1994 when he went to Chester Foley's house to smoke crack cocaine, (2) at the time of Petitioner's capital murder trial, he had been in an outpatient drug treatment program for about a year, (3) in July 1994 he drove Petitioner and Carolyn “Polly” Yaw to WalMart to shoplift cigarettes to get money to buy drugs, (4) Petitioner ran out of the store carrying a television in a box, (5) Petitioner threw the box into the bed of Bowen's truck, wrestled with a store employee, and then jumped into the truck, (6) Bowen drove away, (7) Bowen and Petitioner were both later arrested in connection with the incident at WalMart, (8) through conversations with Chester Foley, Petitioner, and Yaw, Bowen became aware that Petitioner and Yaw claimed they robbed and placed an old lady in a trunk and got money with the lady's bank card, (9) when Bowen asked Petitioner and Yaw about their claims, Petitioner sarcastically responded that he wished or hoped the old lady died, and (10) Bowen saw an article in the next morning's newspaper about the missing woman, went to visit his attorney, and met with police to reveal what he knew.[12]

         An elderly man testified that (1) he went to the WalMart in Prattville on July 9, 1994 to return a microwave oven, (2) as he was returning to his car, a robber with a knife got into his car and struck his fingers, (3) the robber drove his car to Millbrook and stopped in a wooded area, (4) after he gave the robber about $170 in cash, the robber forced him to get out of the car and lie down in the woods, (5) the robber threatened to lock him in the trunk of the car but he protested that he would “smother to death in there, ” (6) the robber drove off in the victim's car, (7) he got up and walked about a mile down the road where he found his car but not the keys, (8) he later saw a newscast regarding a missing lady and recognized Petitioner as his robber, and (9) Petitioner pleaded guilty to robbing him.[13]

         2. The Defense's Evidence

         Called by the defense, an acquaintance of Petitioner testified that (1) Petitioner was crying and appeared to be worried after Petitioner saw television coverage of the discovery of Mrs. Liveoak's body and (2) Petitioner said that he had tried to get “that boy” to take him back over there.[14]

         A clinical psychologist who had examined Petitioner for competency to stand trial testified that (1) Petitioner had a long history of substance abuse beginning with alcohol abuse around age 7-8, regular marijuana use around age 12-13, and intravenous drugs - including crystal meth and dilaudid - around age 13-14, (2) people with an early history of IV drug abuse have a more difficult time quitting because it retards social and psychological development, (3) those who smoke or inhale crack cocaine have a harder time stopping its use and staying off it, (4) while crack is not physically addictive, i.e., there is no treatment regimen for addiction, it results in a very intense psychological addiction causing a craving for the drug and a dependence that requires users to need more of the drug to get the same effect, (5) the psychological craving resulting from crack cocaine abuse causes intense discomfort and irritability, (6) Petitioner has been diagnosed as dependent upon cocaine, (7) at the time of his capital offense, Petitioner was binging on crack, i.e., he wanted more and more of the drug and used large quantities of crack within shorter time periods, (8) Petitioner had been binging on crack for twelve days prior to his encounter with Mrs. Liveoak and was oblivious to time at that time, (9) Petitioner was functioning at below the average intelligence level at the time of his capital offense, (10) despite his abuse of crack, Petitioner knew the difference between right and wrong, (11) Petitioner became tearful when he related the circumstances of Mrs. Liveoak's death, and (12) Petitioner was remorseful - denying he ever intended for Mrs. Liveoak to die.[15]

         An attorney (and Petitioner's court-appointed mitigation specialist) testified the federal Sentencing Guidelines treated crack cocaine as more dangerous and addictive than powder cocaine.[16]

         Petitioner testified on direct examination that (1) he was born and raised in New York until age 6 or 7 when his parents divorced and he moved with his mother and two of his siblings to Florida, where he began abusing alcohol, (2) he skipped school regularly, (3) he played in a band in bars with his step-father beginning around age 10 and continued drinking alcohol, (4) he began using marijuana around age nine and often stole from his mother to pay for pot when he was in middle school, (5) he had no parental supervision growing up and did not attend church, (6) he began using cocaine intravenously around age 13, (7) crystal meth, used intravenously, became his drug of choice around the same time, (8) he also abused Quaaludes, Placidyls, Desoxyns, Mepergan, Deerol, and LSD, (9) he “discovered” crack cocaine in 1992 which he smoked, (10) he had been doing crack for about two weeks immediately prior to his encounter with Mrs. Libeoak, (11) he pawned everything he owned to buy crack, (12) he stole cigarettes and meat from grocery stores to pay for drugs, which he bought from Chester Foley, (13) he and Carolyn Yaw have five children, (14) he and Mike Kelly robbed Mr. Portwood at knife point, (15) he never touched Portwood but did threaten him, (16) the night before he encountered Mrs. Liveoak, he traded a stolen bicycle for crack, (17) he pushed Mrs. Liveoak into her car and drove away from the WalMart in Prattville, (18) Mrs. Liveoak was scared and offered to get money for him from her credit cards, (19) as he drove Mrs. Liveoak's car south on the Interstate, he told her he had a crack problem and she prayed for him, (20) he drove to a road in the woods, stopped the car, and directed Mrs. Liveoak to get out and walk into the woods, (21) when she said she was scared, he suggested she get into the trunk and promised she would get out as soon as he got to the bank and got the money, (22) when they reached the AmSouth Bank on South Boulevard in Montgomery, initially Carolyn Yaw could not get the teller machine to work, (23) he had been speaking with Mrs. Liveoak from inside the car but he got out and sat on the trunk to hear her better, (24) when Mrs. Liveoak gave him the phone number for her son, he did not write it down, (25) he promised Mrs. Liveoak he would call the police to let her out of the trunk, (26) after he and Carolyn Yaw got money from Mrs. Liveoak's bank account, they called a cab and left for Chester Foley's house, (27) they later went to a motel where they smoked crack until dawn, (28) at check-out time, they went back to Chester Foley's house, (29) he, Yaw, and Dennis Bowen went to the WalMart in Prattville to steal things to trade for more crack, (30) he and Dale Blake went to Wetumpka and Millbrook and stole items to trade for crack, and (31) when he awoke the morning after his encounter with Mrs. Liveoak, he assumed she had gotten out of her trunk and he was likely wanted for kidnaping and robbery.[17]

         Petitioner's cross-examination concluded as follows:

Q: There you are driving around, riding around in that parking lot, and there was Mrs. Liveoak still in the trunk of that car?
A: Yes.
Q: And did you park the car back in the K-Mart parking lot?
A: Yes.
Q: Mr. Dallas, why didn't you leave the keys with the car?
A: I thought I did.
Q: But you didn't, did you?
A: If you didn't find them, then, obviously not.
Q: Mr. Dallas, why didn't you at least move that car in a closer position where someone might happen upon it?
A: I wasn't thinking about that.
Q: You weren't thinking about Mrs. Liveoak at all, were you?
A: I just wanted to get out.
Q: You didn't care about Mrs. Liveoak, did you?
A:` That's not so.
Q: Mr. Dallas, this is a woman that was praying for your crack addiction. I think that's what you testified to. Is that right?
A: Yeah.
Q: And you were paying her by leaving her in the trunk of a car and parked that car in an area where it was not likely to be found and she was not likely to be found. Is that how you repaid her, Mr. Dallas?
A: No.
Q: Let me ask you this, Mr. Dallas. When you went over to that crack house and got in that cab, it is a long way from K-Mart parking lot to Chisholm, isn't it?
A: It is.
Q: Do you have any idea how many pay phones you passed along the way?
A: I guess I figured she got found, because --
Q: That wasn't my question.
A: Redo your question, please.
Q: Do you have any idea how many pay phones you passed along the way?
A: Five hundred.
Q: A bunch?
A: A bunch.
Q: And you had eight hundred dollars on you, right? That's what you testified to?
A: Right.
Q: Out of that eight hundred dollars, do you think you may could have gotten a quarter to use one of those pay phones?
A: We never stopped.
Q: Did you ever ask the cab driver to stop?
A: No.
Q: When you went to the Coliseum Motel that night, you didn't have a way there, did you?
A: Yes.
Q: You did?
A: Yes, sir.
Q: I take it back. I am sorry. You had to get a ride to go there, right?
A: Yes, I did.
Q: From the crack house, Chester Foley's house or whatever it was in Chisholm to the Coliseum Motel, did you pass a number of pay phones at that time?
A: Yes.
Q: Still had money on you, too, didn't you?
A: Yeah.
Q: Obviously you had money on you, because you had enough money to get a hotel room?
A: Correct.
Q: Didn't use a quarter at that time to call for help, did you?
A: I never used the phone.
Q: Never stopped, did you?
A: No.
Q: How about the Coliseum Motel itself, there were phones in that motel, weren't there?
A: I expect so.
Q: You expect so. Only you didn't even try, did you?
A: I never used the phone. I never used it.
Q: I think you said you didn't call a cab to go back over to the K-Mart parking lot to check on her, because you felt it may draw too much attention to yourself?
A: (No verbal response.)
Q: Is that a yes?
A: Yes.
Q: Mr. Dallas, you don't dispute at all that you intended to abduct and kidnap Hazel Liveoak, correct?
A: Correct.
Q: And you don't dispute that you did intend to rob Hazel Liveoak?
A: No.
Q: You don't dispute the fact that you intended to place Mrs. Liveoak in the trunk of the car there on that dirt road?
A: No.
Q: And you don't dispute the fact that you intended to leave and drive around with Mrs. Liveoak in the trunk of that car; is that right?
A: Yes.
Q: You don't dispute the fact that you intended to leave, when you left the K-Mart parking lot, to keep Mrs. Liveoak in the trunk of that car when you left?
A: I never thought too much about it. When the money came out of the machine, I guess that was it. I never thought about anything but getting out of there.
Q: And you were worried about getting caught?
A: Yes.
Q: As a matter of fact, you were so worried about getting caught the next day when you found out about Mrs. Liveoak's death, you cut your hair to try and change your appearance?
A: I started to run, yeah.
Q; Mr. Dallas, isn't it true the first time you have shown any remorse or any worry about what you did on that day is when you found out that Mrs. Liveoak was dead.
A: It wasn't supposed to happen.
Q: You didn't show any remorse when you were hitting on a crack pot that night, were you?
A: (No verbal response.)
Q: Were you?
A: (Witness shakes head negatively.)
Q: You didn't show any remorse when you went up to Wal-Mart to steal more for crack, did you?
A: No.
Q: You didn't give her a thought?
A: That's crack addiction.
Q: You didn't give her a thought, did you?
A: Excuse me?
Q: You didn't give her a thought, did you?
A: I was wanted for robbery now.[18]

         3. The Guilt-Innocence Phase Jury Charge and Verdict

         The trial judge instructed the jury at the conclusion of the guilt-innocence phase of Petitioner's capital murder trial that (1) capital murder as defined by state law “is basically intentional murder with something additional, ” (2) count one of the indictment against Petitioner charged intentional murder during a kidnaping, (3) count two charged intentional murder during a robbery, (4) in addition to the capital murder counts, the jury also had before it lesser-included offenses consisting of felony murder and manslaughter, (5) the jury could convict Petitioner of capital murder only if the jury concluded beyond a reasonable doubt that the Petitioner caused the death of Mrs. Liveoak and intended to kill her, (6) a person acts intentionally with respect to a result or conduct when it is his or her purpose to cause that result or to engage in that conduct, (7) the jury could convict Petitioner of capital murder only if it concluded beyond a reasonable doubt that the Petitioner abducted or robbed Mrs. Liveoak or intended to accomplish or aid in the commission of the kidnaping or robbery of Mrs. Liveoak or the flight therefrom, (8) evidence of intoxication is relevant to negate an element of the offense charged, (9) to convict when the defense of intoxication is raised, the prosecution must also prove beyond a reasonable doubt that at the time of the alleged offense, the defendant did not, as a result of being intoxicated, lack the capacity to either appreciate the criminality of his alleged conduct or to conform his alleged conduct to the requirements of law, (10) a person acts intentionally when his purpose is to cause a specific result, (11) the jury could infer that a person intends the natural consequences of what he does if the act is done intentionally, (12) the jury could consider the Petitioner's conduct and demeanor immediately after the crime in his statements to aid in characterizing his intent, and (13) the jury's verdict must be unanimous.[19]

         The jury retired to deliberate at the guilt-innocence phase of trial at 1:30 PM on October 19, 1995.[20] At 1:50 PM the same date, the jury returned its verdict on all seventeen counts of the indictment, finding Petitioner guilty beyond a reasonable doubt on all counts.[21] The trial judge instructed the jury to return to the jury room and to designate on the verdict form under which (or both) of the two theories of capital murder the jury had convicted Petitioner of that offense.[22] The jury returned to the courtroom shortly thereafter, and the trial court asked the jury foreman in open court whether the jury's action in circling both kidnaping and robbery on the verdict form indicated the jury had concluded Petitioner was guilty of capital murder under both theories submitted in the jury charge; the jury foreman stated that was correct.[23]

         D. Punishment Phase of Trial

         The punishment or sentencing phase of Petitioner's capital murder trial commenced at 2:45 PM the same date.

         1. Prosecution's Punishment Phase Evidence

         The prosecution presented only one witness at the punishment phase of Petitioner's trial - the victim's son Larry Liveoak. Mr. Liveoak testified briefly about (1) the stress and emotional duress he and his family suffered during the search for his mother after she went missing, (2) the important role his mother played in their family, (3) the good works his mother performed while alive, and (4) the impact his mother's death had on him and his family.[24]

         2. Defense's Punishment Phase Evidence

         Petitioner's older sister testified that (1) their family split up and there was a lot of violence involving guns and knives between their parents, (2) Petitioner was without parental guidance, supervision, or direction growing up, (3) their parents beat them, (4) Petitioner witnessed her being beaten, (5) their father was an alcoholic, (6) after their parents separated, she, their brother Paul, and Petitioner went to live with their mother in a home she could best describe as “hell, ” (7) their mother and step-father ignored Petitioner, allowing him to do as he pleased, (8) Petitioner was aware that she was molested, (9) their mother was taken to an insane asylum on two occasions, (10) she and Petitioner were raised in bars and were lucky to have food in their home, sometimes going as long as a week without eating, (11) she ran away from home at age eighteen and got married, (12) Petitioner had two children with a woman named Pam with whom Petitioner lived for three years, (13) Pam was a good influence on Petitioner, (14) Petitioner began going out with Carolyn “Polly” Yaw about fourteen years before the date of trial, (15) Yaw got Petitioner into drugs, at which point Petitioner became “a different person, ” (16) Yaw dominated Petitioner, who took the blame for Yaw's criminal behavior, and (17) Petitioner's behavior vis-à-vis Mrs. Liveoak did not accurately reflect Petitioner's character.[25]

         One of Petitioner's older brothers testified that (1) he has convictions for DUI and possession of marijuana, (2) their oldest brother went to live with another family at some point and grew up to become a counselor for children in New York, (3) Petitioner was gainfully employed at some point as an electrician, (4) Yaw was a bad influence on Petitioner, (5) Yaw and an accomplice once stabbed a man and stole the man's money and clothes, (6) Petitioner never got into trouble at school and made it to the sixth grade, (7) Petitioner was doing crack for two weeks prior to his capital offense, and (8) Petitioner was different when on crack.[26]

         Petitioner's former common law wife testified that (1) she and Petitioner had two teenage daughters, (2) Petitioner was a kind person who worked with her older brother, (3) Polly Yaw caused their breakup at a time when Petitioner was working in Tuscaloosa, (4) their breakup happened after she and Petitioner argued and the next thing she knew, Petitioner was dating Yaw and doing drugs, (5) Yaw once struck her, (6) it was out of character for Petitioner to kill someone, (7) she had never known Petitioner to be violent, and (8) she did not believe Petitioner would be violent in prison.[27]

         Polly Yaw's step-sister testified that (1) she had known Petitioner since she was sixteen, (2) Petitioner is not a violent person, (3) Polly Yaw's reputation in the community was “mean, ” (4) Yaw always nagged Petitioner, (5) Yaw got Petitioner on crack, and (6) Petitioner is sincerely remorseful for Mrs. Liveoak's death.[28]

         3. Punishment Phase Jury Charge & Verdict

         The state trial court instructed the jury (1) it was to consider all of the evidence, including the evidence offered during both the guilt-innocence and punishment phases of trial, when making its sentencing recommendation, (2) it could consider only those aggravating factors which it determined had been established beyond a reasonable doubt, (3) more specifically, it could only consider the following aggravating factors (but only if the jury determined it had been established beyond a reasonable doubt): (a) the Petitioner had previously been convicted of another felony involving the use or threatened use of violence to another person, (b) the Petitioner committed capital murder while engaged in the commission or attempted commission or flight from either robbery in the first degree or kidnaping in the first degree, and (c) Petitioner's capital murder was especially heinous, atrocious, or cruel compared to other capital offenses, (4) “heinous” means “extremely wicked or shockingly evil, ” (5) “atrocious” means “outrageously wicked and violent, ” (6) “cruel” means “designed to inflict a high degree of pain with utter indifference to or even enjoyment of the suffering of others, ” (7) for a capital offense to be “especially heinous and atrocious” any brutality involved “must exceed that which is normally present in any capital offense, ” (8) for a capital offense to be “especially cruel, ” it must be “a conscienceless or pitiless crime which is unnecessarily torturous to the victim, ” (9) “all capital offenses are heinous, atrocious, and cruel to some extent, ” (10) the jury instruction was intended to cover “only those cases in which the degree of heinousness, atrociousness or cruelty exceeds that [which] will always exist when a capital offense is committed, ” (11) before making a recommendation in favor of a death sentence, the jury must unanimously agree that the prosecution had presented evidence establishing beyond a reasonable doubt the existence of at least one of the foregoing aggravating factors, (12) the jury must weigh against any aggravating factors all mitigating circumstances presented, (13) a “mitigating circumstance” means any evidence which “indicates or tends to indicate the defendant should be sentenced to life imprisonment without parole instead of death, ” and includes, but is not limited to, such factors as (a) whether the Petitioner had no significant history of prior criminal activity, (b) whether the Petitioner was under the influence of extreme mental or emotional disturbance when he committed capital murder, (c) whether the victim was a participant in the petitioner's criminal conduct or consented to the act, (d) whether the Petitioner was an accomplice in the capital offense committed by another person and his participation was relatively minor, (e) whether the Petitioner acted under extreme duress or under substantial domination of another person, (f) whether the capacity of the Petitioner to appreciate the criminality of his conduct and to conform his conduct to the requirements of law was substantially impaired, and (g) any aspect of the Petitioner's character or record and any of the circumstances of the offense the Petitioner offered as a basis for a sentence of life imprisonment without parole instead of death, including the Petitioner's prior kindness and good works toward others which indicate a possibility of redemption and rehabilitation, the love and caring shown towards Petitioner by his family and friends, and that Petitioner appears to function well in various kinds of penal institutions, indicating a probability that Petitioner can be integrated into long-term prison life without significant difficulty, (14) since his arrest, Petitioner has shown no tendency towards violence against others, (15) the burden is on the prosecution to disprove the existence of a mitigating circumstance offered by the Petitioner by a preponderance of the evidence, (16) only an aggravating circumstance must be proven beyond a reasonable doubt, (17) the jury's deliberations should be based upon the evidence and must avoid the influence of passion, prejudice, or any other arbitrary factor, (18) weighing aggravating and mitigating factors is not a mechanistic process - different circumstances may be given different weights or values in determining the sentence in a case, (19) in order to recommend a punishment of death, at least ten jurors must vote for death - any number less than ten cannot recommend death, (20) in order to recommend a sentence of life without parole, at least seven jurors must vote for that sentence, (21) the jurors should hear and consider the views of their fellow jurors and carefully weigh, sift, and consider the evidence, realizing that a human life is at stake, and bring to bear their best judgment on the sole issue before the jury.[29]

         The jury subsequently sent out a note requesting additional instructions on the definition of mitigating circumstances.[30] From 5:30 to 5:36 p.m. the same date, the jury returned to the courtroom; the trial judge repeated his earlier instructions regarding the definition of mitigating circumstances and added, at the request of Petitioner's counsel, additional examples of mitigating circumstances offered by the defense, including Petitioner's good work record, poor family up-bringing, cooperation with police officers, emotional state at the time of the offense, and being under the influence of alcohol or drugs.[31] At 5:55 p.m. the same date, the jury returned its sentencing recommendation, recommending by a vote of eleven to one that the punishment be fixed at death.[32]

         4. Sentencing Hearing and Trial Court Findings

         On November 16, 1995, the trial judge held the sentencing hearing. Petitioner's trial counsel made objections to the pre-sentence report.[33] Petitioner's court-appointed mitigation expert argued in favor of a sentence of life without parole, calling the court's attention to the trial testimony of Petitioner and Dr. Renfro and emphasized that (1) Petitioner had displayed poor judgment but had not intended to kill Mrs. Liveoak, (2) Petitioner was suffering from the pernicious effects of crack cocaine addiction at the time of his offense, (3) scientific evidence and media accounts suggested the “euphoric feeling is so intense that crack cocaine users quickly develop a habit on the drug that is almost impossible to overcome, ” (4) Petitioner was so dominated by Carolyn “Polly” Yaw that he took the blame for her, (5) Petitioner was contrite and cooperative with law enforcement after his arrest, (6) Petitioner was remorseful, (7) killing Petitioner will not bring back Mrs. Liveoak, and (8) a sentence of life without parole is worse than death.[34]

         Petitioner's trial counsel argued that (1) Petitioner had great remorse for what he had done and had accepted responsibility for it, (2) some good could come out of Petitioner's life if he were permitted to live, (3) Petitioner experienced an extremely difficult childhood, (4) something about Petitioner's childhood “prevented him from developing the sense of responsibility that we are supposed to have, that sense of responsibility that tells us to follow the rules, to obey the law, to respect the dignity of others, and to avoid injuring others by our own selfish desires, ” (5) Petitioner's desire for crack overwhelmed his judgment, (6) Petitioner's actions were not those of a rational human being, and (7) life without parole was the appropriate sentence.[35]Petitioner then addressed the court and stated that (1) he was deeply sorry for his offense and had never meant for it to happen, (2) since the time he and Mrs. Liveoak prayed for his crack habit, he had not done it, (3) he wanted to apologize to her family, and (4) with the court's permission, he would like the opportunity to tell others about the harmful effects of crack cocaine, specifically what this “destroying drug” had done to him and his family.[36]

         The trial court imposed sentences of ten years on counts three through seventeen of the indictment.[37] On the capital murder counts, the trial court imposed a sentence of death by electrocution.[38] In its sentencing order, the trial court found that (1) Petitioner “never did a thing to rescue Mrs. Liveoak” despite having multiple opportunities to do so, (2) Mrs. Liveoak apparently did not die immediately but had a number of bruises and cuts on her hands consistent with attempts by her to free herself, (3) Petitioner let Mrs. Liveoak die in the trunk of her car while he and Yaw went to a crack house to purchase crack with money they obtained through the use of Mrs. Liveoak's credit card, (4) the following day, Petitioner sarcastically told Dennis Bowen that he “hoped the old lady would die, ” (5) Petitioner knew from the earlier abduction of Mr. Portwood that he could cause the death of someone by leaving her in the trunk of a car, (6) “the inference can clearly be drawn that he left Mrs. Liveoak in the trunk of the car to prevent subsequent identification, ” (7) Petitioner's intent to kill was also shown through his testimony at trial, specifically when, in response to questions about why he placed Mrs. Liveoak in the trunk of her car, Petitioner emphasized he was concerned about getting caught, (8) the jury concluded beyond a reasonable doubt that Petitioner committed his capital offense while engaged in the commission or attempted commission, or as an accomplice in the commission or attempted commission, or while in flight after the commission or attempted commission, of kidnaping and robbery, (9) the prosecution proved beyond a reasonable doubt that Petitioner was previously convicted of another felony involving the use or threatened use of violence against another person, (10) the prosecution proved beyond a reasonable doubt that Petitioner's capital offense was especially heinous, atrocious, or cruel, specifically by proving Mrs. Liveoak suffered pre-mortem injuries suffering both physically and psychologically after being left in the trunk of an automobile on a summer afternoon, i.e., “entombed in the trunk of her car, ” after Petitioner cruelly gave her false hope she would be rescued, (11) Petitioner failed to present sufficient evidence to establish either (a) he had no significant history of prior criminal activity, (b) he committed his capital offense while under the influence of extreme mental or emotional disturbance (i.e., while Petitioner presented evidence showing he was craving crack cocaine, he failed to present evidence showing he was under the influence of crack at the time he committed his capital offense), (c) he committed his offense as a mere accomplice, (d) he acted under extreme duress or under the substantial domination of another person, (e) his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired, or (f) his age at the time of the offense (i.e., thirty) was a mitigating circumstance, (12) Petitioner did present evidence supporting a number of non-statutory mitigating circumstances but the trial court did not give great weight to any of these factors, specifically evidence showing (a) Petitioner was remorseful for his conduct, (b) Petitioner's post-arrest confession and cooperation with investigating officers, (c) Petitioner came from a poor family and did not have adequate adult role models or morals instilled in him (the court found there was no evidence Petitioner turned to a life of crime because of his upbringing in light of the absence of a criminal record for his sister who grew up in the same household), (d) Petitioner's good work record, (e) Petitioner was a good husband to his first wife, (f) Petitioner's prior kindness and good work toward others, (g) the love and caring shown Petitioner by his family and friends, (h) Petitioner's record of functioning well in penal institutions, and (i) Petitioner's record of nonviolence since his arrest, and finally, (13) after considering the jury's recommendation and weighing the aggravating and mitigating circumstances, Petitioner's sentence should be fixed at death.[39]

         E. Direct Appeal

         Petitioner appealed his conviction and sentence, presenting nine claims in his appellant's brief.[40] The Alabama Court of Criminal Appeals affirmed Petitioner's conviction and sentence in an opinion issued March 21, 1997, rejecting on the merits all of Petitioner's grounds for appellate review. Dallas v. State, 711 So.2d 1101 (Ala.Crim.App.1997). Petitioner next filed a petition for certiorari with the Alabama Supreme Court.[41] The Alabama Supreme Court affirmed Petitioner's conviction and sentence in an opinion issued March 13, 1998, finding no reversible error. Ex parte Dallas, 711 So.2d 1114 (Ala. 1998). The United States Supreme Court denied Petitioner's petition for writ of certiorari on October 5, 1998. Dallas v. Alabama, 525 U.S. 860 (1998).[42]

         F. State Habeas Corpus Proceeding

         Petitioner filed a sworn, pro se state habeas corpus petition, i.e., a petition pursuant to Rule 32 of the Alabama Rules of Criminal Procedure.[43] The state trial court summarily dismissed several of Petitioner's claims in an Order issued October 28, 1999.[44] On June 21, 2001, the state trial court held an evidentiary hearing (during which Petitioner was represented by counsel and Petitioner participated telephonically) and later received deposition testimony from additional witnesses.[45]The same trial court judge who presided over Petitioner's capital murder trial issued an Order on September 25, 2001, denying Petitioner's Rule 32 petition.[46]

         Petitioner filed a motion to alter or vacate the judgment on October 25, 2001.[47] The state trial court denied Petitioner's motion. Petitioner appealed on November 28, 2001, [48] but the Alabama Court of Criminal Appeals dismissed his appeal on December 7, 2001, as untimely.[49]

         Petitioner filed motions seeking leave to file an out-of-time appeal[50] and requesting a finding that the filing of his motion to alter, vacate, and amend judgment tolled the applicable time for filing a notice of appeal.[51] The state trial court granted the latter of these motions in an Order issued February 12, 2002.[52] Petitioner filed a second Notice of Appeal on February 15, 2002.[53] In an Order issued March 1, 2002, the Alabama Court of Criminal Appeals struck Petitioner's second appeal as untimely.[54] Petitioner filed a petition for writ of certiorari with the Alabama Supreme Court, [55] which that court dismissed without opinion on June 28, 2002, for failure to comply with Rule 39(c)(1) of the Alabama Rules of Appellate Procedure.[56]

         G. Proceedings in Federal Court

         Petitioner filed his original federal habeas corpus petition on July 9, 2002, asserting seventeen categories of claims for relief (Doc. # 1).[57] Petitioner filed a brief on the merits in support of his claims for relief on June 7, 2007, arguing that he was entitled to de novo review on all of his claims for relief (Doc. # 88). The same date, Petitioner also filed an appendix to his merits brief accompanied by more than two dozen new exhibits (mostly addressing his claim that his trial counsel failed to adequately investigate and present then-available mitigating evidence) and a motion to supplement the record (Doc. # 86-87). The court granted Petitioner's motion to supplement the record in an Order issued June 8, 2007 (Doc. # 89).

         Respondent filed a brief on August 14, 2007, responding to the merits of some, but not all, of Petitioner's claims for relief (Doc. # 92). Petitioner filed a response to Respondent's brief on September 28, 2007, arguing the ineffective assistance of Petitioner's state habeas counsel excused the Petitioner's procedural defaults on some of his claims for federal habeas corpus relief (Doc. # 95).

         On April 1 and May 5, 2009 (Doc. # 108-09), Petitioner filed a pair of motions to supplement the record along with numerous new affidavits and other documents in support of his claims. The court will grant those motions.

         In an Order issued January 12, 2012, the Court addressed the merits of several of Petitioner's claims on which the parties agreed there was no procedural default (Doc. # 120). More specifically, the Order of January 12, 2012, applied the deferential standard of review mandated by the AEDPA and rejected on the merits Petitioner's claims that (1) the state trial court erred in overruling the defense's objections to the guilt-innocence phase jury instructions (a) permitting the jury to draw the inference that a person intends the natural consequences of an intentional act and (b) commenting on the impeachment and credibility of the Petitioner's trial testimony, (2) the state trial court erred in denying the defense's requested jury instructions on the lesser-included offenses of reckless murder and criminal negligent homicide, (3) the state trial court erred in denying the defense's motions for continuance, (4) his lead trial counsel suffered from an actual conflict of interest, (5) the state trial court erroneously permitted the jury to consider as an aggravating factor at the punishment phase of trial whether Petitioner's capital offense was especially heinous, atrocious, or cruel, (6) there was insufficient evidence to show the Petitioner intended to kill Mrs. Liveoak, (7) the state trial court erred in failing to grant the defense's challenge for cause to a prospective juror, (8) the state trial court improperly considered victim-impact evidence, and (9) the prosecution used its peremptory strikes in a racially discriminatory manner.[58]

         Petitioner filed a motion for reconsideration on May 25, 2012 (Doc. # 121), arguing for the first time in a coherent manner that (1) the prosecution's stated reasons for striking jurors 29 and 31 were pre-textual and (2) his lead trial counsel's simultaneous representation of Petitioner in his capital murder case and the Alabama Department of Mental Health and Mental Retardation in an unrelated civil lawsuit constituted a conflict of interest. The same date, Petitioner filed another motion to supplement the record to include a copy of the motion to withdraw filed in the state trial court by Petitioner's lead trial counsel in February, 1995 (Doc. #122). The court granted this motion to supplement in an Order issued September 30, 2016 (Doc. # 135). Respondent filed a brief in opposition to reconsideration on June 6, 2012 (Doc. # 124). Petitioner filed a reply to Respondent's brief in opposition to reconsideration on June 6, 2012 (Doc. # 125).

         The Clerk reassigned this case to the undersigned judge's docket on July 19, 2016 (Doc. # 129). In an Order issued August 9, 2016, the court directed the parties to file supplemental briefing (Doc. #130).

         On October 3, 2016, Petitioner filed (1) a supplemental brief addressing respondent's assertions that some of Petitioner's claims were untimely filed and procedurally defaulted (Doc. # 136) and (2) additional pleadings accompanied by twenty-three new exhibits (Doc. # 137-39).

         On November 17, 2016, Respondent filed a supplemental brief (1) re-urging the court to dismiss Petitioner's federal habeas corpus petition as untimely filed and to deny relief on fifty-three of Petitioner's claims as procedurally defaulted and (2) argued Petitioner's procedurally defaulted claims were not subject to review on the merits under the holding in Martinez v. Ryan (Doc. # 144).

         Petitioner filed a supplemental brief on timeliness and procedural default on December 1, 2016 (Doc. # 145).

         Petitioner filed a motion on January 11, 2017, requesting leave to amend his original federal habeas corpus petition to include a claim that Petitioner's death sentence is inconsistent with the Supreme Court's holding in Hurst v. Florida, 135 S.Ct. 616 (2016) (Doc. # 146).

         The briefing in this cause on the subjects of procedural default and timeliness has been extensive.[59] Despite rejection of Respondent's motion to dismiss and the passage of considerable time, Respondent has yet to address the merits of many of Petitioner's substantive claims.[60] The record currently before the court is not bereft of briefing and analysis from Respondent's perspective on the Petitioner's multi- faceted ineffective assistance claim. Respondent filed a pair of pleadings in response to Petitioner's expansive ineffective assistance claims presented in Petitioner's state habeas corpus proceeding.[61] The state habeas trial court addressed the merits (or lack thereof) of Petitioner's ineffective assistance complaints in a thorough Order containing numerous findings of fact and conclusions of law fully supported by the record before that court.[62] Having considered the parties' extensive briefing on the issue of procedural default, the court will address the merits of Petitioner's ineffective assistance claims de novo regardless of whether those claims are procedurally defaulted.

         II. PETITIONER'S MOTION FOR RECONSIDERATION

         In his motion filed May 25, 2012 (Doc. # 121), Petitioner urges reconsideration of the court's denial of federal habeas corpus relief on (1) Petitioner's conflict of interest claim and (2) Petitioner's complaint that two identified members of Petitioner's jury venire (numbers 29 & 31) were improperly stricken by the prosecution during jury selection in violation of the equal protection principle announced in Batson v. Kentucky, 476 U.S. 79 (1986). Having considered Petitioner's motion for reconsideration and briefs in support and opposition to same, the court will deny Petitioner's motion for reconsideration.

         In Batson v. Kentucky, the United States Supreme Court extended the equal protection principle barring the purposeful exclusion of Blacks from criminal jury service to the prosecution's use of peremptory challenges during petit jury selection. See Batson v. Kentucky, 476 U.S. at 89 (“the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant.”). Dallas is white. Batson provides a three-step process for a trial court to use in adjudicating a claim that a peremptory challenge was based on race. First, the defendant must make out a prima facie case of discriminatory jury selection by the totality of the relevant facts concerning a prosecutor's conduct during the defendant's own trial. Second, once the defendant makes the prima facie showing, the burden shifts to the State to come forward with a race-neutral explanation for challenging jurors within the arguably targeted class. Finally, the trial court must determine if the defendant established purposeful discrimination by the prosecution. Snyder v. Louisiana, 552 U.S. 472, 476-77 (2008); Miller-El v. Dretke, 545 U.S. 231, 239 (2005); Batson v. Kentucky, 476 U.S. at 94-98.

         With regard to the first step, i.e., establishing a prima facie case, the Supreme Court has described that process as follows:

[A] defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.”

Batson v. Kentucky, 476 U.S. at 96 (citations omitted).

         With regard to the second step, i.e., the prosecution's burden of presenting a neutral reason for the peremptory challenge, the Supreme Court has noted that, while there are any number of bases on which a prosecutor reasonably might believe it is desirable to strike a venire member who is not excused for cause, the prosecutor must give a clear and reasonably specific explanation of his legitimate reasons for exercising the peremptory challenge. Miller-El v. Dretke, 545 U.S. at 239; Batson v. Kentucky, 476 U.S. at 98 n.20.

It is true that peremptories are often the subjects of instinct, and it can sometimes be hard to say what the reason is. But when illegitimate grounds like race are in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives. A Batson challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.

Miller-El v. Dretke, 545 U.S. at 252.

         In the third and final step in the Batson process, the Supreme Court has emphasized the critical role of the trial court in evaluating the prosecutor's credibility. Snyder v. Louisiana, 552 U.S. at 477.

[T]he critical question in determining whether a prisoner has proved purposeful discrimination at step three is the persuasiveness of the prosecutor's justification for his peremptory strike. At this stage, “implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.” In that instance the issue comes down to whether the trial court finds the prosecutor's race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.

Miller-El v. Cockrell, 537 U.S. 322, 338-339 (2003).

         Consideration of a Batson objection, or the review of a ruling claimed to be Batson error, requires that all of the circumstances that bear upon the issue of racial animosity be consulted and considered. Snyder v. Louisiana, 552 U.S. at 478. In several recent opinions, the Supreme Court has examined a wide array of factors in resolving Batson claims. See, e.g., Snyder v. Louisiana, 552 U.S. at 480-85 (holding a prosecutor's proffer of a pretextual explanation regarding the stricken venire member's scheduling conflicts, which were significantly less imposing than those of a white venire member whom the prosecutor accepted, permitted an inference of discriminatory intent); Miller-El v. Dretke, 545 U.S. at 240-66 (citing the prosecutor's differential questioning of black and white venire members throughout the entire voir dire, the prosecution's “remarkable” use of ten of its fourteen peremptories to strike ten of the eleven black venire members who were not removed for cause or by agreement, the prosecutor's failure to strike white venire members who offered voir dire testimony similar to black venire members whom the prosecutor did strike, and the prosecution's selective requests for a jury shuffle only when black venire members were near the front of the list as evidence warranting a finding of purposeful discrimination).

         As correctly noted by Petitioner, the state trial court implicitly determined Petitioner satisfied the initial prong of Batson analysis. The state trial court directed the prosecution to furnish reasons for each of its peremptory strikes exercised during jury selection. As explained above, such a directive is necessary only if a criminal defendant first makes a prima facie case of discriminatory jury selection by the totality of the relevant facts. The prosecution then furnished the state trial court with its reasons for each of its peremptory strikes. The state trial court considered these reasons and the argument furnished by Petitioner's trial counsel and ultimately denied all of Petitioner's challenges to the prosecution's peremptory strikes. This ruling constituted an implicit factual determination that the prosecution's proffered race-neutral reasons for all of its peremptory strikes were credible. Hightower v. Terry, 459 F.3d 1067, 1072 n.9 (11th Cir. 2006), cert. denied, 550 U.S. 952 (2007).

         The fundamental analytical problem with Petitioner's Batson claims is Petitioner failed to furnish the state appellate courts and has failed to furnish this court with copies of the juror questionnaires filled out by all the members of Petitioner's jury venire. See Doc. # 120, at p. 51 n.3 (noting the juror questionnaires were not included in the state appellate record or the state post-conviction record and are not before this court for consideration).[63] This failure renders it virtually impossible for this court to second-guess the implicit credibility findings made by the state trial court when it rejected Petitioner's Batson claims. The juror questionnaires furnish the context within which the credibility of a prosecutor's proffered race-neutral reasons for exercising a peremptory challenge are evaluated. See Jasper v. Thaler, 765 F.Supp.2d 783, 816 n.62 (W.D. Tex. 2011) (discussing the analytical hurdles to evaluating a Batson claim without access to the juror questionnaires completed by the venire members whom the petitioner claimed had been improperly stricken by the prosecution), aff'd, 466 F. App'x 429 (5th Cir. 2012), cert. denied, 133 S.Ct. 788 (2012). Absent review of the juror questionnaires executed by all members of the jury venire prior to Petitioner's trial, this court, like the state appellate courts, is not in a proper position to re-examine the implicit credibility findings made by the state trial court on Petitioner's Batson claims.

         The complete absence of any of the juror questionnaires from the state court record in Petitioner's direct appeal is especially problematic given the extensive reliance on the juror questionnaire answers made on the record by counsel for both parties during individual voir dire examination of Petitioner's potential jurors. Counsel for both the prosecution and defense spent considerable time and effort during individual voir dire asking jury venire members about their answers to the juror questionnaires, which included at least 45 questions.[64] The following discussion is hampered by the absence of the questionnaires from the record. The prosecution accurately described a number of the jury venire members against whom it used peremptory strikes as having demonstrated great reluctance to vote in favor of the death penalty (or to sit in judgment of another human being). The prosecution also accurately identified another group of the jury venire members against whom it utilized peremptory strikes as having serious criminal records or close relatives with serious criminal records. There was nothing objectively unreasonable with the state trial court's acceptance of those proffered race-neutral reasons for the prosecution's peremptory strikes of jury venire members 20, 58, 73, 91, 95, 113, each of whom expressed serious reservations about his or her ability to vote in favor of the death penalty.[65] See Garcia v. Stephens, 793 F.3d 513, 527 (5th Cir. 2015) (prospective juror's opposition to the death penalty a legitimate and racially neutral reason for prosecution's peremptory strike), cert. denied, 136 S.Ct. 897 (2016). Likewise, the state trial court reasonably accepted as race-neutral the prosecution's explanations that jury venire members 26, 29, 45, and 67 had close relatives with serious criminal convictions.[66]

         Furthermore, Petitioner's arguments in support of his motion for reconsideration of the denial of his Batson claims regarding jury venire members 29 and 31 are unpersuasive. The prosecution stated on the record that its strike of juror 31 was based upon that venire member's disinterested demeanor throughout voir dire, including his arms crossed across his chest and the fact he rolled his eyes at several points.[67] Petitioner criticizes the state trial court's failure to make express factual findings regarding the demeanor of juror 31. Significantly, however, Petitioner's trial counsel did not challenge the factual accuracy of those descriptions of the venire member's demeanor given by the prosecutor.[68] Instead, Petitioner's trial counsel merely pointed out juror 31 was a teacher and the prosecution had failed to strike other teachers on the jury venire.[69] The prosecution responded that it struck venire member 31 based upon his disinterested demeanor and not because of his occupation.[70] Thus, resolving the Batson claim surrounding the striking of juror 31 did not require the state trial court to evaluate conflicting descriptions of that venire member's demeanor.

         The prosecution stated on the record that its strike of juror 29 was based upon the fact he had a reading disorder that prevented him from completing his juror questionnaire and he had a cousin who had been convicted of selling drugs.[71]Petitioner's trial counsel did not challenge the prosecution's assertion that juror 29 had a reading problem.[72] In fact, during individual voir dire, Petitioner's trial counsel pointed out this venire member had failed to complete a few answers on his questionnaire and this venire member candidly admitted he had a reading problem.[73]Instead, Petitioner's trial counsel pointed out that another member of the jury venire had a relative who had a drug-related criminal conviction.[74] The prosecution responded that (1) the other venire member identified by Petitioner's counsel had a wife who had been convicted of an offense while on diet pills and (2) he considered that offense different from the drug-trafficking offense committed by juror 29's cousin.[75] Thus, once more, there did not appear to be any genuine issue of material fact regarding juror 29's reading disability or the fact this venire member had a relative with a conviction for a drug-related offense.

         The state trial court had access to the juror questionnaires and the opportunity to examine first-hand the demeanor of the jury venire members during their individual voir dire examination. When viewed under the AEDPA's deferential standard, the state trial court's implied credibility findings regarding the race-neutral reasons proffered by the prosecution for striking venire members 29 and 31 were objectively reasonable. “A trial court is best situated to evaluate both the words and the demeanor of jurors who are peremptorily challenged, as well as the credibility of the prosecutor who exercises those strikes.” Davis v. Ayala, 135 S.Ct. 2187, 2201 (2015). Given Petitioner's failure to present the juror questionnaires to the state appellate courts, which reviewed and rejected Petitioner's Batson claims on the merits in the course of his direct appeal, the state appellate courts' rejection on the merits of Petitioner's Batson claims were objectively reasonable under clearly established federal law and the evidence presented to those appellate courts. This court is not in a position to evaluate the propriety of the trial court's implicit credibility findings on Petitioner's Batson claims under the AEDPA's deferential standard without access to the same information that was before the state trial court when it made its implicit credibility findings. See Davis v. Ayala, 135 S.Ct. at 2201 (appellate judges cannot on the basis of a cold record easily second-guess a trial judge's decisions about the likely motivation of a prosecutor). Even if reasonable minds might disagree about the prosecutor's credibility, on habeas review that does not suffice to supersede the trial court's credibility determination. Id. For the foregoing reasons, Petitioner's motion for reconsideration of the denial of his Batson claim is denied.

         Petitioner originally presented his conflict of interest/constructive ineffective assistance claim to the state appellate courts in his direct appeal as his seventh claim in his appellant's brief.[76] The Alabama Court of Criminal Appeals denied that claim on the merits. Dallas v. State, 711 So.2d at 1111. This Court applied the AEDPA's deferential standard of review in denying Petitioner's analogous claim in this federal habeas corpus proceeding (Doc. #120, at pp. 31-32). In his motion for reconsideration, Petitioner relies upon new factual allegations, new affidavits, [77] and other new documentation purportedly supporting his conflict of interest claim which were not presented to the Alabama state appellate courts during Petitioner's direct appeal. Under the Supreme Court's holding in Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011) (“We now hold that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.”), this Court may not consider Petitioner's new evidence in the course of reviewing Petitioner's conflict of interest claim under the AEDPA. For the reasons discussed in the Order issued January 12, 2012 (Doc. # 120), Petitioner's motion for reconsideration of the denial of his conflict of interest claim is denied.

         III. MOTION FOR LEAVE TO AMEND/SUPPLEMENT PETITION

         Petitioner has filed a motion for leave to amend his operative pleading but furnished as an attachment not a proposed amended federal habeas corpus petition but, rather, what amounts to a supplemental federal habeas corpus petition adding a single new claim to those already before this court.[78] The Supreme Court's decision in Hurst v. Florida, 136 S.Ct. 616 (2016), was handed down January 12, 2016. Petitioner's motion for leave to amend his petition to include a new claim based on the holding in Hurst, which overruled several prior Supreme Court decisions, is timely. Petitioner's motion for leave to amend requests permission to present an issue of significant constitutional gravity bearing upon the fundamental fairness of Petitioner's state court trial. Moreover, Petitioner's proposed “amendment” of his petition to include a claim premised upon the Supreme Court's holding in Hurst does little more than expand and update the same arguments Petitioner raised as his final claim for relief in his original petition. The Court will permit Petitioner to amend his final claim in his original petition to include his legal arguments based upon Hurst and will address those arguments in the context of his final claim for relief.

         IV. HURST, RING, & APPRENDI CLAIM

         A. The Claim

         In his seventeenth and final claim in his original petition (Doc. # 1, at pp. 77-81) and his “amended petition” submitted January 11, 2017 (Doc. # 146-1), Petitioner argues his sentence violates the Eighth Amendment because under the holdings in Hurst v. Florida, 136 S.Ct. 616 (2016), Ring v. Arizona, 536 U.S. 584 (2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000), only a jury may make the factual findings necessary to impose a sentence of death.

         B. The Constitutional Standard

         Until recently, the Supreme Court's opinions addressing capital punishment offered a wide array of ambiguous analytical approaches to resolving Eighth Amendment claims. For instance, in Trop v. Dulles, 356 U.S. 86 (1958), the Supreme Court addressed the issue of a former soldier sanctioned for desertion with loss of his citizenship. In the course of an opinion that reflected his own views on the subject, Chief Justice Earl Warren wrote as follows:

The exact scope of the constitutional phrase ‘cruel and unusual' has not been detailed by this Court. But the basic policy reflected in these words is firmly established in the Anglo-American tradition of criminal justice. The phrase in our Constitution was taken directly from the English Declaration of Rights of 1688, and the principle it represents can be traced back to the Magna Carta. The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards. Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect. This Court has had little occasion to give precise content to the Eighth Amendment, and, in an enlightened democracy such as ours, this is not surprising. But when the Court was confronted with a punishment of 12 years in irons at hard and painful labor imposed for the crime of falsifying public records, it did not hesitate to declare that the penalty was cruel in its excessiveness and unusual in its character. Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793');">54 L.Ed. 793 [1910]. The Court recognized in that case that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.

Trop v. Dulles, 356 U.S. at 99-101, 78 S.Ct. at 597-98 (Footnotes omitted).

         Though often cited in subsequent Supreme Court opinions, Chief Judge Warren's “evolving standards of decency” standard proved to be difficult to apply consistently. For example, in Furman v. Georgia, 408 U.S. 238 (1972), a bare majority of the Supreme Court struck down capital sentencing schemes in thirty-nine States but failed to reach any degree of consensus in terms of an analytical approach to the Eighth Amendment. The result was nine separate opinions issued from the Supreme Court in Furman, each reflecting a different analytical approach to the Eighth Amendment claims presented therein.

         The situation changed little when, four years later, a series of plurality opinions from the Supreme Court upheld the new capital sentencing schemes adopted by Georgia, Texas, and Florida in response to Furman. See Gregg v. Georgia, 428 U.S. 153, 183 (1976) (plurality opinion issued by Justice Stewart for himself and Justices Powell and Stevens with Chief Justice Burger and Justices White and Rehnquist concurring separately) (the death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders); Gregg v. Georgia, 428 U.S. at 195 (“Where the sentencing authority is required to specify the factors it relied upon in reaching its decision, the further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously or in a freakish manner.”); Jurek v. Texas, 428 U.S. 262, 268 (1976) (same plurality and concurrences) (holding imposition of the death penalty does not per se violate the Eighth Amendment's proscription of “cruel and unusual punishment”); Proffitt v. Florida, 428 U.S. 242, 252 (1976) (same plurality and concurrences) (holding the Supreme Court “has never suggested that jury sentencing is constitutionally required”). The same date, the Supreme Court struck down North Carolina's adoption of a mandatory death penalty scheme for all persons convicted of first-degree murder and Louisiana's adoption of mandatory death sentences for persons convicted of five categories of capital murder. See Woodson v. North Carolina, 428 U.S. 280, 301-03 (1976) (plurality opinion by Justice Stewart for himself and Justices Powell and Stevens with Justices Brennan and Marshall concurring separately) (holding North Carolina's mandatory death sentence for first- degree murder violated the Eighth and Fourteenth Amendments because mandatory death sentences are inconsistent with “the evolving standards of decency that mark the progress of a maturing society” and fail to “allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before imposition of a sentence of death”); Roberts v. Louisiana, 428 U.S. 325, 334 (1976) (same plurality and concurrences as in Woodson) (“The constitutional vice of mandatory death statutes lack of focus on the circumstances of the particular offense and the character and propensities of the offender is not resolved by Louisiana's limitation of first-degree murder to various categories of killings.”).

         A year later, in Coker v. Georgia, 433 U.S. 584, 592 (1977), a Supreme Court plurality (Justice White joined by Justices Stewart, Blackmun, and Stevens, joined separately by Justices Brennan and Marshall with Justice Powell concurring in part and dissenting in part) held “a sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment.”

         In Godfrey v. Georgia, 446 U.S. 420 (1980), Justice Stewart wrote for himself and three other Justices with Justices Brennan and Marshall concurring separately (i.e., the same plurality and concurrences as in Coker v. Georgia) to strike down as unconstitutionally vague Georgia's aggravating factor that a capital offense was “outrageously or wantonly vile, horrible and inhuman.” Relying upon Justice White's concurring opinion in Furman, the Supreme Court held (1) a capital sentencing scheme must provide a meaningful basis for distinguishing the few cases in which the death penalty is imposed from the many cases in which it is not and (2) the Georgia Supreme Court's construction of the aggravating factor in question failed to adequately channel the jury's discretion because a person of ordinary sensibility could fairly characterize almost every murder in such terms. Godfrey v. Georgia, 446 U.S. at 427-29. The Supreme Court concluded the state courts had not limited the meaning of the aggravating factor in question in a manner which avoided the “standardless and unchanneled imposition of death sentences.” Id., 446 U.S. at 430-32.

         Of great significance to Petitioner's case is the Supreme Court's opinion in Enmund v. Florida, 458 U.S. 782 (1982), which arose from the same jurisdiction as Hurst. In Enmund, the Supreme Court (Justice White writing for himself and three other Justices with Justice Brennan joining but concurring separately) struck down a sentence of death for a criminal defendant who was convicted as an accomplice to a felony murder. The Florida trial court instructed Enmund's jury that “the killing of a human being while engaged in the perpetuation of or in the attempt to perpetuate the offense of robbery is murder in the first degree even though there is no premeditated design or intent to kill.” Enmund v. Florida, 458 U.S. at 784-85. The Florida Supreme Court later determined there was no evidence Enmund (1) was present at the time and place of the murders, (2) killed anyone, (3) intended to kill anyone, or (4) anticipated that lethal force would or might be used during the robbery. Id., 458 U.S. at 788. After carefully reviewing the nation's capital murder statutes and the practices of juries with regard to the imposition of a death sentence for felony murder absent a showing of intent to kill or reckless indifference to human life, the Supreme Court concluded the Eighth Amendment forbids the imposition of the death penalty on one such as Enmund “who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.” Id., 458 U.S. at 789-97. The Supreme Court emphasized that the two principal social purposes for the death penalty, i.e., retribution and deterrence, are not furthered by the imposition of a death penalty on a robber who did not take a human life, attempt to kill, or intend to kill. Id., 458 U.S. at 797-801.

         In Tison v. Arizona, 481 U.S. 137, 152-58 (1987), a majority of the Supreme Court clarified its holding in Enmund, holding that the sons of a convicted murderer who smuggled an arsenal of firearms into a state prison and actively assisted their father in an armed prison break and the subsequent kidnaping, robbery, and murder of a family (including a two-year-old child) could be sentenced to death because their participation in the capital offense was major and their mental state was one of reckless indifference to the value of human life.[79] The Supreme Court took great pains to distinguish its holding in Enmund, pointing out Enmund had been a minor actor in the armed robbery, was not physically present at the time of the murders, and did not intend to kill, attempt to kill, or kill. Tison v. Arizona, 481 U.S. at 149-50. The Supreme Court held the evidence showed (1) the Tison brothers' participation in their capital offense was “anything but minor” and (2) the brothers both subjectively appreciated their actions were likely to result in the taking of innocent life. Id., 481 U.S. at 152. The Supreme Court ultimately held “the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes the natural, though also not inevitable, lethal result.” Id., 481 U.S. at 157-58. The Supreme Court reversed the Arizona Supreme Court's opinion declaring that Enmund required a showing of intent to kill. See Tison v. Arizona, 481 U.S. at 158 (“major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.”).

         In Maynard v. Cartwright, 486 U.S. 356 (1988), the Supreme Court unanimously struck down an Oklahoma death sentence based upon a factual determination that the capital offense was “especially heinous, atrocious, or cruel.” The Court relied upon Justice Stewart's and Justice White's concurring opinions in Furman and reasoned that “[s]ince Furman, our cases have insisted that the channeling and limiting of the sentencer's discretion in imposing the death penalty is a fundamental constitutional requirement for sufficiently minimizing the risk of wholly arbitrary and capricious action, ” Maynard v. Cartwright, 486 U.S. at 362 (citing Gregg v. Georgia, 428 U.S. at 189, 206-07, 220-22). The Supreme Court noted that, at the time of the petitioner's trial, Oklahoma courts had not yet restricted the aggravating factor in question to those murders in which torture or serious physical abuse were present. Id., 486 U.S. at 365. The Supreme Court concluded that its holding in Godfrey controlled the outcome in Maynard because Oklahoma's courts had not limited the “especially heinous, atrocious, or cruel” aggravating factor any more effectively than had the Georgia court limited the term “outrageously or wantonly vile, horrible or inhuman.” Id., 486 U.S. at 363-64.

         The lack of Supreme Court consensus on an analytical approach to the Eighth Amendment continued in a case rejecting an “as applied” challenge to the Texas capital sentencing scheme. See Franklin v. Lynaugh, 487 U.S. 164, 172-73 (1988) (holding there is no constitutional right to have a capital sentencing jury consider “residual doubts” as to the defendant's guilt in an opinion by Justice White for himself, Chief Justice Burger, and Justices Scalia and Kennedy, with Justices O'Connor and Blackmun concurring separately).

         A degree of consensus did begin to appear within the Supreme Court early the following decade when five Justices finally agreed on a single standard for reviewing the adequacy of jury instructions in a capital sentencing proceeding:

We think the proper inquiry in such a case is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence. Although a defendant need not establish that the jury was more likely than not to have been impermissibly inhibited by the instruction, a capital sentencing proceeding is not inconsistent with the Eighth Amendment if there is only a possibility of such an inhibition. This “reasonable likelihood” standard, we think, better accommodates the concerns of finality and accuracy than does a standard which makes the inquiry dependent on how a single hypothetical “reasonable” juror could or might have interpreted the instruction. There is, of course, a strong policy in favor of accurate determination of the appropriate sentence in a capital case, but there is an equally strong policy against retrials years after the first trial where the claimed error amounts to no more than speculation. Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.

Boyde v. California, 494 U.S. 370, 380-381 (1990) (footnotes omitted).

         This baby-step forward toward analytical consensus quickly dissipated, however, in a series of opinions addressing the constitutionality of various state aggravating factors. For example in Shell v. Mississippi, 498 U.S. 1 (1990), in a terse per curiam opinion, the Supreme Court struck down as unconstitutionally vague a Mississippi trial court's jury instruction attempting to restrict the definition of the term “especially heinous, atrocious, or cruel” as used as an aggravating factor in that state's capital sentencing scheme. See Shell v. Mississippi, 498 U.S. at 1 (citing Maynard v. Cartwright, 486 U.S. 356 (1988)).

         In Arave v. Creech, 507 U.S. 463 (1993), the Supreme Court upheld as constitutional against a vagueness challenge Idaho's aggravating circumstance that the defendant “exhibited utter disregard for human life” based upon the Idaho Supreme Court's limiting construction of that term as referring to “acts or circumstances surrounding the crime which exhibit the highest, the utmost, callous disregard for human life, i.e., the cold-blooded, pitiless slayer.” Arave v. Creech, 507 U.S. at 467-68. “The terms ‘cold-blooded' and ‘pitiless' describe the defendant's state of mind: not his mens rea, but his attitude toward his conduct and his victim.” Id., 507 U.S. at 473. “The ‘utter disregard' factor refers not to the outrageousness of the acts constituting the murder, but to the defendant's lack of conscientious scruples against killing another human being.” Id., 507 U.S. at 478 (quoting State v. Fain, 116 Idaho 82, 99, 774 P.2d 252, 269, cert. denied, 493 U.S. 917 (1989)).

         True consensus on an overarching analytical approach to Eighth Amendment claims did not fully appear, however, until eight Supreme Court Justices agreed in Tuilaepa v. California, 512 U.S. 967 (1994), on the principle that the Eighth Amendment addresses two different, but related, aspects of capital sentencing: the eligibility decision and the selection decision. Tuilaepa, 512 U.S. at 971 (Justice Kennedy writing for himself, Chief Justice Rehnquist, and Justices O'Connor, Scalia, Souter, and Thomas, with Justices Stevens and Ginsburg concurring separately but not rejecting the analytical approach offered by Justice Kennedy). The Supreme Court's analysis of those two aspects of capital sentencing provided the first comprehensive system for analyzing Eighth Amendment claims that a clear majority of the Supreme Court had ever offered:

To be eligible for the death penalty, the defendant must be convicted of a crime for which the death penalty is a proportionate punishment. To render a defendant eligible for the death penalty in a homicide case, we have indicated that the trier of fact must convict the defendant of murder and find one "aggravating circumstance" (or its equivalent) at either the guilt or penalty phase. The aggravating circumstance may be contained in the definition of the crime or in a separate sentencing factor (or both). As we have explained, the aggravating circumstance must meet two requirements. First, the circumstance may not apply to every defendant convicted of a murder; it must apply only to a subclass of defendants convicted of murder. Second, the aggravating circumstance may not be unconstitutionally vague. * * *
We have imposed a separate requirement for the selection decision, where the sentencer determines whether a defendant eligible for the death penalty should in fact receive that sentence. "What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime." That requirement is met when the jury can consider relevant mitigating evidence of the character and record of the defendant and the circumstances of the crime.

Tuilaepa, 512 U.S. at 971-73 (citations omitted).

         In Tuilaepa, the Supreme Court clearly declared its view that States may adopt capital sentencing procedures which rely upon the jury, in its sound judgment, to exercise wide discretion. Tuilaepa, 512 U.S. at 974. The Supreme Court also concluded, at the selection stage, States are not confined to submitting to the jury specific propositional questions but, rather, may direct the jury to consider a wide range of broadly-defined factors, such as “the circumstances of the crime, ” “the defendant's prior criminal record” and “all facts and circumstances presented in extenuation, mitigation, and aggravation of punishment.” Tuilaepa, 512 U.S. at 978.

         In Loving v. United States, 517 U.S. 748 (1996), the Supreme Court described the first part of the Tuilaepa analysis, i.e., the eligibility decision, as follows:

The Eighth Amendment requires, among other things, that “a capital sentencing scheme must ‘genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.'” Some schemes accomplish that narrowing by requiring that the sentencer find at least one aggravating circumstance. The narrowing may also be achieved, however, in the definition of the capital offense, in which circumstance the requirement that the sentencer “find the existence of the aggravating circumstance in addition is no part of the constitutionally required narrowing process.”

Loving, 517 U.S. at 755 (citations omitted).

         The Supreme Court subsequently elaborated on the distinction between the narrowing function or “eligibility decision” and the “selection phase” of a capital sentencing proceeding in Buchanan v. Angelone, 522 U.S. 269 (1998):

Petitioner initially recognizes, as he must, that our cases have distinguished between two different aspects of the capital sentencing process, the eligibility phase and the selection phase. Tuilaepa v. California, 512 U.S. 967, 971, 114 S.Ct. 2630, 2634, 129 L.Ed.2d 750 (1994). In the eligibility phase, the jury narrows the class of defendants eligible for the death penalty, often through consideration of aggravating circumstances. Ibid. In the selection phase, the jury determines whether to impose a death sentence on an eligible defendant. Id., at 972, 114 S.Ct., at 2634-2635. Petitioner concedes that it is only the selection phase that is at stake in his case. He argues, however, that our decisions indicate that the jury at the selection phase must both have discretion to make an individualized determination and have that discretion limited and channeled. See, e.g., Gregg v. Georgia, 428 U.S. 153, 206-207, 96 S.Ct. 2909, 2940-2941, 49 L.Ed.2d 859 (1976). He further argues that the Eighth Amendment therefore requires the court to instruct the jury on its obligation and authority to consider mitigating evidence, and on particular mitigating factors deemed relevant by the State.
No such rule has ever been adopted by this Court. While petitioner appropriately recognizes the distinction between the eligibility and selection phases, he fails to distinguish the differing constitutional treatment we have accorded those two aspects of capital sentencing. It is in regard to the eligibility phase that we have stressed the need for channeling and limiting the jury's discretion to ensure that the death penalty is a proportionate punishment and therefore not arbitrary or capricious in its imposition. In contrast, in the selection phase, we have emphasized the need for a broad inquiry into all relevant mitigating evidence to allow an individualized determination. Tuilaepa, supra, at 971-973, 114 S.Ct., at 2634-2636; Romano v. Oklahoma, 512 U.S. 1, 6-7, 114 S.Ct. 2004, 2008-2009, 129 L.Ed.2d 1 (1994); McCleskey v. Kemp, 481 U.S. 279, 304-306, 107 S.Ct. 1756, 1773-1775, 95 L.Ed.2d 262 (1987); Stephens, supra, at 878-879, 103 S.Ct., at 2743-2744.
In the selection phase, our cases have established that the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence. Penry v. Lynaugh, 492 U.S. 302, 317-318, 109 S.Ct. 2934, 2946-2947, 106 L.Ed.2d 256 (1989); Eddings v. Oklahoma, 455 U.S. 104, 113-114, 102 S.Ct. 869, 876-877, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-2965, 57 L.Ed.2d 973 (1978). However, the state may shape and structure the jury's consideration of mitigation so long as it does not preclude the jury from giving effect to any relevant mitigating evidence. Johnson v. Texas, 509 U.S. 350, 362, 113 S.Ct. 2658, 2666, 125 L.Ed.2d 290 (1993); Penry, supra, at 326, 109 S.Ct., at 2951; Franklin v. Lynaugh, 487 U.S. 164, 181, 108 S.Ct. 2320, 2331, 101 L.Ed.2d 155 (1988). Our consistent concern has been that restrictions on the jury's sentencing determination not preclude the jury from being able to give effect to mitigating evidence. Thus, in Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), we held that the standard for determining whether jury instructions satisfy these principles was “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Id., at 380, 110 S.Ct., at 1198; see also Johnson, supra, at 367-368, 113 S.Ct., at 2669.
But we have never gone further and held that the state must affirmatively structure in a particular way the manner in which juries consider mitigating evidence. And indeed, our decisions suggest that complete jury discretion is constitutionally permissible. See Tuilaepa, supra, at 978-979, 114 S.Ct., at 2638-2639 (noting that at the selection phase, the state is not confined to submitting specific propositional questions to the jury and may indeed allow the jury unbridled discretion); Stephens, supra, at 875, 103 S.Ct., at 2741-2742 (rejecting the argument that a scheme permitting the jury to exercise “unbridled discretion” in determining whether to impose the death penalty after it has found the defendant eligible is unconstitutional, and noting that accepting that argument would require the Court to overrule Gregg, supra).

Buchanan v. Angelone, 522 U.S. at 275-277.

         C. De Novo Review

         Petitioner relies upon the Supreme Court's opinions in Apprendi v. New Jersey, 530 U.S. 466 (2000), Ring v. Arizona, 536 U.S. 584 (2002), and Hurst v. Florida, 136 S.Ct. 616 (2016). Petitioner misconstrues the holding in Hurst, as well as those in Ring and Apprendi as they apply to Alabama's capital sentencing scheme generally and his own trial in particular.

         In Apprendi v. New Jersey, the Supreme Court struck down on due process grounds a state scheme that permitted a trial judge to make a factual finding based on a preponderance of the evidence regarding the defendant's motive or intent underlying a criminal offense and, based on such a finding, increase the maximum end of the applicable sentencing range for the offense by a factor of one hundred percent. Apprendi, 530 U.S. at 497. The Supreme Court's opinion in Apprendi emphasized it was merely extending to the state courts the same principles discussed in Justice Stevens' and Justice Scalia's concurring opinions in Jones v. United States, 526 U.S. 227, 252-53 (1999): other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490. Put more simply, the Supreme Court held in Apprendi (1) it was unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal is exposed and (2) all such findings must be established beyond a reasonable doubt. Id., 530 U.S. at 490.

         Two years later, in Ring v. Arizona, the Supreme Court applied the holding and its reasoning in Apprendi to strike down a death sentence in a case in which the jury had declined to find the defendant guilty of pre-meditated murder during the guilt-innocence phase of a capital trial (instead finding the defendant guilty only of felony murder) but a trial judge subsequently concluded the defendant should be sentenced to death based upon factual determinations that (1) the offense was committed in expectation of receiving something of pecuniary value (i.e., the fatal shooting of an armored van guard during a robbery) and (2) the foregoing aggravating factor out-weighed the lone mitigating factor favoring a life sentence (i.e., the defendant's minimal criminal record).[80] Ring v. Arizona, 536 U.S. at 609. The Supreme Court emphasized, as it had in Apprendi, the dispositive question “is not one of form, but of effect”: [i]f a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact - no matter how the State labels it - must be found by a jury beyond a reasonable doubt.” Id., 536 U.S. at 602. “A defendant may not be exposed to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.” Id., 536 U.S. at 602 (quoting Apprendi, 530 U.S. at 483). Because Ring would not have been subject to the death penalty under Arizona law based solely upon the jury's verdict (and but for the trial judge's factual determination as to the existence of an aggravating factor), the Supreme Court declared Ring's death sentence violated the right to trial by jury protected by the Sixth Amendment. Id., 536 U.S. at 609.

         In Blakely v. Washington, 542 U.S. 296, (2004), the Supreme Court struck down as a violation of the Sixth Amendment's right to jury trial a judge-imposed sentence of imprisonment that exceeded by more than three years the state statutory maximum of 53 months. Blakely v. Washington, 542 U.S. at 303-04. In so ruling, the Supreme Court relied upon its prior holding in Apprendi, 530 U.S. at 490 (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”). In Blakely, the Supreme Court also relied upon its prior opinion in Ring v. Arizona, supra, for the principle “the ‘statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.Blakely v. Washington, 542 U.S. at 303.

         In Hurst v. Florida, the Supreme Court struck down as a violation of the principles announced in Apprendi and Ring a death sentence imposed by a Florida judge after the jury at the guilt-innocence phase of Hurst's trial convicted him of first-degree murder but failed to specify which of the two theories of murder submitted (i.e., premeditated murder or felony murder for an unlawful killing during a robbery) it believed. Hurst, 136 S.Ct. at 619-20. The Florida felony murder statute at the time of Hurst's trial, as was true for Arizona's felony murder statute at the time of Ring's trial, did not require a jury finding of the specific intent to kill.[81]Consistent with Florida's hybrid capital sentencing scheme, the sentencing court held an evidentiary hearing before the jury, and the jury recommended a sentence of death. After the Florida Supreme Court vacated Hurst's first sentence, the sentencing judge conducted a new evidentiary hearing, instructing the jury it could recommend a death sentence if it found at least one aggravating circumstance beyond a reasonable doubt, i.e., either the murder was especially heinous, atrocious, or cruel, or the murder was committed while Hurst was committing a robbery. At the conclusion of the second sentencing hearing the jury recommended death by a vote of 7 to 5. In her sentencing order, the trial judge relied upon her independent determination that the evidence established statutory aggravating factors of (1) the capital felony was especially heinous, atrocious, or cruel and (2) the capital felony was committed while the defendant was engaged, or was an accomplice, in the commission or an attempt to commit, or flight after committing or attempting to commit any robbery, i.e., Fla. Stat. § 921.141(6)(d) & (h) (2010). The Supreme Court held the Sixth Amendment and Due Process Clause jointly require that each element of a crime be proved to a jury beyond a reasonable doubt. Hurst, 136 S.Ct. at 621. The Supreme Court described its prior holding in Apprendi as follows: “any fact that ‘exposes the defendant to a greater punishment than that authorized by the jury's guilty verdict' is an ‘element' that must be submitted to a jury.” Id. (emphasis added). The Supreme Court concluded Hurst's death sentence was invalid because the sentencing judge, not a jury, found the aggravating circumstance necessary for the imposition of the death penalty under Florida law. Id., at 624.

         Alabama's capital sentencing scheme is very similar to the hybrid system that produced Hurst's death penalty. As explained in detail in Section I.D.3. above, Petitioner's capital sentencing proceeding followed the same pattern as Hurst's: first, the trial judge instructed an advisory jury it could only consider specific aggravating circumstances it determined beyond a reasonable doubt existed in Petitioner's case; second, the jury recommended a sentence of death; and finally, the trial judge issued a written sentencing order containing factual findings, weighing aggravating factors he concluded had been established beyond a reasonable doubt against mitigating circumstances, and imposing a sentence of death. There the similarities between Petitioner's trial and those in Hurst, Ring, and Enmund end, however.

         What distinguishes Petitioner's trial from the constitutionally defective capital murder trials in Hurst, Ring, and Enmund discussed above, and what distinguishes the holding in Apprendi from the circumstances of Petitioner's case, is the fact Petitioner's capital sentencing jury made all the factual determinations at the guilt-innocence phase of Petitioner's trial (unanimously and beyond a reasonable doubt) necessary to render Petitioner eligible for the death penalty under Alabama law (i.e., finding Petitioner (1) intentionally murdered Mrs. Liveoak and (2) did so in the course of committing her robbery and kidnaping). As the Supreme Court explained in Hurst, its holding in Apprendi was that “any fact that ‘exposes the defendant to a greater punishment than that authorized by the jury's guilty verdict' is an ‘element' of the offense that must be submitted to a jury.” Hurst, 136 S.Ct. at 621. The jury's factual findings at the guilt-innocence phase of Petitioner's capital murder trial rendered Petitioner eligible for the death penalty within the meaning of the Supreme Court's Eighth Amendment jurisprudence. See Tuilaepa v. California, 512 U.S. at 971-72 (“To render a defendant eligible for the death penalty in a homicide case, we have indicated that the trier of fact must convict the defendant of murder and find one ‘aggravating circumstance' (or its equivalent) at either the guilt or penalty phase.”). Petitioner's jury made guilt-innocence phase factual findings, unanimously and beyond a reasonable doubt, that he (1) intentionally killed Mrs. Liveoak and (2) committed her murder in the course of her robbing and kidnaping. These factual findings were all that were necessary under applicable Alabama law and the Eighth Amendment to render Petitioner eligible to receive a sentence of death.

         As explained at length above, the Supreme Court's Sixth and Eighth Amendment jurisprudence requires that all factual determinations necessary to render a defendant eligible for a sentence of death must be made unanimously and beyond a reasonable doubt by a jury. The juries in Enmund, Ring, and Hurst all rendered ambiguous guilty verdicts on charges of first-degree murder. Those charges were premised or potentially premised upon felony murder theories that did not require the prosecution to establish beyond a reasonable doubt that the defendant acted with the specific intent to kill, as required by the holding in Enmund. Likewise, the ambiguous guilty verdicts in Enmund, Ring, and Hurst did not establish that the juries in those cases had concluded unanimously and beyond a reasonable doubt the existence of an aggravating circumstance that both (1) did not apply to every defendant convicted of a murder and (2) was not unconstitutionally vague.[82] See Tuilaepa, 512 U.S. at 972 (the aggravating circumstance must apply only to a subclass of defendants convicted of murder and may not be unconstitutionally vague). In stark contrast, Petitioner's guilty verdict on the capital murder counts against him necessarily included factual findings (unanimously and beyond a reasonable doubt) that Petitioner intentionally killed Mrs. Liveoak in the course of both her kidnaping and robbery. Petitioner's guilty verdict did not suffer from any of the ambiguities present in Enmund, Ring, or Hurst. For this reason, Petitioner's death penalty does not suffer from the same constitutional defect that took place during the trials of Enmund, Ring, and Hurst. Likewise, the Petitioner's death sentence does not violate the constitutional rule announced in Apprendi. Petitioner's trial conformed in all respects to the Sixth and Eighth Amendment requirements applicable to the eligibility determination of the capital sentencing process.

         The Supreme Court has distinguished the constitutional requirements of the eligibility decision, i.e., the narrowing function, and the selection decision, i.e., the individualized assessment of mitigating circumstances, holding the latter requires only that the sentencing jury be given broad range to consider all relevant mitigating evidence but leaving to the States wide discretion on how to channel the sentencing jury's balancing of mitigating and aggravating factors. See Kansas v. Marsh, 549 U.S. 158, 174-75 (2007) (holding, in connection with the selection phase of a capital sentencing proceeding, the Constitution mandates only that (1) the defendant has a right to present the sentencing authority with information relevant to the sentencing decision and (2) the sentencing authority is obligated to consider that information in determining the appropriate sentence); Tuilaepa, 512 U.S. at 978 (holding, at the selection stage, States are not confined to submitting to the jury specific propositional questions but, rather, may direct the jury to consider a wide range of broadly defined factors, such as “the circumstances of the crime, ” “the defendant's prior criminal record” and “all facts and circumstances presented in extenuation, mitigation, and aggravation of punishment”).

         At the selection phase of a capital trial, the Supreme Court has left to the States the decision whether to channel a sentencing jury's weighing of mitigating evidence or grant the jury unfettered discretion to consider all relevant mitigating evidence and weigh that evidence in any manner the jury deems reasonable. See Kansas v. Marsh, 549 U.S. at 174 (“So long as a state system satisfies these requirements, our precedents establish that a State enjoys a range of discretion in imposing the death penalty, including the manner in which aggravating and mitigating circumstances are to be weighed.”). Likewise, the Supreme Court has not yet imposed a particular burden of proof requirement with regard to a capital sentencing jury's consideration of mitigating evidence when such consideration occurs exclusively within the selection process:

In sum, “discretion to evaluate and weigh the circumstances relevant to the particular defendant and the crime he committed” is not impermissible in the capital sentencing process. “Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty, . . . the jury then is free to consider a myriad of factors to determine whether death is the appropriate punishment.” Indeed, the sentencer may be given “unbridled discretion in determining whether the death penalty should be imposed after it has been found that the defendant is a member of the class made eligible for that penalty.”

Tuilaepa v. California, 512 U.S. at 979-80 (citations omitted).

         “[T]here is no constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence ‘in an effort to achieve a more rational and equitable administration of the death penalty.'” Johnson v. Texas, 509 U.S. 350, 362 (1993) (quoting Boyde v. California, 494 U.S. at 377). “We have never held that a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required.” Kansas v. Marsh, 549 U.S. at 175 (quoting Franklin v. Lynaugh, 487 U.S. at 179).

         The Supreme Court has never categorically mandated jury resolution of all factors at the selection phase of a capital sentencing process. On the contrary, the Supreme Court's jurisprudence addressing the selection aspect of capital sentencing has focused on requiring consideration of all mitigating evidence, as well as the circumstances of the capital offense. See Tuilaepa v. California, 512 U.S. at 972 (“What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime.” (quoting Zant v. Stephens, 462 U.S. 862, 879 (1983)). “The selection decision, on the other hand, requires individualized sentencing and must be expansive enough to accommodate relevant mitigating evidence so as to assure an assessment of the defendant's culpability.” Tuilaepa v. California, 512 U.S. at 973.

         Petitioner received exactly the type of individualized assessment of his culpability in the context of all the mitigating evidence presented during trial when (1) the jury considered all relevant mitigating evidence presented during either phase of trial, (2) the jury made its sentencing recommendation (after weighing only those aggravating circumstances it determined had been established beyond a reasonable doubt against all the mitigating circumstances), and (3) the trial judge issued his findings and conclusions in his sentencing order (which findings were dictated, in part, by the jury's unanimous finding beyond a reasonable doubt that the Petitioner's capital offense took place in the course of a kidnaping and robbery).[83]

         The jury made the determination at the guilt-innocence phase of trial that Petitioner's intentional capital offense took place in the course of the kidnaping and robbery of Mrs. Liveoak. The jury made these determinations unanimously and beyond a reasonable doubt. Petitioner admitted during his testimony at the guilt-innocence phase of his trial that he committed the kidnaping and robbery of Mr. Portwood just days before the kidnaping, robbery, and murder of Mrs. Liveoak. The state trial court was constitutionally obligated to consider the circumstances of Petitioner's offense when it made the selection determination at the punishment phase of Petitioner's capital murder trial. This necessarily included consideration of the particularly tortured final hours Mrs. Liveoak spent without food, water, or ventilation inside the steel trunk of her car, which Petitioner parked in an isolated location bereft of shade on an asphalt parking lot in the middle of July in central Alabama. After the jury unanimously made the determinations beyond a reasonable doubt at the guilt-innocence phase of trial that Petitioner intentionally murdered Mrs. Liveoak during the course of her kidnaping and robbery, Petitioner received from both the advisory jury and the trial court the individualized consideration of the circumstances of his offense and the mitigating aspects of his character and background at the punishment phase of his capital murder trial. This is all the Eighth and Sixth Amendments required in connection with the selection decision. Petitioner's final claim for relief contained in his original petition, as supplemented by Petitioner's Hurst claim contained in his amended petition, does not warrant federal habeas corpus relief under a de novo standard of review.

         V. TRIAL COURT RULINGS ON CHALLENGES FOR CAUSE

         A. The Claim

         In his fifth claim for relief in his original petition, Petitioner complained about both the state trial court's granting of the prosecution's challenge for cause to venire member 129 and the trial court's refusal to grant the defense's challenge for cause to venire member 64 (Doc. #1, at pp. 14-15). The court rejected Petitioner's latter argument on the merits under the AEDPA's standard of review in the Order issued January 12, 2012 (Doc. #120, at pp. 23-24, 31-32). This leaves only Petitioner's complaint about the state trial court's granting of the prosecution's challenge for cause to venire member 129 for de novo review.

         The individual voir dire examination of venire member 129 included the following exchanges:

THE COURT: This is a capital murder case, meaning you may or may not be called upon to make a decision about capital punishment. Do you understand that?
PROSPECTIVE JUROR: Yes, sir.
THE COURT: You may not be called upon because there are other lesser included offenses for you to consider. However, if you are called upon to make that decision, I need to ask you these questions, because it would be too late at the end of the case to ask you these questions. Capital punishment means life without parole or the death penalty. Do you have an opinion one way or the other about capital punishment?
PROSPECTIVE JUROR: Yes, sir.
THE COURT: What is that, please, ma'am?
PROSPECTIVE JUROR: I don't believe in capital punishment.
THE COURT: When you say you don't believe in capital punishment, I am assuming you are talking about the death penalty; is that right?
PROSPECTIVE JUROR: Yes, sir.
THE COURT: You don't believe it serves an appropriate function in our society?
PROSPECTIVE JUROR: No, sir.
THE COURT: Let me ask you this. Let me tell you this first. In Alabama here the State of Alabama recognizes certain criminal offenses whereby the punishment may be the death penalty. Now, I recognize that you may personally disagree with that. But let me ask you this. If you are selected as a juror in this case, and you are called upon to make that decision, do you think you could entertain the possibility of the death penalty as a sentence in this case?
PROSPECTIVE JUROR: No, sir.
THE COURT: You don't think if I give you instructions that would tell you you need to consider and weigh these factors, that you could do that in deciding whether or not the death penalty could be imposed?
PROSPECTIVE JUROR: No, sir.
THE COURT: What you are telling me then is your personal opinion is just so great and you just disagree with it so much you just couldn't rule and you couldn't consider that at all?
PROSPECTIVE JUROR: Yes, sir.
THE COURT: State?
MR. MCNEIL: No questions.
THE COURT: Defense?
EXAMINATION BY MR. AGRICOLA:
Q: Ms. Foy, do you understand that the Alabama Legislature passes the laws that we are governed by here in Alabama?
A: Yes, sir.
Q: And do you understand that the Alabama Legislature has passed a law that authorizes the death penalty in some cases where the circumstances are so bad that a judgment has been made by the Legislature that the death penalty ought to be authorized in those cases? Do you understand that's the law?
A: Yes, sir.
Q: Now, you have expressed, I think, a pretty clear personal belief against the death penalty?
A: Yes, sir.
Q: Do you understand, Ms. Foy, when you enjoy the benefits of citizenship in this country and in this state, that it carries with it certain obligations?
A: Yes, sir.
Q: And one of those obligations is jury service?
A: Yes, sir.
Q: Now do you understand that in a civilized society we have to follow the law?
A: Yes, sir.
Q: And that if we don't follow the law, all of us will be in serious danger of our life and limb?
A: Yes, sir.
Q: Ms. Foy. What happens in cases like this is that the judge will explain to you what the law is. And as a juror, you will be required to take an oath. Do you understand that?
A: Yes, sir.
Q: And if you take that oath, you must abide by that oath to follow the law?
A: Yes, sir.
Q: If the Judge instructs you that if you make a finding as a juror that the defendant is guilty of capital murder, do you understand that you must follow his instructions and consider two punishments; one being life without parole, and one being the death penalty.
A: Yes, sir.
Q: And he would explain to you what the law is that you must apply to the evidence?
A: Yes, sir.
Q: Now, regardless of your personal feelings can you follow the law?
A: Yes, sir.
Q: Can you swear under oath that you will listen to the Judge and apply the law to the facts and the evidence that comes in from the witness stand?
A: Yes, sir.
Q: You are not saying here today, are you, that you would automatically vote against the death penalty if the facts are and if the jury finds that the facts satisfy the law about the death penalty? You wouldn't automatically dismiss the death penalty as an option, would you?
A: Yes, sir.
MR. AGRICOLA: That's all.
EXAMINATION BY MR MCNEIL:
Q: Ms. Foy, I am a little confused now. On the Judge's questions you said that you would not consider the death penalty as a punishment, that you would not consider it?
A: No.
Q: Let me ask you these questions then. Maybe I misunderstood you. Are you against the death penalty?
A: Yes, sir.
Q: You said a strong belief?
A: Yes, sir.
Q: Is that belief so strong that you feel like it would really get in the way with your ability to follow the ...

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