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Taylor v. Dunn

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

January 25, 2018

JARROD TAYLOR, Petitioner,
v.
JEFFERSON S. DUNN, Commissioner, Alabama Department of Corrections, Respondent.

          ORDER

          WILLIAM H. STEELE, UNITED STATES DISTRICT JUDGE

         This death-penalty habeas action comes before the Court on petitioner's “Amended Petition for Writ of Habeas Corpus by Prisoner in State Custody under Death Sentence” (doc. 25). The respondent has filed a comprehensive Answer (doc. 33), and both sides have submitted additional detailed briefs (docs. 38, 39, 43, 46, 47, 48) setting forth their respective legal positions as to the dozens of grounds for relief presented in the petitioner's § 2254 motion. After careful review of these materials, as well as relevant portions of the 59-volume record of state-court proceedings, the Court finds that the § 2254 Petition is ripe for disposition, without an evidentiary hearing.

         I. Background.

         A. The Offense Conduct.[1]

         On the morning of December 12, 1997, Jarrod Taylor and his friend, Kenyatta McMillan, went to Steve Dyas Motors, a used car dealership in Mobile, Alabama, for the purpose of robbing it. As part of their scheme, Taylor feigned interest in purchasing a Ford Mustang. Over the course of several hours, spanning multiple visits to the dealership, Taylor test-drove the vehicle, negotiated a purchase price with Steve Dyas Motors employee Sherry Gaston, and completed paperwork for the sale. Taylor falsely explained to Steve Dyas Motors that his father-in-law in Louisiana was going to pay for the Mustang as an early Christmas gift to him.

         Later in the day, most Steve Dyas Motors employees left the dealership to attend the company's annual Christmas party that evening. Sherry Gaston remained at the office, awaiting Taylor's return in order to complete the sale of the Mustang. The only other people on the premises were Sherry Gaston's husband, Bruce Gaston, and the owner and namesake of the business, Steve Dyas. When Taylor and McMillan entered the dealership for the last time, Taylor immediately shot Bruce Gaston in the chest with a .380 caliber pistol. Sherry Gaston and Steve Dyas ran for their lives in a desperate attempt to escape. McMillan stopped Dyas at gunpoint and forced him back to the office, where Taylor and McMillan demanded that he tell them where the money and the safe were. Dyas's answers were not to their liking, so Taylor put the .380 pistol to Dyas's head and pulled the trigger, killing him instantly. As for Sherry Gaston, she had locked herself in a bathroom. Taylor ordered her to come out and she complied, begging for her life; however, Taylor shot her in the head, killing her instantly.

         Taylor and McMillan proceeded to take Sherry Gaston's purse and the wallets of Bruce Gaston and Steve Dyas. They also took the paperwork that Sherry Gaston had prepared for the sale of the Mustang, leaving copies on her desk in an effort to make it appear that Taylor had actually completed the purchase of the vehicle. As they prepared to leave the dealership, Taylor noticed Bruce Gaston move, so he walked over to Gaston and shot him in the head, killing him instantly. Taylor and McMillan left the premises, taking the Ford Mustang with them, and fled Mobile that night. They were apprehended in the stolen Mustang the following morning in Selma, Alabama, more than 150 miles away from the scene of the crime.

         B. Indictment, Trial and Death Sentence.

         Four months later, on April 17, 1998, Taylor was indicted in Mobile County Circuit Court for four counts of capital murder, one for each of the deaths of Sherry Gaston, Bruce Gaston and Steve Dyas during a first-degree robbery, in violation of Alabama Code § 13A-5-40(a)(2), with the fourth count charging murder of two or more persons pursuant to one scheme or course of conduct, in violation of § 13A-5-40(a)(10). Taylor's counsel of record was Richard Horne, with Arthur Powell being appointed as co-counsel six days before the trial commenced for the primary purpose of assisting with the penalty phase.

         The jury trial commenced on August 3, 1998, with Judge Douglas L. Johnstone presiding. The State presented its case-in-chief beginning on August 5, 1998. Taylor's accomplice, Kenyatta McMillan, was the star witness for the State, testifying to details of the murders and robberies, including that Taylor was the trigger man; however, the State also offered considerable corroborating evidence from multiple independent witnesses, Taylor's own statement, and forensic evidence. After five days of testimony, on August 11, 1998, the jury returned a unanimous verdict finding Taylor guilty of all four charged counts of capital murder. During the ensuing penalty phase conducted on August 11, 1998, the State called no witnesses. The defense put Taylor on the stand to express remorse, and called several other witnesses (including two of Taylor's sisters, his mother, and his minister) to testify in mitigation. The trial court charged the jury on two aggravating circumstances, to-wit: (i) the capital offense was committed in the course of a robbery, pursuant to Ala. Code § 13A-5-49(4); and (ii) the capital offense was especially heinous, atrocious or cruel, pursuant to Ala. Code § 13A-5-49(8). Upon deliberation, the jury recommended, by a vote of 7-5 as to each count, that Taylor be sentenced to life imprisonment without the possibility of parole.

         After a sentencing hearing, Judge Johnstone entered a 12-page Judgment and Sentence on August 25, 1998. The trial judge opined that even if accomplice McMillan's testimony were discounted entirely, the corroborating and forensic evidence was sufficient to support Taylor's capital murder convictions. (Vol. 53, R-113, at 4.) Judge Johnstone further concluded beyond a reasonable doubt that the murders of Sherry Gaston, Bruce Gaston and Steve Dyas were heinous, atrocious and cruel, in that (i) “none of the victims offered any resistance whatsoever, ” (ii) “two of them pleaded for their lives and offered Taylor and McMillan all of the victims' money and property available, ” and (iii) “Taylor and McMillan deliberately and methodically murdered all three victims in the most certain way imaginable” (i.e., by pressing the .380 pistol against their heads and pulling the trigger). (Id. at 5.) The trial court likewise found beyond a reasonable doubt that the aggravating circumstance of capital murder committed in the course of a robbery had been proven beyond a reasonable doubt, given that (i) “the performance of the robbery scheme began before all three murders and continued during and after all three murders, ” (ii) “Taylor and McMillan consummated the robberies of the victims' money and belongings and the Ford Mustang immediately after the murders, ” and (iii) the murders were committed “to exert unauthorized control over the property and to overcome the victims' physical power of resistance to the taking of the property.” (Id.) As to mitigating circumstances, the trial court considered numerous statutory and non-statutory mitigating circumstances advanced by Taylor's attorneys, and deemed them all to be either non-existent or entitled to little weight. (Id. at 6-10.)

         Upon weighing the aggravating and mitigating circumstances, and also giving “great respect” to the jury's sentencing recommendation, the trial court concluded as follows:

“The Court finds that the crime proved against the defendant Jarrod Taylor pursuant to each count of the indictment … was abominably aggravated and, at best, only faintly mitigated. Nothing in the evidence in this case or the demeanor of the defendant could reasonably be construed to warrant sparing the defendant's life under Alabama law as it is written. In terms of the legal test, the Court finds that the aggravating circumstances so outweigh the mitigating circumstances that death by electrocution is the only appropriate sentence. Therefore, this Court declines to follow the recommendation of the jury.”

(Id. at 11.) Judge Johnstone proceeded to sentence Taylor to death on each of the four counts of capital murder charged in the indictment. (Id. at 11-12.)

         On September 24, 1998, Taylor, by and through his trial counsel of record, filed a Motion for New Trial, raising as grounds for relief the following: (i) insufficient corroboration of McMillan's testimony that Taylor was the trigger man; (ii) alleged error in allowing jailhouse witness Bryann Scott Clark to recant his trial testimony that McMillan had confessed to Clark that he had murdered the Gastons and Steve Dyas; (iii) McMillan's testimony was “incredible as a matter of law” because his trial testimony purportedly contradicted his previous statement under oath; (iv) alleged error in refusing to allow the State Medical Examiner to testify that the forensic evidence was consistent with victim Dyas lying on the floor when he was murdered, as opposed to “kneeling in prayer” while begging for his life as McMillan had testified; (v) alleged error in allowing Warden Rick Gaston to testify for the State as to jail communications despite having been present in the courtroom (in violation of “The Rule”) during the testimony of jailhouse witnesses Clark and Robert Nolin; (vi) objections to certain specific findings in the Judgment and Sentence as relating to corroboration of McMillan's narrative; (vii) objection to the Judgment and Sentence's finding that Taylor was the leader, or at least a full partner, in the robberies and murders because such finding was based solely on McMillan's testimony; (viii) alleged error in the trial court's treatment of nonstatutory mitigating factors; (ix) alleged error by the trial court in rejecting the “lingering doubt” mitigating factor based solely on “rank speculation” and McMillan's testimony; and (x) alleged error for the trial court to substitute its opinion on penalty for that of the jury, thereby reducing the jury's role in the penalty phase “to a mere sham.” (Vol. 1, R-2, at 166-84.) After an evidentiary hearing, Judge Johnstone denied the Motion for New Trial on October 6, 1998. (Vol. 10, R-40, at 1710-16.)[2]

         C. Direct Appeal.

         Attorney Horne (but not attorney Powell) continued to represent Taylor on direct appeal, with the assistance of newly appointed co-counsel, Glenn Davidson. In this appeal, defense counsel raised and litigated more than 60 distinct assignments of error, including the following: (i) the trial court erred in not allowing defense counsel to question the State's forensic pathologist about the position of Dyas's body at the time he was shot; (ii) the trial court erred in denying the defense's Batson motion during jury selection; (iii) improper admission into evidence of a blue bag found in Taylor's hotel room in Selma at the time of his arrest, which bag included papers showing that Taylor was in arrears on child support payments; (iv) error in failing to give the jury a limiting instruction on the proper use of evidence of collateral bad acts; (v) improper consideration of sentencing recommendations expressed by the victims' friends and family; (vi) failure to consider McMillan's more lenient sentence as a mitigating circumstance; (vii) erroneous conclusion that the murders were especially heinous, atrocious or cruel; (viii) suggestion that the jury was not functioning properly during the penalty phase; (ix) error in allowing the State to present Clark's recantation as rebuttal evidence; (x) error in denying the Motion for New Trial based on Clark's new testimony that his recantation was coerced; (xi) failure to instruct the jury on the lesser-included offense of robbery; (xii) error by the trial court in failing to conduct thorough voir dire of all jurors after an emotionally unstable juror was sent home; (xiii) lack of corroboration of McMillan's accomplice testimony, as required by Alabama Code § 12-21-222; (xiv) improper limits on the defense's opening statement at trial by restricting counsel from apprising the jury of McMillan's prior bad acts; (xv) due process claim that Taylor and his counsel were absent during a portion of jury selection; (xvi) failure to grant a continuance when Taylor's co-counsel was appointed just six days before jury selection; (xvii) failure to suppress Taylor's statement to law enforcement officers when he was not given a fair opportunity to invoke Miranda rights; (xviii) improper admission of a redacted audiotape of Taylor's statement; (xix) error in the trial court's failure to excuse sua sponte a veniremember who recognized McMillan and a relative of one of the victims, and who had heard details of the murders; (xx) improper denial of defense motion for veniremembers to complete questionnaires; (xxi) denial of defense motion for individual voir dire examination; (xxii) denial of defense motion to disqualify all potential jurors who were acquainted with victims or victims' family members; (xxiii) harassment and intimidation of jurors by the trial court; (xxiv) prosecutorial misconduct in closing argument by commenting on Taylor's silence; (xxv) improper closing argument by the State in misstating the law; (xxvi) prosecutorial misconduct in accusing defense counsel of lying and suborning perjury; (xxvii) improper impeachment by the State as to a defense witness's previous conviction; (xxviii) prosecutorial misconduct in improperly emphasizing that the murders took place at Christmastime; (xxix) improper argument by the State to sentence Taylor to death based on McMillan's conduct; (xxx) due process and equal protection violations by the trial court in overriding the jury's sentencing recommendation of life without parole; (xxxi) error by the trial court in granting the State's motion for blood samples from Taylor; (xxxii) erroneous admission of multiple State exhibits that were not clearly identified for the record; (xxxiii) assertion that the trial record was incomplete because of omission of certain exhibits and jury questionnaires; (xxxiv) improper admission of bank employee's hearsay statement about what sounded like a gunshot; (xxxv) improper admission of hearsay statements concerning Taylor's and McMillan's assessment of which banks would be suitable to rob; (xxxvi) improper admission of hearsay statement by Taylor about the need to carry a gun to protect himself; (xxxvii) error in allowing Warden Gaston to testify in rebuttal for the State after being present in the courtroom for the testimony of multiple defense witnesses; (xxxviii) improper exclusion of jurors who expressed reservations about the death penalty; (xxxix) double jeopardy violation in allowing the State to double-count the robbery component of the capital murder offense as an aggravating circumstance; (xl) denial of a fair and representative jury because the trial court bestowed heightened authority on the foreperson; (xli) error in allowing victims' family members to be present in the courtroom during trial; (xlii) death sentence for Taylor disproportional to McMillan's life sentence; (xliii) sufficiency of the evidence, given the State's reliance on uncorroborated accomplice testimony from McMillan; (xliv) improper admission of crime scene photographs of the victims; (xlv) electrocution is cruel and unusual punishment; (xlvi) error in failing to move the trial to another venue because of pretrial publicity; (xlvii) unconstitutional limits on out-of-court expenses for court-appointed attorneys in Alabama; (xlviii) improper jury instructions as to specific intent to kill; (xlix) improper jury instruction as to definition of murder; (1) incorrect jury instruction on reasonable doubt; (li) nonsensical jury instruction on felony murder; (lii) improper jury instruction allowing the jury to transfer McMillan's intent to Taylor; (liii) improper jury instruction as to alibi defense; (liv) improper jury instruction that the State was “entitled” to a conviction; (lv) trial court's summary of indictment destroyed presumption of judicial impartiality; (lvi) implication by the trial court that jury instructions were not individualized, leading the jury to shirk or minimize its responsibility; (lvii) improper jury instruction failing to advise jury that aggravating circumstances must be found beyond a reasonable doubt; (lviii) failure to instruct that each juror may consider mitigating circumstances independently of other jurors; (lix) failure to give defense's proposed instructions on burden of proof, presumption of innocence, reasonable doubt, and penalty-phase matters; (lx) impermissible imposition of four death sentences on Taylor for three murders; and (lxi) cumulative error.

         In a comprehensive opinion dated February 4, 2000 and spanning nearly 70 pages in the Southern Reporter, the Alabama Court of Criminal Appeals methodically examined these myriad assignments of error, found them to be without merit, and affirmed Taylor's convictions and death sentences in all respects. See Taylor v. State, 808 So.2d 1148, 1148-1215 (Ala.Crim.App. 2000). The Alabama appellate court expressly concluded as follows: “We have searched the record and have found no error in the sentencing proceedings adversely affecting Taylor's rights. … [W]e have searched the entire proceedings under review and found no plain error or defect that has, or probably has, adversely affected any substantial right of Taylor's.” Id. at 1214. The court also opined that “death is the proper sentence in this case” because “Taylor specifically, deliberately, methodically, and heartlessly formed the specific and particularized intent to kill Sherry Gaston, Bruce Gaston, and Steve Dyas, and then executed that intent equally deliberately, methodically, and heartlessly.” Id. at 1215. Taylor's ensuing petition for rehearing was denied on March 24, 2000.

         The Alabama Supreme Court granted Taylor's petition for certiorari review and, after hearing oral arguments, affirmed the Court of Criminal Appeals' judgment via a written opinion entered on March 9, 2001. See Ex parte Taylor, 808 So.2d 1215 (Ala. 2001). The Alabama Supreme Court noted that Taylor had raised a number of issues, and after consideration, concluded that “[a]ll these issues were fully and correctly addressed in the opinion of the Court of Criminal Appeals.” Id. at 1217. The Alabama Supreme Court specifically wrote to only two such issues. As to Taylor's objection that the trial court's override of the jury's recommendation of a life sentence violated due process and equal protection, the Alabama Supreme Court held “that Alabama's capital-sentencing procedure does not result in the imposition of the death sentence in an arbitrary and capricious manner in violation of the Fourteenth Amendment” and that the trial court had properly applied that procedure in a manner that “met constitutional requirements and was not arbitrary, discriminatory, or fundamentally unfair.” Id. at 1219. The Alabama Supreme Court also wrote to and rejected Taylor's argument that Alabama law did not provide a standard for appellate review of a trial judge's override decision in a particular case. Id. at 1219-20. Taylor's petition for rehearing was denied on July 6, 2001. The U.S. Supreme Court denied Taylor's petition for writ of certiorari on January 7, 2002. See Taylor v. Alabama, 534 U.S. 1086, 122 S.Ct. 824, 151 L.Ed.2d 705 (2002).

         D. Rule 32 Proceedings.

         Having completed his direct appeal, Taylor subsequently commenced state post-conviction proceedings.[3] On July 31, 2002, Taylor filed his initial Rule 32 petition in Mobile County Circuit Court. (Vol. 18, R-52, at 16-124.) On August 15, 2002, Taylor filed a Corrected Rule 32 Petition. (Vol. 18-19, R-53 at 150-274.) In May 2003, Taylor was granted leave to file two further iterations of his Rule 32 petition, styled his “First Amended Petition” and his “Corrected First Amended Petition, ” respectively. (Vol. 21-22, at 676-830; vol. 22, R-56.)

         The 124-page Corrected First Amended Petition under Rule 32 filed by Taylor identified more than two dozen grounds for post-conviction relief, including the following: (1) Alabama's capital statute violates Ring/Apprendi; (2) Alabama's capital statute is arbitrary/capricious because of unfettered discretion afforded sentencing judge; (3) death penalty is unconstitutional because of unreliable application; (4) death by electrocution is cruel and unusual; (5) Taylor may not be executed via electrocution; (6) ineffective assistance of trial counsel for failure to disclose an actual conflict; (7) ineffective assistance of trial counsel at jury selection (inadequate voir dire, failure to challenge/examine jurors exposed to extra-judicial information, failure to challenge/examine jurors whose family members had been victims, failure to question jurors regarding bias); (8) ineffective assistance of trial counsel in failing to make a competent Batson objection; (9) ineffective assistance in failure to seek removal of a juror and investigation of juror misconduct; (10) ineffective assistance in failure to present an adequate defense (lack of diligence in pursuing pretrial motions, failure to retain experts and present forensic evidence to impeach State's witnesses, ineffectiveness during McMillan's testimony, failure to seek exclusion of irrelevant/prejudicial evidence, failure to investigate facts, failure to conduct proper cross-examination, failure to point out contradictions in State witnesses' testimony, failure to object to prejudicial comments by State during opening/closing, failure to ensure proper jury charges); (11) ineffective assistance at sentencing phase (failure to call Taylor's brother Jeff to testify, failure to develop mitigation evidence regarding Taylor's son, failure to conduct a mitigation investigation of Taylor's life and background, failure to retain psychiatric expert because of “scheduling issues, ” failure to hire mitigation expert, failure to object to penalty phase jury charge regarding weighing of aggravating and mitigating circumstances, failure to explain “misprision of a felony” to jurors); (12) ineffective assistance for failure to object to trial errors; (13) ineffective assistance for failure “ardently” to pursue motion for new trial; (14) ineffective assistance for failure to object to trial judge's “partisan participation;” (15) ineffective assistance because of inadequate compensation; (16) ineffective assistance based on cumulative errors; (17) race and gender discrimination in formation of petit jury; (18) “death qualification” of jury violated Taylor's right to impartial jury; (19) juror misconduct (juror Davis answered questions untruthfully and made biased statements before being removed, premature deliberations); (20) trial judge was legally disqualified for accepting campaign contributions from Taylor's counsel; (21) Taylor's constitutional rights were violated because the trial judge was in the midst of an election campaign at time of trial and sentencing; (22) the trial judge was assigned Taylor's case in a manner that violated due process; (23) double jeopardy in the imposition of a distinct death sentence for killing of three people pursuant to one course of conduct, plus death sentences for each of the three murders; (24) insufficient evidence of “heinous, atrocious or cruel” aggravating circumstance; (25) State “apparently” violated Brady because it “may have withheld information regarding Warden Rick Gaston and conversations concerning the recanted testimony of Bryan Scott Clark, ” “may have withheld information regarding Kenyatta McMillan's statements to the police, ” and “may also have withheld information regarding interviews with Cherelle Carlton and Tiffany Carlton;” (26) error in failure to allow individual voir dire of venire; and (27) cumulative error. (Vol. 22, R-56, at 831-959.)

         The course of Taylor's Rule 32 proceedings will be addressed in considerable detail infra, in the context of this Court's procedural default analysis. In summary, however, the State filed motions on May 27, 2003, seeking to dismiss many of the claims presented in Taylor's Corrected First Amended Rule 32 Petition. (Vol. 25, R-61, R-64, R-65, R-71.) Following briefing, on October 23, 2003, the trial court entered a series of four orders granting the State's motions to dismiss and dismissing many aspects of Taylor's Rule 32 petition. (Vol. 53, R-117, R-118, R-119, R-120.) The trial court also entered an order granting the State's motion to prohibit Taylor from making further amendments to his Rule 32 petition. (Vol. 53, R-121.) Following a hearing, the trial court entered a final order on August 1, 2005, summarily dismissing Taylor's Rule 32 petition in its entirety. (Vol. 54, R-122.) After several years of litigation in Alabama's appellate courts, Taylor's Rule 32 proceedings were remanded to the trial court on the grounds that certain claims remained pending after the October 2003 rulings, such that the trial court's summary dismissal of Taylor's entire petition in August 2005 was improper. (Vol. 53, R-128 at 10.) Upon this limited remand to Mobile County Circuit Court, Taylor made multiple attempts to amend his Rule 32 petition further to raise numerous new grounds for relief. (Vol. 34, R-93; vol. 46, R-101.) The trial court disallowed those proposed amendments as impermissible pursuant to Alabama law and procedure. (Vol. 53, R-129.) Taylor's attempts to obtain a writ of mandamus to allow such amendments to his Rule 32 petition were denied by the Alabama appellate courts. (Vol. 53, R-130.) After an evidentiary hearing, the trial court entered an order dismissing Taylor's Rule 32 petition on May 23, 2012. (Vol. 53, R-131.) Taylor's appeals from that ruling were denied by the Alabama Court of Criminal Appeals on April 23, 2013 and by the Alabama Supreme Court on April 25, 2014. (Vol. 53, R-134, R-135.)

         E. Federal Habeas Petition.

         On September 22, 2014, Taylor filed his Petition for Writ of Habeas Corpus (doc. 5) pursuant to 28 U.S.C. § 2254. Nearly three months later, on December 19, 2014, Taylor filed a 283-page Amended Petition for Writ of Habeas Corpus setting forth 11 grounds for federal habeas relief (along with dozens of embedded sub-grounds and sub-issues), under the following headings: (i) the State exercised peremptory challenges in a manner that violated equal protection and due process; (ii) the State's misconduct (in knowingly using false testimony from McMillan and others, and failing to disclose impeachment evidence) violated Taylor's right to a fair trial; (iii) ineffective assistance of trial counsel in myriad respects during jury selection, the guilt phase, the penalty phase, and the motion for new trial; (iv) lack of an impartial tribunal; (v) use of improper and unconstitutional jury instructions during the guilt phase and penalty phase; (vi) insufficient evidence of capital murder; (vii) trial court's reliance on improper evidence to override jury's recommendation of life sentence; (viii) cumulative error; (ix) McMillan's confession requires vacatur of Taylor's convictions and sentences; (x) Alabama courts wrongfully deprived Taylor of his right fully and fairly to litigate his claims; and (xi) the Alabama capital statute is unconstitutional on its face and as applied to Taylor in many respects. (Doc. 25.)

         The undersigned has carefully examined Taylor's Amended Petition for Writ of Habeas Corpus (the “§ 2254 Petition”), the State's 134-page Answer (doc. 33), Taylor's 72-page Reply (doc. 43), all relevant portions of the 59-volume record of the underlying proceedings, Taylor's Exhibits A-H appended to his § 2254 Petition, Taylor's Motion for Discovery and Evidentiary Hearing (doc. 38), the State's Response (doc. 39) to same, and the parties' supplemental briefs concerning the implications of Hurst v. Florida (docs. 46-48). The Court finds that Taylor's § 2254 Petition is ripe for adjudication at this time.

         II. Standard of Review.

         Taylor's federal habeas petition was filed long after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). The applicable statutory framework sets forth three distinct standards of review, depending on whether the state court decided the claim on the merits, whether the state court refused to decide the claim on the merits because it was barred by state procedural rules, or whether the bar on which the state court relied was inadequate to preclude federal review. The Eleventh Circuit has summarized these principles as follows: “[AEDPA] establishes a highly deferential standard of review for federal claims that have been adjudicated on the merits in State court proceedings. … On the other hand, if a state court refused to decide a claim on the merits because the claim was barred by state procedural rules, we are generally, though not always, prevented from reviewing the claim at all. … [R]esting between AEDPA deference and procedural default is a third path. If the state court did not reach the merits of a petitioner's claim based on some ground that is not adequate to bar federal review, we must review the claim de novo.” Williams v. Alabama, 791 F.3d 1267, 1272-73 (11th Cir. 2015).

         Under the highly deferential AEDPA standard, a federal court may not grant habeas relief with respect to any claim adjudicated on the merits in state court unless the state court's determination “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); see also Harrington v. Richter, 562 U.S. 86, 100, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (“Federal habeas relief may not be granted for claims subject to § 2254(d) unless it is shown that the earlier state court's decision was contrary to federal law then clearly established in the holdings of this Court, … or that it involved an unreasonable application of such law, … or that it was based on an unreasonable determination of the facts in light of the record before the state court”) (citations and internal quotation marks omitted). It bears emphasis that the deferential standard of review prescribed by § 2254(d) “is limited to claims that have been ‘adjudicated on the merits' in state court. A decision that is based on state procedural grounds is not an adjudication on the merits.” Williams, 791 F.3d at 1273.

         Where § 2254(d) applies, “the obstacles that a habeas petitioner faces … are daunting.” Evans v. Secretary, Florida Dep't of Corrections, 699 F.3d 1249, 1267 (11th Cir. 2012). In that circumstance, a federal habeas court “may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Greene v. Upton, 644 F.3d 1145, 1154 (11th Cir. 2011) (citation omitted); see also Evans, 699 F.3d at 1269 (“The question is not how the [federal habeas] court … would rule if presented with the issue for the first time and not whether we think the state court decision is correct, but whether its decision is contrary to or an unreasonable application of clearly established federal law.”); Hill v. Humphrey, 662 F.3d 1335, 1355 (11thCir. 2011) (“A federal court may not grant habeas relief on a claim a state court has rejected on the merits simply because the state court held a view different from its own.”).[4] Rather, “[t]o obtain habeas relief a state prisoner must show that the state court's ruling on the claim being presented in the federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Evans v. Secretary, Dep't of Corrections, 703 F.3d 1316, 1326 (1th Cir. 2013) (citations omitted). Under § 2254(d) deference, “only if there is no possibility fairminded jurists could disagree that the state court's decision conflicts with the Supreme Court's precedents may relief be granted.” Johnson v. Secretary, DOC, 643 F.3d 907, 910 (11th Cir. 2011) (citation and internal quotation marks omitted); see also Holsey v. Warden, Georgia Diagnostic Prison, 694 F.3d 1230, 1257 (11th Cir. 2012) (“if some fairminded jurists could agree with the state court's decision, although others might disagree, federal habeas relief must be denied”) (citation omitted). “If this standard is difficult to meet, that is because it was meant to be.” Holsey, 694 F.3d at 1257 (citation omitted); see also Loggins v. Thomas, 654 F.3d 1204, 1220 (11th Cir. 2011) (“[T]he deference due is heavy and purposely presents a daunting hurdle for a habeas petitioner to clear.”).[5] “Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Harrington, 562 U.S. at 102-03 (citation and internal quotation marks omitted).

         As noted, when a state court refuses to decide a federal claim on state procedural grounds, the federal habeas court is generally precluded from reviewing the claim at all. See, e.g., Williams, 791 F.3d at 1273 (“[I]t is well established that federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that is independent of the federal question and adequate to support the judgment.”) (citation omitted); Conner v. Hall, 645 F.3d 1277, 1287 (11th Cir. 2011) (“a federal habeas court will not review a claim rejected by a state court if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment”). If, however, the state court's procedural ruling is not adequate to bar federal review, then the federal habeas court must review the claim de novo, and is not confined to the state-court record. See Williams, 791 F.3d at 1273.

         Section 2254 also generally requires petitioners to exhaust all available state-law remedies. In that regard, “[a] petitioner must alert state law courts to any federal claims to allow the state courts an opportunity to review and correct the claimed violations of his federal rights.” Lamarca v. Secretary, Dep't of Corrections, 568 F.3d 929, 936 (11th Cir. 2009). “[T]o exhaust state remedies fully the petitioner must make the state court aware that the claims asserted present federal constitutional issues.” Lucas v. Secretary, Dep't of Corrections, 682 F.3d 1342, 1352 (11th Cir. 2012); see also Williams v. Allen, 542 F.3d 1326, 1345 (11th Cir. 2008) (exhaustion requirement not satisfied unless “petitioner presented his claims to the state court such that a reasonable reader would understand each claim's … specific factual foundation”) (citation omitted). It is not sufficient “that a somewhat similar state-law claim was made.” Kelley v. Secretary, Dep't of Corrections, 377 F.3d 1317, 1344-45 (11th Cir. 2004). Nor is it sufficient for a petitioner to present federal claims to the state trial court; rather, “the petitioner must fairly present every issue raised in his federal petition to the state's highest court, either on direct appeal or on collateral review.” Powell v. Allen, 602 F.3d 1263, 1269 (11th Cir. 2010) (citation and internal marks omitted); see also Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010) (“Exhaustion requires that state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.”) (citations and internal quotation marks omitted). That said, “habeas petitioners are permitted to clarify the arguments presented to the state courts on federal collateral review provided that those arguments remain unchanged in substance.” Kelley, 377 F.3d at 1344.

         III. Procedural Default Issues.

         A. State Courts' Denial of Leave to File Second Amended Rule 32 Petition.

         A critical threshold issue in the adjudication of Taylor's § 2254 Petition is whether this Court may properly hear certain claims that Taylor presented to the state courts solely in the form of a Proposed Second Amended Rule 32 Petition (the “Second Amended R32 Petition”). The state courts disallowed Taylor's Second Amended R32 Petition on state procedural grounds; therefore, the new claims that Taylor sought to raise via that iteration of his Rule 32 petition were never adjudicated on the merits by the state courts. 1. The State Court Rulings.

         To recap the state postconviction proceedings, on May 6, 2003, Taylor filed a 124-page, 264-paragraph Corrected First Amended Rule 32 Petition (the “Corrected First Amended R32 Petition”) in Mobile County Circuit Court. (Vol. 22, R-56.) On October 23, 2003, Mobile County Circuit Judge Herman Thomas entered a batch of four orders summarily dismissing particular aspects of the Corrected First Amended R32 Petition on grounds of Rule 32.2(a) procedural bar (Vol. 53, R-117), untimeliness under Rule 32.2(c) limitations period (Vol. 53, R-118), insufficient pleading under Rules 32.3 and 32.6(b) (Vol. 53, R-119), and failure to present material issues of fact or law under Rule 32.7(d) (Vol. 53, R-120).

         Nearly two years later, on August 1, 2005, Judge Thomas entered a three-page “Final Order” in which he found that “all of the claims in Petitioner Taylor's corrected first amended Rule 32 petition have been dismissed” and ordered, adjudged and decreed that such petition was dismissed. (Vol. 53, R-122.) After a somewhat circuitous series of appeals, the Alabama Court of Criminal Appeals issued an order on October 1, 2010, in which it concluded that because certain “claims remained pending after the circuit court entered the orders of partial dismissal, the circuit court erred in entering its August 1, 2005, final order summarily dismissing the petition in its entirety; we therefore remand the cause to the trial court for resolution of the pending claims.” (Vol. 53, R-128, at 10.) The state appellate court also considered and rejected each of Taylor's numerous arguments on appeal concerning the claims dismissed by the circuit court via the quartet of October 2003 orders. (Id. at 10-19.) Ultimately, the Alabama Court of Criminal Appeals concluded its October 1, 2010 order as follows:

“[T]his cause is remanded to the circuit court for resolution of those claims that the parties agreed had not been dismissed by the orders of partial dismissal; Taylor is entitled to the opportunity to prove the allegations in those claims and to establish that he is entitled to relief. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 90 days of the release of this opinion.
“We affirm the circuit court's judgment as to remaining issues raised by Taylor in his brief on appeal.”

(Id. at 19.)[6]

         On the heels of this limited remand to the Mobile County Circuit Court, Taylor filed a “Motion for Leave to File the Second Amended Petition for Relief from Judgment Pursuant to Rule 32” (Vol. 34, R-93, at 267-80), on September 19, 2011. Taylor appended to this motion his proposed Second Amended R32 Petition, which numbered 171 pages and 397 paragraphs (an increase of some 47 pages and 133 paragraphs relative to its predecessor, which was itself the third iteration of Taylor's Rule 32 petition). (Vols. 34 & 35, R-93, at 283-460.) In comparison with the First Amended R32 Petition, the proposed Second Amended R32 Petition would have injected more than a dozen new (or greatly expanded) claims into Taylor's Rule 32 proceedings.[7]Via Order dated October 20, 2011, however, Mobile County Circuit Judge Michael Youngpeter granted the State's motion to strike the proposed Second Amended R32 Petition. (See Vol. 53, R-129.) In so doing, Judge Youngpeter relied on Hyde v. State, 894 So.2d 808 (Ala.Crim.App. 2004), for the proposition that “the normal rules for freely allowing amendment of a Rule 32 petition before judgment did not apply because the circuit court's jurisdiction was limited on remand to the appellate court's directive.” (Vol. 53, R-129, at 693.) On the strength of Hyde and in light of the specific contours of the appellate court's limited remand in Taylor's case, Judge Youngpeter concluded that he lacked jurisdiction to consider the proposed amendments because “[t]he Court detects no instruction which would allow it to permit amendments to Taylor's petition on remand, either to supplement those specific claims or to add new ones.” (Id. at 694.) Taylor sought mandamus review of this ruling, claiming that it contravened Ex parte Apicella, 87 So.3d 1150 (Ala. 2011); however, the Alabama Court of Criminal Appeals affirmed the circuit court, and distinguished Apicella. (Vol. 53, R-130.)[8]

         Undaunted, Taylor took one more run at amending his Rule 32 petition in the Mobile County Circuit Court. On April 9, 2012, he filed a Motion for Leave to File Revised Second Amended Petition (Vol. 46, R-101). In the Motion, Taylor explained that his proposed Revised Second Amended R32 Petition was identical to the originally proposed Second Amended R32 Petition, except for newly added paragraphs 23-25, 162, 362-70 and 411-20. (Id. at 865.)[9]Taylor maintained that these new paragraphs “arise from facts contained in a written statement recently provided to the undersigned counsel by Bryann Scott Clark, ” and that “[i]t was only on April 5, 2012 that Mr. Clark finally provided the document to one of Mr. Taylor's attorneys.” (Id. at 867-68.) The circuit court denied the motion, for the same jurisdictional reasons that had prompted him to deny Taylor's predecessor motion to amend. In an ensuing memorandum opinion released on April 26, 2013, the Alabama Court of Criminal Appeals again addressed Taylor's renewed arguments that Judge Youngpeter should have allowed the Second Amended R32 Petition and the Revised Second Amended R32 Petition, as follows:

“Taylor's interpretation of the remand directions issued by this Court is strained, and it is inaccurate. … [T]he scope of our remand was very limited, and if the circuit court had allowed Taylor to file an amended petition, it would have exceeded the scope of those limited directions. Taylor has presented no legitimate basis for a reconsideration of the analysis or the conclusion in the mandamus order. Our remand instructions in the original opinion were clear, and they provided only for resolution of certain claims filed in the first amended petition. The circuit court correctly interpreted those directions, and it correctly interpreted the order denying Taylor's request for mandamus relief.”

(Vol. 53, R-134, at 23-24.)

         2. Applicable Legal Principles.

         In his § 2254 Petition, Taylor seeks to pursue as federal habeas claims many (if not all) of the new claims pleaded in the Second Amended R32 Petition and Revised Second Amended R32 Petition that were disallowed by the state courts. The State objects to all such claims on failure-to-exhaust grounds. Technically and as recognized by Taylor (see doc. 43, at 8 n.2), the State's objection is properly framed in the terminology of the related doctrine of procedural default, rather than exhaustion.[10] “Under the doctrine of procedural default, a federal habeas court will not review a claim rejected by a state court if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Conner, 645 F.3d at 1287 (citation and internal quotation marks omitted); see also Boyd v. Commissioner, Alabama Dep't of Corrections, 697 F.3d 1320, 1335 (11th Cir. 2012) (“As a general rule, a federal habeas court may not review state court decisions on federal claims that rest on state law grounds, including procedural default grounds, that are ‘independent and adequate' to support the judgment.”).[11] Simply put, “if a state court refused to decide a claim ‘on the merits' because the claim was barred by state procedural rules, we are generally, though not always, prevented from reviewing the claim at all.” Williams, 791 F.3d at 1272-73.

         To ascertain whether a state court's procedural ruling constitutes an independent and adequate state rule of decision, federal habeas courts examine whether the following three requirements are satisfied: (i) “the last state court rendering a judgment in the case must clearly and expressly say that it is relying on state procedural rules to resolve the federal claim without reaching the merits of the claim;” (ii) “the state court decision must rest solidly on state law grounds;” and (iii) “the state procedural rule must be adequate; i.e., it may not be applied in an arbitrary or unprecedented fashion.” Boyd, 697 F.3d at 1336 (citations omitted). “We defer to the state court's findings regarding procedural default.” Ferguson v. Secretary for Dep't of Corrections, 580 F.3d 1183, 1193 (11th Cir. 2009); see also Ziegler v. Crosby, 345 F.3d 1300, 1304 (11th Cir. 2003) (similar).

         3. Discussion.

         The State's position is that all new claims asserted by Taylor in the proposed Second Amended R32 Petition and Revised Second Amended R32 Petition are procedurally defaulted, and therefore barred from federal habeas review in these § 2254 proceedings, because the state courts' rejection of those claims was based on an independent and adequate state procedural rule.

         Again, the state courts refused to allow or adjudicate the merits of Taylor's Second Amended R32 Petition (or Revised Second Amended R32 Petition) based on their determination that the Mobile County Circuit Court lacked jurisdiction to allow Taylor to amend his Rule 32 petition following the Court of Criminal Appeals' limited remand order dated October 1, 2010. The October 1 ruling had two critical components, to-wit: (i) it remanded Taylor's Rule 32 action to the circuit court “for resolution of those claims that the parties agreed had not been dismissed by the orders of partial dismissal;” and (ii) it “affirm[ed] the circuit court's judgment as to remaining issues raised by Taylor in his brief on appeal.” (Vol. 53, R-128, at 19.) The determination that the circuit court lacked jurisdiction to allow Taylor to amend his Rule 32 petition post-remand was firmly rooted in an Alabama procedural rule that “[o]n remand, the issues decided by the appellate court become law of the case and the trial court's duty is to comply with the appellate mandate according to its true intent and meaning, as determined by the directions given by the reviewing court.” Hyde v. State, 894 So.2d 808, 810 (Ala.Crim.App. 2004) (citation and internal quotation marks omitted). A corollary of that rule is that “any act by a trial court beyond the scope of an appellate court's remand order is void for lack of jurisdiction.” S.A.R. v. State, 99 So.3d 1260, 1264 (Ala.Crim.App. 2012) (citation omitted).[12]

         Alabama appellate courts have repeatedly applied these principles to hold that a trial court lacks authority to allow an amendment of a Rule 32 petition on limited remand from an Alabama appellate court. See, e.g., Hyde, 894 So.2d at 810 (“The circuit court was limited to the scope of our remand order. Here, the circuit court exceeded that scope in directing Hyde to supplement and amend his Rule 32 petition. Therefore, the action taken in the circuit court is void for lack of jurisdiction.”).[13] This is precisely what the state courts did in refusing to hear the merits of any new claims in Taylor's proposed Second Amended R32 Petition. Judge Youngpeter specifically relied on Hyde and the terms of the appellate court's limited remand in determining that he lacked authority to allow those new claims, and the Alabama Court of Criminal Appeals affirmed that determination, reasoning that had the circuit court allowed such an amendment, “he would be acting beyond the scope of our remand instructions, ” such that his ruling would have been void. (Vol. 53, R-130 at 2.) The same appellate court echoed those sentiments in affirming Judge Youngpeter's refusal to allow the Revised Second Amended R32 Petition. (See Vol. 53, R-34, at 23-24.) The State thus has a compelling argument that the Alabama courts' disallowance of Taylor's September 2011 and April 2012 iterations of his amended R32 petition on procedural grounds falls squarely within the parameters of an independent and adequate state procedural rule, thereby constituting a procedural default from which federal habeas review does not properly lie.

         In response, Taylor leans heavily on the third prong of the procedural default test, to-wit: the requirement that “the state procedural rule must be adequate; i.e., it may not be applied in an arbitrary or unprecedented fashion.” Boyd, 697 F.3d at 1336 (citation omitted); see also Upshaw v. Singletary, 70 F.3d 576, 579 (11th Cir. 1995) (“In order to be ‘adequate, ' the rule must not have been applied by the state court in an inconsistent or manifestly unfair manner.”) (citations and footnote omitted). What this means is that “a state procedural rule cannot bar federal habeas review of a claim unless the rule is ‘firmly established and regularly followed.'” Boyd, 697 F.3d at 1336 (citations omitted). “The adequacy of a state procedural bar to the assertion of a federal question is itself a federal question.” Conner, 645 F.3d at 1287.

         The gravamen of Taylor's argument is that the state courts' refusal to allow him to file his Second Amended R32 Petition and Revised Second Amended R32 Petition was “contrary to the State's firmly-established and regularly followed procedural rules.” (Doc. 43, at 8.) Taylor is wrong. As discussed supra, the Alabama courts held that the Mobile County Circuit Court lacked jurisdiction to allow Taylor to amend his Rule 32 petition in September 2011 and April 2012 because (i) the Rule 32 proceedings returned to Mobile County Circuit Court in October 2010 on limited remand from the Alabama Court of Criminal Appeals, which had affirmed the Circuit Court's judgment in many respects but remanded for the narrow purpose of resolving certain specifically enumerated claims; (ii) nothing in the appellate court's remand order would have authorized amendment of Taylor's Rule 32 petition to allow him to inject new and additional claims into the state post-conviction proceedings; and (iii) under well-settled Alabama law, any act by a trial court beyond the scope of an appellate court's remand order is void for lack of jurisdiction. The Alabama courts' rejection of Taylor's post-remand requests to amend his Rule 32 petition on grounds that the Circuit Court lacked jurisdiction to allow same was fully consistent with a substantial line of Alabama appellate authority in which amendments have been disallowed under similar circumstances for similar reasons. See, e.g., Ward v. State, __So.3d __, 2017 WL 543138, *4 n.2 (Ala.Crim.App. Feb. 10, 2017) (where Alabama Supreme Court “limited the remand proceedings to the issue of equitable tolling …, the circuit court correctly prohibited any amendment to Ward's petition that addressed issues that were outside the scope of the Supreme Court's remand instructions”); Morrissette v. State, 183 So.3d 1009, 1012 n.3 (Ala.Crim.App. 2014); Bryant v. State, 181 So.3d 1087, 1136 (Ala.Crim.App. 2014); S.A.R. v. State, 99 So.3d 1260, 1264 (Ala.Crim.App. 2012); Hyde v. State, 894 So.2d 808, 810 (Ala.Crim.App. 2004).

         In view of these authorities, the Court readily concludes that the state procedural bar was “adequate, ” in the sense that the rule in question was firmly established, regularly followed, and not applied in an arbitrary or unprecedented fashion against Taylor.[14] On limited remand from the Alabama Court of Criminal Appeals, the Mobile County Circuit Court lacked jurisdiction to allow Taylor to amend his Rule 32 petition in late 2011 and early 2012, such that any ruling authorizing such amendments would have been void under Alabama law. Thus, Taylor's new claims presented in the Second Amended R32 Petition and Revised Second Amended R32 Petition are procedurally defaulted, and federal habeas review of same is unavailable.[15]

         B. Rule 28(a)(10).

         Another critical, disputed issue of procedural default in this case involves the application of Rule 28(a)(10) of the Alabama Rules of Appellate Procedure to Taylor's claims. That state procedural rule provides, in relevant part, that an appellant's brief must include “[a]n argument containing the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on.” Rule 28(a)(10), Ala.R.App.P. The State's position is that various of Taylor's habeas claims are barred from federal habeas review because the Alabama courts dismissed them not on the merits, but for noncompliance with Rule 28(a)(10) (i.e., based on the inadequacy of Taylor's appellate brief).

         1. The State Court Rulings.

         In its opinion on state post-conviction review entered on October 1, 2010, the Alabama Court of Criminal Appeals paused before addressing the merits, explaining that “we are compelled to address whether a majority of the arguments Taylor presents in his brief on this issue comply with Rule 28(a)(10), Ala. R.App. P.” (Vol. 53, R-128, at 14.) The appellate court proceeded to make the following determinations, among others, in applying Rule 28(a)(10) to Taylor's appellate brief: (i) “Parts III.C.2. - III.C.5. and portions of Part III.D. of Taylor's brief consist almost entirely of scant summaries of the claims from Taylor's petition that, he says, should not have been summarily dismissed” (Vol. 53, R-128, at 14); (ii) “Making a nonspecific reference to ‘extensive legal arguments' in the Rule 32 petition does not comply with Rule 28(a)(10)” (id.); (iii) “in many of the arguments in Parts III.C. and III.D. of his brief, Taylor makes only general allegations and refers only to paragraphs of the petition without presenting any substantive legal or factual argument at all” (id.); and (iv) “many ‘arguments' in Taylor's brief consist of little more than a cursory summary of the claims from the petition” (id. at 15).[16]

         After careful examination of the requirements of Rule 28(a)(10), as interpreted by Alabama appellate courts, and the contents of Taylor's brief (referencing specific examples of briefing inadequacies), the Alabama Court of Criminal Appeals ruled that Taylor's appellate briefing fell short of that procedural rule in numerous respects. In particular, the appellate court held as follows:

“Clearly, Taylor's cursory summary of the allegations of the petition - with a citation only to the paragraphs of the petition in many arguments of the brief, and in other portions of the brief only to paragraphs of the petition and undelineated general principles of law - does not comport with Rule 28(a)(10). For many of the issues raised in the brief, Taylor presents no discussion of the facts or the law in the form of an argument demonstrating why the circuit court's dismissal of the specific claims was in error. Accordingly, we hold that Taylor has waived for purposes of appellate review in this Court those arguments in his brief … that fail to comply with the requirements of Rule 28(a)(10).”

(Vol. 53, R-128, at 16.) In so concluding, the Alabama Court of Criminal Appeals found that the following categories of arguments in Taylor's appellate brief were waived for noncompliance with Rule 28(a)(10): “III.C.1 - death by lethal injection; III.C.2 (a)-(h); III.D.2 (a)-(r); and III.D.3(b) - ineffective assistance of counsel; III.C.3(a); III.D.3(a)-(b) - the jury was not impartial; III.C.4 (a)-(c) - the judge was not impartial; III.C.5 - prosecutorial misconduct; III.D.1(c) and (e) - constitutionality of the death penalty; and III.D.4(a)-(d) - capital sentencing, voir dire, rulings at trial.” (Id.)[17]

         The result of this determination was that the Alabama Court of Criminal Appeals deemed Taylor's appellate arguments on all of these issues waived, and engaged in no merits analysis or discussion of any of them. At most, the appellate court observed in passing that “having reviewed Taylor's petition thoroughly - along with the circuit court's orders and the record in this case, even if we had addressed what we understand to have been Taylor's arguments in his brief to this Court, we would nonetheless affirm the circuit court's dismissal of each of those claims.” (Vol. 53, R-128, at 16-17.)[18]

         2. Applicable Legal Principles.

         Again, the basic thrust of Rule 28(a)(10) is its requirement that an appellant's brief must set forth “[a]n argument containing the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on.” Rule 28(a)(10), Ala.R.App.P. “The purpose of Rule 28, Ala.R.App.P., outlining the requirements for appellate briefs, is to conserve the time and energy of the appellate court and to advise the opposing party of the points he or she is obligated to make.” Ex parte Borden, 60 So.3d 940, 943 (Ala. 2007). After all, the Alabama Supreme Court has explained, “[i]t is not the function of this Court to do a party's legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.” Id. (citations omitted); see also Wagner v. State, __ So.3d __, 2015 WL 5658730, *2 n.3 (Ala. Sept. 25, 2015) (“It is well settled that it is not the function of this Court to create legal arguments for the parties before us.”). As such, “[t]o obtain review of an argument on appeal, an appellant must provide citations to relevant cases or other legal authorities and an analysis of why those cases or other authorities support an argument that an error occurred and that the alleged error should result in reversal.” Alonso v. State, __So.3d__, 2016 WL 661274, *13 (Ala.Crim.App. Feb. 12, 2016) (citations omitted).

         Alabama appellate courts have frequently applied Rule 28(a)(10) (and its predecessor, Rule 28(a)(5)) to find a waiver of arguments presented on appeal where an appellant has failed to offer specific legal authority, argument and adequate factual recitation to support the contention that the trial court's ruling was erroneous. See, e.g., Alonso, 2016 WL 661274, at *13-15; C.B.D. v. State, 90 So.3d 227, 239 (Ala.Crim.App. 2011) (“Failure to comply with Rule 28(a)(10) has been deemed a waiver of the issue presented.”).[19] Furthermore, federal habeas courts have routinely deemed claims to be procedurally defaulted where the state courts dismissed them pursuant to a Rule 28(a)(10) waiver. See, e.g., James v. Culliver, 2014 WL 4926178, *14 (N.D. Ala. Sept. 30, 2014) (“If a petitioner fails to comply with this rule, any issue(s) not briefed will be deemed to have been waived. … Moreover, Rule 28(a)(10), as well as its predecessor Rule 28(a)(1), were firmly established and regularly followed.”).[20]

         That said, Alabama law specifies that Rule 28(a)(10) is not to be liberally or gratuitously applied in the interests of convenience or expedience to whittle down a voluminous appeal. Indeed, the Alabama Supreme Court has cautioned that “waiver of an argument for failure to comply with Rule 28(a)(10) … has been limited to those cases where there is no argument presented in the brief and there are few, if any, citations to relevant legal authority, resulting in an argument consisting of undelineated general propositions.” Borden, 60 So.3d at 944.[21]

         3. Discussion.

         As set forth supra, the Alabama Court of Criminal Appeals determined that Taylor's arguments on appeal relating to two dozen claims presented his First Amended R32 Petition had been waived by virtue of his non-compliance with Rule 28(a)(10). In these § 2254 proceedings, the State asserts that the Court of Criminal Appeals' application of the Rule 28(a)(10) waiver doctrine to Taylor's claims constitutes an adequate, independent state procedural ruling that bars federal habeas review. For his part, Taylor urges the Court to find no procedural default, reasoning that the Alabama appellate court's reliance on Rule 28(a)(10) in his state post-conviction appeal proceedings flunks the federal requirement that “the state procedural rule must be adequate; i.e., it may not be applied in an arbitrary or unprecedented fashion.” Boyd, 697 F.3d at 1336 (citation omitted); see also Upshaw v. Singletary, 70 F.3d 576, 579 (11th Cir. 1995) (“In order to be ‘adequate, ' the rule must not have been applied by the state court in an inconsistent or manifestly unfair manner.”) (citations and footnote omitted). Again, this requirement means that “a state procedural rule cannot bar federal habeas review of a claim unless the rule is ‘firmly established and regularly followed.'” Boyd, 697 F.3d at 1336 (citations omitted). “The adequacy of a state procedural bar to the assertion of a federal question is itself a federal question.” Conner, 645 F.3d at 1287.

         The centerpiece of Taylor's “adequacy” argument is that Alabama appellate authorities confirm that his Rule 32 appellate brief actually did comport with Rule 28(a)(10). Specifically, Taylor likens his state post-conviction brief to that deemed sufficient in Ex parte Borden. (Doc. 43, at 16-18.) In that case, the Alabama Supreme Court found error in the Alabama Court of Criminal Appeals' determination of waiver pursuant to Rule 28(a)(10), where the petitioner's appellate brief “included 22 pages of fact addressing whether the trial court erred in summarily dismissing the ineffective-assistance-of-counsel claims … [and] 11 pages of argument regarding ineffective assistance, including some 25 citations to caselaw, along with explanations and quotations from the cited cases. … Borden's brief is sufficient to apprise the Court of Criminal Appeals of Borden's contentions with regard to his ineffective-assistance-of-counsel claims.” Borden, 60 So.3d at 944.

         A fundamental problem with Taylor's contention that his state post-conviction appellate brief actually did comport with Rule 28(a)(10) is that he presents that assertion only in the most general and conclusory of terms.[22] Petitioner does not identify specific issues presented in his Rule 32 appellate brief and explain why he thinks the Court of Criminal Appeals misapplied Rule 28(a)(10) to find a waiver as to those specific matters as presented in his appellate brief. The result is that Taylor appears to have missed the point as to exactly why the Alabama appellate court deemed those aspects of his Rule 32 appellate brief to be insufficiently presented for purposes of Rule 28(a)(10). Three examples culled from the pages of the Alabama Court of Criminal Appeals' decision will illustrate the point.

         First, in Claim IV.B.6 of his Corrected First Amended R32 Petition, Taylor alleged ineffective assistance of trial counsel in “fail[ing] to make contemporaneous objections to throughout [sic] the trial to Court errors and numerous acts and omissions of the State and its witnesses.” (Vol. 22, R-56 at 915.) In October 2003, the circuit judge dismissed Claim IV.B.6 as insufficiently pleaded under Rules 32.3 and 32.6(b) of the Alabama Rules of Criminal Procedure. (Vol. 53, R-119, at 2.)[23] Taylor appealed that ruling. In order to satisfy Rule 28(a)(10) as to that particular issue, Taylor was obliged to include in his appellate brief an adequate recitation of facts relied on, citations to relevant legal authorities, and an analysis of why those authorities support an argument of reversible error. See, e, g., Alonso, 2016 WL 661274, at *13. Instead, Taylor's appellate brief on this claim consisted of a general, minimally supported description of the provisions of Rules 32.3 and 32.6(b) (Vol. 31, R-89, at 39-41), coupled with a vague assertion that “Claim IV.B.6 lists many specific errors to which trial counsel should have objected. (C. 915.) It alleges in detail grounds for relief and the underlying facts.” (Id. at 54-55.) That is all.

         Second, in Claim IV.B.9 of his Corrected First Amended R32 Petition, Taylor alleged that “trial counsel was ineffective in part because of grossly inadequate compensation.” (Vol. 22, R-56 at 918.) In October 2003, the circuit judge dismissed Claim IV.B.9 as insufficiently pleaded under Rules 32.3 and 32.6(b). (Vol. 53, R-119, at 3.) Taylor appealed. In order to satisfy Rule 28(a)(10) as to that particular issue, Taylor was obliged to include in his appellate brief an adequate recitation of facts relied on, citations to relevant legal authorities, and an analysis of why those authorities support an argument of reversible error. Instead, Taylor's appellate brief on this claim consisted of a general, minimally supported description of the provisions of Rules 32.3 and 32.6(b) (Vol. 31, R-89, at 39-41), coupled with a conclusory assertion that “Claim IV.B.9 sets forth the statutory maximum compensation that court-appointed attorneys in capital cases could have earned at the time of Mr. Taylor's trial and then provides substantial case law to show that this level was inadequate. (C. 918-919.)” (Id. at 55.) Petitioner's brief said nothing further on this issue.

         Third, in Claim VII.C of his Corrected First Amended R32 Petition, Taylor maintained that “the evidence as to the ‘heinous, atrocious or cruel' aggravating circumstance is insufficient as a matter of law.” (Vol. 22, R-56 at 949.) In October 2003, the circuit judge dismissed Claim VII.C pursuant to Rule 32.7(d) of the Alabama Rules of Criminal Procedure because it presented “no material issues of fact or law.” (Vol. 53, R-120, at 1, 4.)[24] Taylor appealed. In order to satisfy Rule 28(a)(10) as to that particular issue, Taylor was obliged to include in his appellate brief an adequate recitation of facts relied on, citations to relevant legal authorities, and an analysis of why those authorities support an argument of reversible error. What Taylor presented, however, was a conclusory statement that the circuit court's order was erroneous in its entirety because “each and every one of the claims and allegations dismissed presents a material issue of law” (Vol. 31, R-89, at 59), as well as a singular contention that the claim presented in Claim VII.C “is supported by nearly four pages of legal argument supported by facts and presents material questions of law” (id. at 74). Taylor's Rule 32 appellate brief lacked any further explanation or argument regarding that claim.

         Considered in the context of these three specific examples (which are representative of the kinds of arguments presented in Taylor's Rule 32 appellate brief that the Alabama Court of Criminal Appeals deemed insufficient under Rule 28(a)(10)), the state appellate court's conclusion that Taylor's briefing on these issues flunks Rule 28(a)(10) is reasonable. Recall that the Alabama Court of Criminal Appeals lamented that Taylor made “only general allegations and refer[red] only to paragraphs of the petition without presenting any substantive legal or factual argument at all in an attempt to demonstrate that the circuit court erred when it dismissed those claims.” (Vol. 53, R-128, at 14.) That court accurately characterized Taylor's appellate brief as featuring “many ‘arguments' … [that] consist of little more than cursory summary of the claims from the petition.” (Id. at 15.) And it properly remarked that “[f]or many of the issues raised in the brief, Taylor presents no discussion of the facts or the law in the form of an argument demonstrating why the circuit court's dismissal of the specific claims was in error.” (Id. at 16.)

         Again, the purpose of Rule 28(a)(10) is to require appellants to do their own heavy lifting, and in this manner to obviate the need for state appellate courts to perform an appellant's research for him, to generate and develop an appellant's arguments for him, or to engage in guesswork or speculation as to why - exactly - the appellant believes the lower court got it wrong. The authorities cited in the Alabama Court of Criminal Appeals' ruling in Taylor's case emphasize the point. (Vol. 53, R-128, at 14-15.) It was incumbent on Taylor, as the appellant, to explain in his appellate brief in specific terms (both legally and factually) why he believed it was reversible error for Circuit Judge Thomas to conclude that the enumerated claims flunked Taylor's “heavy pleading burden” under Rules 32.3 and 32.6, and/or failed to present material issues of fact or law under Rule 32.7(d). Rather than explaining in specific terms in his appellate brief which aspects of each claim he felt were sufficient to satisfy the aforementioned procedural rules, or identifying case authorities relating to these procedural rules that might support his theory that the circuit court had misapplied them, Taylor instead elected to present his appellate “arguments” at a high degree of abstraction and in conclusory form, mostly leaving the Alabama Court of Criminal Appeals to its own devices to figure out why, specifically, he contended that each enumerated claim complied with the terms of Rules 32.3, 32.6 and 32.7(d), and why he contended that the circuit judge's ruling to the contrary was incorrect. Under these circumstances, the Court does not find that there was anything arbitrary or manifestly unfair about the Alabama Court of Criminal Appeals' rejection of his appellate arguments on various issues for noncompliance with Rule 28(a)(10).[25]

         In the alternative, Taylor posits that the Rule 28(a)(10) waiver is not an adequate, independent state ground barring federal habeas review because “Rule 28(a)(10) is not and was not firmly established and regularly followed.” (Doc. 43, at 18.)[26] To support this proposition, Taylor balks that Alabama courts do not strictly enforce Rule 28(a)(10), and cites a half-dozen cases in which he says they did not. (Id. at 18-19.) Taylor does not explain, however, why he equates the “firmly established and regularly followed” requirement with the premise that a rule must be stringently applied in every case without exception. Case law is to the contrary. See, e.g., Walker v. Martin, 562 U.S. 307, 320, 131 S.Ct. 1120, 179 L.Ed.2d 62 (2011) (“A discretionary rule ought not be disregarded automatically upon a showing of seeming inconsistencies. Discretion enables a court to home in on case-specific considerations and to avoid the harsh results that sometimes attend consistent application of an unyielding rule.”) (footnote and citation omitted).[27] “A state ground, no doubt, may be found inadequate when discretion has been exercised to impose novel and unforeseeable requirements without fair or substantial support in prior state law.” Id. (citations and internal quotation marks omitted).

         Taylor does not, and cannot reasonably, argue that the Alabama Court of Criminal Appeals' application of Rule 28(a)(10) here was “novel, ” “unforeseeable” or devoid of “fair or substantial support in prior state law.” Instead, he simply argues that the rule has not been applied in every single case where it might be, because sometimes Alabama appellate courts exercise their discretion to overlook technical violations of Rule 28(a)(10) and reach the merits of particular claims anyway. Under the Supreme Court's holding in Walker v. Martin, however, that kind of purported “inconsistency” does not amount to inadequacy of the procedural rule to constitute procedural default.[28]

         Finally, Taylor balks that the state courts' application of Rule 28(a)(10) to his appellate brief “was contrary to both Alabama Supreme Court precedent and the stated policy rationale for Rule 28(a)(10).” (Doc. 43, at 20.) In so arguing, Taylor relies on the Alabama Supreme Court's decision in Borden; however, such reliance is misplaced. The Borden Court recognized that Rule 28(a)(10) is violated where an appellant's brief presents “an argument consisting of undelineated general propositions, ” the effect of which is improperly to shift to the appellate court the function of “mak[ing] and address[ing] legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.” Borden, 60 So.3d at 943-44. It was entirely reasonable of the Alabama Court of Criminal Appeals to conclude that Taylor's brief did precisely that as to the enumerated claims. From Taylor's cursory summaries of his petition and his conclusory, unsupported general assertions that those claims satisfied the subject procedural rules for noncompliance with which the circuit court had dismissed them, Taylor furnished no road map for the appeals court and provided no specific, concrete explanations for why he felt the circuit court was wrong on a claim-by-claim basis. Instead, the broad, sweeping generalizations advanced in his appellate brief essentially told the Alabama Court of Criminal Appeals, “If you go read my whole petition and do the research yourself, you will figure it out and you will see that I actually did follow Rules 32.3, 32.6 and 32.7(d) and that the circuit court erred.” The whole purpose of Rule 28(a)(10) is to prevent litigants from shifting that kind of workload onto the appellate courts to identify and develop the specific legal and factual predicate for an appellant's claim that the lower court got it wrong.[29]As such, the Court perceives nothing arbitrary or manifestly unfair about the Alabama Court of Criminal Appeals' application of Rule 28(a)(10) as a procedural bar of consideration of various issues presented on appeal in Taylor's state post-conviction proceedings.

         In sum, then, the Alabama Court of Criminal Appeals' procedural dismissal of these claims was based on an independent and adequate state ground. Such claims are procedurally defaulted from federal habeas review. See generally Smith v. Texas, 550 U.S. 297, 313, 127 S.Ct. 1686, 167 L.Ed.2d 632 (2007) (“As a general matter, and absent some important exceptions, when a state court denies relief because a party failed to comply with a regularly applied and well-established state procedural rule, a federal court will not consider that issue.”).

         C. Rule 32.2(a)(3) & (5).

         The State has also asserted that various claims presented in Taylor's § 2254 petition are procedurally barred because the Alabama courts rejected them on state post-conviction review pursuant to Rule 32.2(a), Ala.R.Crim.P. That rule provides, in part, that a Rule 32 petitioner “will not be given relief under this rule based upon any ground … [w]hich could have been but was not raised at trial, ” or “[w]hich could have been but was not raised on appeal, ” subject to an exception that has no application here. Rule 32.2(a)(3) & (5), Ala.R.Crim.P.

         Alabama courts have routinely applied this rule to bar consideration in Rule 32 proceedings of grounds for relief that could have been, but were not, raised at trial and/or on direct appeal. See, e.g., Moody v. State, 95 So.3d 827, 843 (Ala.Crim.App. 2011) (“[T]he circuit court correctly found that all of Moody's claims regarding pretrial counsel's effectiveness are precluded by Rule 32.2(a)(3) and (a)(5), because they could have been, but were not, raised and addressed at trial and then on appeal. Therefore, summary dismissal of those claims was proper.”) (footnote omitted).[30] And binding authorities on federal habeas review have “squarely held that claims barred under Rule 32.2(a)(3) and (a)(5) are procedurally defaulted from federal habeas review.” Boyd v. Commissioner, Alabama Dep't of Corrections, 697 F.3d 1320, 1335 (11th Cir. 2012); see also Brownlee v. Haley, 306 F.3d 1043, 1066 (11th Cir. 2002) (“The district court correctly determined that the claims regarding the alleged failures to swear Goodgame and transcribe the full trial are procedurally defaulted under Rules 32.2(a)(3) and (5) because they were not raised either at trial or on appeal.”).

         In Taylor's Rule 32 proceedings, Circuit Judge Thomas dismissed various claims raised in the Corrected First Amended R32 Petition as barred under Rules 32.2(a)(3) and (5). The Alabama Court of Criminal Appeals affirmed some of those dismissals on Rule 32.2(a) grounds, in many instances without identifying the subsections of Rule 32.2(a) on which it was relying. There was not a single claim for which the Alabama appellate court expressly stated it was affirming the dismissal because of Taylor's failure to raise the issue at trial and on direct appeal (i.e., violation of both Rule 32.2(a)(3) and (5)). This creates an obvious problem for application of the adequate state ground doctrine, which requires, inter alia, that “the last state court rendering a judgment in the case must clearly and expressly say that it is relying on state procedural rules to resolve the federal claim without reaching the merits of the claim.” Boyd, 697 F.3d at 1336 (citations omitted). Here, the difficulty is that the appellate court did not specify which state procedural rules it was relying on, other than a generic reference to Rule 32.2(a), which is not sufficient because some of the subsections of that rule would constitute a federal procedural bar, while others would not.[31]

         To compound the confusion and uncertainty, Taylor correctly points out that the State's Answer (doc. 33) to his § 2254 petition does not expressly call for rejection of specific claims in that petition based on the procedural bar created by Rule 32.2(a)(3) and Rule 32.2(a)(5). The closest the State comes is, in the context of Taylor's Batson claim predicated on alleged gender-based strikes (Claim I), an argument that “the circuit court properly dismissed this claim because it could have been raised at trial (Rule 32.2(a)). The Court of Criminal Appeals affirmed, holding that this claim was properly dismissed on the basis of Rule 32.2(a).” (Doc. 33, at 29-30.) The State's Answer says nothing about dismissal of the claim for noncompliance with Rule 32.2(a)(5), and does not argue for imposition of a procedural bar based on violations of Rules 32.2(a)(3) and (a)(5).[32]

         Because of the murkiness in the Alabama Court of Criminal Appeals treatment of the Rule 32.2(a) issue in this case, coupled with the State's lack of clarity in its Answer in not specifically arguing that any of Taylor's federal habeas claims are procedurally barred under Rules 32.2(a)(3) and (a)(5), this Court will not deem the subject claims procedurally defaulted on that ground for purposes of federal habeas review. See, e.g., Smith v. Secretary, Dep't of Corrections, 572 F.3d 1327, 1340 (11th Cir. 2009) (“If, on the other hand, the petitioner did raise the claim in the state courts but not at the time or in the manner required by state procedural rules, the resulting procedural bar defense may be waived by the State's failure to assert it.”); Bennett v. Fortner, 863 F.2d 804, 807 (11th Cir. 1989) (“When a federal court is unable to determine whether or not the state court is applying a procedural bar, this court will reach the merits of the case.”).

         D. Whether Taylor's Procedural Default May Be Excused.

         The net result of the foregoing discussion is that a significant subset of Taylor's federal habeas claims set forth in his § 2254 petition are procedurally defaulted because those claims were (i) presented to the state courts only via the disallowed Second Amended R32 Petition or Revised Second Amended R32 Petition, and were summarily dismissed for want of jurisdiction as being outside the scope of the appeals court's limited remand; or (ii) summarily dismissed by the Alabama Court of Criminal Appeals for being inadequately briefed pursuant to Rule 28(a)(10), Ala.R.App.P.[33] In light of the procedural default, these numerous claims can be heard on federal habeas review only if, and insofar as, Taylor overcomes the procedural default.

         1. Applicable Legal Principles.

         It is well settled that “[t]he doctrine barring procedurally defaulted claims from being heard is not without exceptions. A prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law.” Trevino v. Thaler, 133 S.Ct. 1911, 1917, 185 L.Ed.2d 1044 (2013) (citation omitted). That said, appellate courts “repeatedly have emphasized that circumstances meriting the consideration of procedurally defaulted or barred constitutional claims are ‘extremely rare' and apply only in the ‘extraordinary case.'” Rozzelle v. Secretary, Florida Dep't of Corrections, 672 F.3d 1000, 1015 (11th Cir. 2012) (citations omitted). “[A] habeas petitioner may overcome a procedural default if he can show adequate cause and actual prejudice, or, alternatively, if the failure to consider the merits of his claim would result in a fundamental miscarriage of justice.” Borden v. Allen, 646 F.3d 785, 808 n.26 (11th Cir. 2011); see also Bishop v. Warden, GDCP, 726 F.3d 1243, 1258 (11th Cir. 2013). “As a general matter, ‘cause' for procedural default exists if the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Bishop, 726 F.3d at 1258 (citations and internal quotation marks omitted); see also McCleskey v. Zant, 499 U.S. 467, 493-94, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (“Objective factors that constitute cause include interference by officials that makes compliance with the State's procedural rule impracticable, and a showing that the factual or legal basis for a claim was not reasonably available to counsel. … In addition, constitutionally ineffective assistance of counsel is cause.”) (citations and internal marks omitted). “To establish ‘prejudice, ' a petitioner must show that there is at least a reasonable probability that the result of the proceeding would have been different.” Spencer v. Secretary, Dep't of Corrections, 609 F.3d 1170, 1180 (11th Cir. 2010) (citation omitted); see also Lucas v. Warden, Georgia Diagnostic and Classification Prison, 771 F.3d 785, 801 (11th Cir. 2014) (“For prejudice, Lucas must demonstrate a reasonable probability that his conviction or sentence would have been different ….”).

         As an alternative to showing cause and prejudice, a prisoner may overcome a procedural default by showing a fundamental miscarriage of justice. “For a state prisoner to establish a fundamental miscarriage of justice, he must prove that he is innocent.” Spencer v. United States, 773 F.3d 1132, 1139 (11th Cir. 2014) (citations omitted). “To overcome procedural default through a showing of actual innocence, the petitioner must present reliable evidence … not presented at trial such that it is more likely than not that no reasonable juror would have convicted him of the underlying offense.” Rozzelle, 672 F.3d at 1011 (citations and internal quotation marks omitted); see also Kuenzel v. Commissioner, Alabama Dep't of Corrections, 690 F.3d 1311, 1314-15 (11th Cir. 2012) (“To meet the proper standard, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.”) (citation omitted). “[T]he actual innocence exception applies to constitutional errors in capital sentencing only when the constitutional error resulted in the petitioner becoming statutorily eligible for a death sentence that could not otherwise have been imposed.” Magwood v. Warden, Alabama Dep't of Corrections, 664 F.3d 1340, 1346-47 (11th Cir. 2011) (citations omitted).

         Taylor invokes the cause-and-prejudice standard in an effort to overcome his procedural default as to numerous claims presented for the first time in his Second Amended R32 Petition and Revised Second Amended 32 Petition, both of which Alabama courts disallowed on adequate and independent state procedural grounds.[34] Except as noted below, the State has largely remained silent on the questions of cause and prejudice in its Answer (doc. 33), thus depriving the Court of the benefit of the State's position over whether Taylor can or cannot meet his burden of showing cause and prejudice as to each such claim.[35]

         2. Misconduct Claims as to McMillan (Claims II.A.i, II.B.i).

         In Claims II.A.i and II.B.i, Taylor alleges that the State induced Kenyatta McMillan to testify falsely at trial by instructing him to fabricate testimony that victim Steve Dyas got on his knees as if to pray, and that in the course of begging for her life victim Sherry Gaston stated that she needed to take care of her two children. (Doc. 25, ¶ 62.)[36] Taylor also alleges that the State provided McMillan with a written set of “talking points” to use at trial in furtherance of this supposedly falsified testimony, and that the State never turned over any such evidence to Taylor. (Id., ¶¶ 62, 81.) Taylor first presented these claims in his disallowed Second Amended R32 Petition; therefore, they are procedurally defaulted.

         Again, to establish cause for the procedural default, Taylor must show that an “external impediment, whether it be government interference or the reasonable unavailability of the factual basis for the claim, must have presented petitioner from raising the claim.” McCleskey, 499 U.S. at 497 (citations omitted). Assuming without deciding that the State's nondisclosure of the “talking points” and its instructions to McMillan constitutes “government interference” to establish cause, [37] Taylor still could not overcome the procedural default because he has not shown prejudice. To establish prejudice, Taylor “must demonstrate a reasonable probability that his conviction or sentence would have been different.” Lucas, 771 F.3d at 801; see also High v. Head, 209 F.3d 1257, 1267 (11th Cir. 2000) (“the question is whether the favorable evidence could reasonable be taken to put the whole case in such a different light as to undermine confidence in the verdict”) (citation omitted).

         The record shows that the “coerced” version of McMillan's testimony was that Mr. Dyas had been on his knees as if he were praying at the time he was murdered, and that Ms. Gaston had begged for her life by saying that no one could take care of her two kids like she could. Meanwhile, the “uncoerced” version of McMillan's testimony (as gleaned from McMillan's recorded statement to police on December 16, 1997 and his Rule 32 hearing testimony) would have been that Mr. Dyas had been on his knees begging for Taylor not to shoot and trying desperately to bargain with the assailants to take any car they wanted, and that Ms. Gaston had been “begging and crying and begging” before Taylor shot her. While the former version is embellished, the differences in tenor, severity and emotional resonance between the two narratives are not so marked as to reasonably call into question the outcome of either the guilt phase or the penalty phase of trial.[38] With or without the “prayer like position” and “two kids” accoutrements, McMillan's trial testimony (and all the other evidence presented by the State at trial) painted a vivid picture of horrific, chilling, senseless execution-style murders from which to justify the guilty verdicts and death sentences.

         Because Taylor has not shown prejudice, he cannot overcome the procedural default as to Claims II.A.i and II.B.i; therefore, those claims will not be considered on the merits in these federal habeas proceedings.

         3. Misconduct Claim as to Tiffany Carlton (Claim II.A.ii.a).

         In Claim II.A.ii.a, Taylor alleges the State threatened and secured false testimony from Tiffany Carlton.[39] At trial, the defense called Carlton as a witness, at which time she testified that Taylor and Kenyatta McMillan had visited her house on the day of the murders, that Taylor had shown her the murder weapon, and that Taylor had then given it to McMillan, who kept it in his possession most of the time.[40] At the Rule 32 hearing in December 2011, Carlton testified that law enforcement officers had “harassed” her for months, that they came to her house every day, and that they required her to take a polygraph, because they said McMillan had informed them that he gave the murder weapon to Carlton. (Vol. 48, R-103, at 102-05.) In the Rule 32 proceedings, she testified that the harassment took the form of a detective telling her, “I know he gave you the gun.” (Id. at 104.) Then Carlton testified that she “can't remember [Taylor] with a gun, ” and that if she testified differently at trial it was because “I probably would have said anything just to make them leave me alone.” (Id. at 107.) Taylor first presented the prosecutorial misconduct claim relating to Carlton's testimony in the disallowed Second Amended R32 Petition; thus, that claim is procedurally defaulted.

         The undersigned finds that petitioner has shown neither cause nor prejudice to overcome the procedural default. With regard to cause, Taylor blames the State for “conceal[ing] its misconduct” (doc. 43, at 55). However, the record confirms that Taylor's trial counsel was well aware of the pressure that Carlton described years later in the Rule 32 hearing. In a bench conference before Carlton began testifying at trial, the prosecutor referenced the State's concern that “she did receive the gun in this case and she is hiding the gun, participating in hiding the gun or keeping it from us.” (Doc. 8, R-16 at 1242-43.) And Taylor's lawyer stated in that same bench conference, “She has talked to the state. She has talked to us. She has been given, I understand, a polygraph test.” (Id. at 1243.)[41] Going back as far as trial, then, defense counsel was well aware of the intense scrutiny directed at Carlton, the State's suspicion that she had received the murder weapon, and even the fact that the State had given her a polygraph examination. Certainly, defense counsel had enough facts available to make a claim that Carlton's trial testimony may have been colored by the State's intense scrutiny of her long before Taylor filed the disallowed Second Amended R32 Petition. Therefore, Taylor cannot show “cause” predicated on a theory that the factual basis for this claim was not reasonably available to counsel at an earlier time. Of course, “the mere fact that counsel failed to recognize the factual or legal basis for a claim … does not constitute cause for a procedural default.” Murray v. Carrier, 477 U.S. 478, 486, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).

         Nor has Taylor made a showing of prejudice as to this claim. The State did not call Carlton in its case-in-chief. There was substantial other evidence linking Taylor to the firearm used in the murders. Moreover, taken in context, Carlton's testimony about seeing Taylor with the gun was not particularly harmful to the defense. After all, Carlton told the jury that McMillan - not Taylor - “mainly had the gun most of the time” in her observations, and that McMillan - not Taylor - “was playing with it, babying it, you know, rubbing it, just, you know, holding the gun.” (Vol. 8, R-16 at 1247.) Such statements bind the firearm far more tightly to McMillan than they do to Taylor, which is (presumably) why defense counsel called Carlton to testify and elicited this line of testimony from her in the first place. Indeed, despite what petitioner now characterizes as prosecutorial misconduct, Tiffany Carlton's testimony was overall quite favorable to the defense. If the State pressured her, then those efforts could not have been very effective. Simply put, there is no reasonable probability that Taylor's convictions or sentences would have been different had the State not allegedly applied improper pressure to cause Carlton to falsify her testimony at trial.

         Taylor having shown neither cause nor prejudice, he cannot overcome the procedural default as to Claim II.A.ii.a; therefore, that claim will not be considered on the merits in these federal habeas proceedings.[42]

         4. Misconduct Claim as to Clark (Claim II.A.ii.b).

         In Claim II.A.ii.b, Taylor claims prosecutorial misconduct in threatening and securing false testimony from Bryann Scott Clark, a “jailhouse snitch” who bore the dubious distinction of testifying twice and in contradictory fashion at Taylor's trial.[43] During the defense case in chief, Taylor called Clark as a witness, at which time Clark testified that he was incarcerated at the Mobile Metro Jail with Kenyatta McMillan, that he and McMillan were members of a gang called the “Folk Disciples” or “Kinfolk Disciples, ” that McMillan had confided in him that he (McMillan) had been the triggerman in the Steve Dyas Motors murders, and that McMillan had asked Clark to say that Taylor was bragging about having killed the victims himself. (Vol. 8, R-16, at 1273-77.) Two days later, however, the State called Clark back to the stand as a rebuttal witness. (Vol. 8, R-18, at 1384.) At that time, Clark testified that his prior testimony concerning McMillan's statements to him was “not the truth.” (Id. at 1386.) Clark further testified that Robert Nolin (another jailhouse snitch who had testified for the defense in similar fashion to Clark) had told Clark that “[h]e would help J.T., ” meaning Taylor. (Id.)

         The gravamen of Claim II.A.ii.b is that Clark's recantation was the product of undue pressure imposed by the Warden of the Mobile Metro Jail during the intervening days, thereby supporting a claim for prosecutorial misconduct.[44] Claim II.A.ii.b is procedurally defaulted because Taylor first raised it in the disallowed Revised Second Amended R32 Petition. To show cause for this default, Taylor insists that he “did not know and could not have known at the time the Corrected [First] Amended [R32] Petition was filed that the State had threatened Mr. Clark to secure the recantation of his truthful trial testimony.” (Doc. 43, at 58.) The problem for Taylor is that the record unequivocally refutes such a contention. On October 6, 1998, the Mobile County Circuit Court conducted a hearing on Taylor's Motion for New Trial. During that hearing, Clark testified that after his original trial testimony, the Warden met with him and said “he knew that I was telling a lie and that, if I didn't … say he was telling a lie, he would put me in … the thunder dorm, ” a “fighting dorm” where McMillan was housed. (Vol. 10, R-40, at 1662.) Clark also testified at the October 6, 1998 hearing that the Warden had shown Clark a photo of Clark's wife, and had said that if Clark did not want her to be “involved in anything, ” Clark would say that Taylor (not McMillan) was the one sending him notes. (Id. at 1663.) Clark's testimony at the hearing on Motion for New Trial was that he had lied under the oath the second time he testified at Taylor's trial “[b]ecause to keep my wife out of anything, involved in anything.” (Id. at 1664.) These allegations match exactly the purported threats that form the basis of Claim II.A.ii.b. (Compare Vol. 10, R-40, at 1662-63 with doc. 25, ¶ 74.)

         Because the defense had actual knowledge of the factual predicate of Claim II.A.ii.b many years before the Revised Second Amended R32 Petition was filed, Taylor cannot show cause to excuse his procedural default, and that claim is barred from federal habeas review.[45]

         5. Claim that Purported McMillan Confession Requires Vacatur of Taylor's Convictions and Death Sentences (Claim IX).

         In Claim IX of his § 2254 Petition, Taylor asserts a due process claim predicated on evidence that McMillan made a coded written confession to Bryann Scott Clark that McMillan was the shooter at Steve Dyas Motors and that Taylor had no advance knowledge that McMillan planned to murder the three victims. (Doc. 25, ¶ 452.)[46] This evidence contradicts the State's theory of prosecution and the evidence presented at trial through various witnesses (including McMillan himself) that Taylor had shot all three victims and that McMillan did not know why he had done it. Taylor never raised this claim until the disallowed Revised Second Amended R32 Petition, so it is procedurally defaulted.

         The undersigned finds that Taylor has shown cause to overcome the procedural default. Specifically, Clark avers that McMillan gave the written confession to him in late 1997 or early 1998, but that for unspecified reasons, Clark “was unwilling to provide this written statement to anyone until” March 2012. (Vol. 44, R-98 at 590, ¶¶ 5-6.) Clark further avers that, in connection with his testimony at Taylor's trial, he “did not give Jarrod or his trial lawyers the written statement that Kenyatta had given me.” (Id. at 591, ¶ 11.) And Taylor's counsel say the document was first given to them by Clark in late March 2012. (Vol. 44, R-99 at 598 ¶ 4.) Taylor's counsel assert that they had unsuccessfully engaged in “numerous attempts” to obtain such a document previously. (Vol. 46, R-101 at 868.) Clark's concealment of the purported written confession of McMillan until long after Taylor filed his First Amended R32 Petition constitutes an objective factor external to the defense that impeded counsel's efforts to plead and present the claim to the Alabama courts before the dismissal of his Rule 32 petition, judgment and appeal back in 2005; therefore, it satisfies the “cause” portion of the cause-and-prejudice inquiry for procedural default.[47]

         Where Claim IX founders, however, is with respect to the prejudice requirement. Again, to overcome the procedural default, Taylor must show at least a reasonable probability that the result of his guilt phase or penalty phase would have been different had McMillan's purported written confession been unearthed and presented at trial. He cannot do so for several reasons. First, Taylor evidently contemplates introducing McMillan's written statement into evidence through witness Bryann Scott Clark, the jailhouse snitch who testified twice at Taylor's trial in fundamentally inconsistent ways, then recanted his previous recantation when called to testify at the October 1998 hearing on Taylor's motion for new trial. As Judge Johnstone found in August 1998, Clark's credibility was essentially destroyed by this pattern of drastically flip-flopping testimony, particularly given his gang affiliation and his status as a convicted violent felon.[48]Accordingly, as Judge Johnstone found, there appears to be no reasonable probability that a finder of fact would believe anything Clark had to say (nearly two decades after the fact) about his jailhouse interactions with Kenyatta McMillan in 1998.

         Second, aside from Clark's general credibility gap, there are huge obstacles to the believability of his story concerning the written statement. According to an Affidavit prepared by Taylor's counsel and signed by Clark on March 27, 2012, McMillan told Clark “the story of the crime at Dyas Motors both orally, and in a written statement he gave to [Clark]” while they were housed together in Mobile Metro Jail in late 1997 or early 1998. (Vol. 44, R-98, ¶¶ 1-2, 5.) As discussed at length supra, Clark cooperated with Taylor's lawyers in 1998, informing them of the content of McMillan's oral statements and testifying on Taylor's behalf (and against McMillan) at trial in the defense's case in chief.[49] Yet Clark would now have the finder of fact believe that, even after he reached out to Taylor's counsel to assist Taylor's defense, and even after he volunteered information to them that McMillan had orally admitted being the triggerman, Clark had withheld from Taylor's counsel a coded written statement that McMillan had given him confirming the same sequence of events he had told him orally. Nowhere in the record or briefing does Taylor offer any colorable explanation why Clark would have chosen to withhold that written statement when he was voluntarily assisting Taylor and testifying against McMillan anyway. The icing on the cake is that Clark ostensibly maintained this written coded statement from McMillan in his jail cell in total secrecy for more than 14 years without “providing this written statement to anyone, ” until experiencing a change of heart in March 2012 for no apparent reason and furnishing the original document to Taylor's habeas counsel. (Vol. 44, R-98, ¶ 6.) The story strains credulity beyond the breaking point. Even if Clark's credibility in this matter were not a shambles in general (which it is), the likelihood of any finder of fact believing (much less giving dispositive weight to) Clark's story as Taylor has presented it to this Court on federal habeas review (i.e., that Clark received McMillan's written statement, kept it a secret even when he affirmatively sought out Taylor's counsel and testified as a defense witness at Taylor's trial in a manner consistent with the written statement's contents, retained and hid the original document for 14 years while incarcerated in Alabama prisons, then abruptly turned it over to Taylor's habeas counsel on a whim in March 2012) appears highly remote.

         Third, even if, notwithstanding these considerable defects in Clark's credibility both generally and with regard to the specific subject of his testimony concerning the written statement, a finder of fact were to believe his story and find that the coded written statement was actually given to Clark by Kenyatta McMillan in Mobile Metro Jail in late 1997 or early 1998, there is no reasonable probability that Taylor's convictions or sentences would have been different. To see why, suppose the McMillan statement is accepted at face value as a truthful, honest jailhouse confession, using the very “translation” of the numerals proposed by Taylor's counsel.[50] In other words, suppose the finder of fact believed every word of that written statement as setting forth the true events on the day in question. That account of the Steve Dyas Motors murders is largely unhelpful to Taylor. Specifically, the statement (i) alludes to Taylor and McMillan's plans to rob the dealership; (ii) reflects that after McMillan shot Bruce Gaston in the chest and Steve Dyas tried to escape, Taylor “stopped him and brought back to the office” where he was “begging for his life” while “we was asking him where the money and safe was” before McMillan killed him; and (iii) specifies that after the first two killings, Taylor “went to the bathroom said made the hoe come out she [Sherry Gaston] was begging for us not to kill her … so I put my 380 to her head and shot her we got her purse and two wallets from the men.” (Vol. 45, R-99, at 606.)

         That version of the facts unambiguously portrays Taylor as an accomplice to capital murder. According to that narrative, Taylor had the intent to rob and he knowingly, intentionally participated in the intentional killing by forcibly bringing two of the victims to their executioner, McMillan, even as they screamed and begged for their lives and even when Taylor knew that McMillan intended to kill them (as evidenced by his having already shot Bruce Gaston in the chest). Under such a scenario, Taylor's culpability for the offenses of capital murder would remain unchanged. See, e.g., Kuenzel v. State, 577 So.2d 474, 490-91 (Ala.Crim.App. 1990) (“[T]he accomplice liability doctrine may be used to convict a non-triggerman accomplice if, but only if, the defendant was an accomplice in the intentional killing as opposed to being an accomplice merely in the underlying felony.”) (citation omitted). Nor would his non-triggerman role exempt or insulate Taylor from the death penalty. See, e.g., Doster v. State, 72 So.3d 50, 118 (Ala.Crim.App. 2010) (“We have repeatedly held that a nontriggerman may be convicted of capital murder and sentenced to death.”).[51] To be sure, if proven, Taylor's role as a non-triggerman would be a non-statutory mitigating circumstance. “Of course, the weight to attach to this nonstatutory mitigating circumstance is within the discretion of the trial court.” Hodges v. State, 856 So.2d 875, 893 (Ala.Crim.App. 2001). Here, in all likelihood the weight of that non-statutory mitigating circumstance would have been quite low. Alabama appellate courts “specifically hold that an accomplice may be held vicariously liable for the manner in which his codefendant commits a murder. Thus, a court may properly apply the aggravating circumstance that a murder was especially heinous, atrocious, or cruel to a nontriggerman.” Sneed v. State, 1 So.3d 104, 118 (Ala.Crim.App. 2007). Taylor would thus bear responsibility, in the weighing of aggravating and mitigating circumstances, for the manner in which McMillan committed the murders. Furthermore, the written statement reflects that Taylor played a central role in the murders, irrespective of whether he actually pulled the trigger or not. Without Taylor chasing down Mr. Dyas and Ms. Gaston as they tried to flee for their lives, and without Taylor forcing them back to McMillan as they begged for mercy, those murders would likely not have occurred.[52] Even under that version of the facts, any suggestion that Taylor lacked the requisite intent to be guilty of capital murder would be extremely weak and irreconcilable with his own conduct as described therein. (The statement in the coded note about what Taylor knew or did not know would appear to be improper, inadmissible speculation as to Taylor's state of mind, in any event.) Accordingly, the Court is of the opinion that there is no reasonable likelihood that the McMillan written statement would have materially altered the decision-making calculus or the result at either the guilt/innocence phase or the penalty/sentencing phase of the proceedings.[53]

         For each of these reasons, Taylor has not shown a reasonable probability that his convictions or death sentences would have been different had the McMillan written statement been presented to the jury and sentencing judge at trial. Because he has not shown prejudice to overcome the procedural default, Claim IX is not properly before the federal habeas court and will not be considered on the merits in these § 2254 proceedings.

         6. Misconduct Claim as to Duffel Bag and Wallet (Claim II.C).

         In Claim II.C of his § 2254 Petition, Taylor asserts a claim of prosecutorial misconduct based on the contents of a blue duffel bag admitted at trial as State's Exhibit 58, and the contents of Taylor's wallet admitted as State's Exhibit 71. Taylor posits that the duffel bag contained prejudicial, inadmissible information about his criminal history, including (i) a document showing that Taylor had been charged with misprision of a felony in the U.S. District Court for the Western District of Louisiana in November 1993; (ii) that the same federal court ordered Taylor arrested in March 1994 for a hearing on the Government's motion for revocation of his supervised release on that charge; (iii) that a warrant of arrest was in fact issued for Taylor in March 1994; (iv) that the misprision case was set for trial in September 1994; (v) that the U.S. Probation Office discharged Taylor from supervision on September 30, 1997, for a sentence that had expired one day earlier. (Doc. 23, Exh. E.) According to Taylor, the duffel bag also contained various other prejudicial items, such as documents showing Taylor's overdue loan payments and medical bills, as well as the suspension of his driver's license. (Doc. 25, ¶ 93.) Taylor indicates that the wallet included a document showing a charge against him for unlawful breaking and entering a vehicle. (Id.) Claim II.C was first raised in the disallowed Second Amended R32 Petition, and is therefore procedurally defaulted.

         In an attempt to establish cause to overcome the procedural default, Taylor posits that he “did not learn of the State's misconduct in this regard until years after he filed the Corrected First Amended [R32] Petition” and that his “habeas counsel was not permitted access to the exhibits … until after the case was remanded to the Circuit Court.” (Doc. 43, at 60.) The defect in this argument is that “cause” is not confined to what defendant and his counsel actually knew, but also extends to facts that could reasonably have been discovered. See, e.g., Mize v. Hall, 532 F.3d 1184, 1190 (11th Cir. 2008) (for purposes of showing an objective external factor impeding compliance with the state procedural rule, “[s]uch external impediments include evidence that could not reasonably have been discovered in time to comply with the rule”) (citation omitted); Routly v. Singletary, 33 F.3d 1279, 1290 (11th Cir. 1994) (“objective factors that constitute cause include … a showing that the factual or legal basis for a claim was not reasonably available to counsel”). The record demonstrates that the factual basis of this claim was reasonably available to Taylor's counsel as far back as 1998.

         In particular, in his Amended Motion for New Trial filed in October 1998, Taylor moved for relief on the grounds that on August 13 and 14, 1998, a juror had stated “on the air” that “the jury was made aware of the prior criminal record of Jarrod Taylor through evidence and/or personal effects purportedly belonging to the defendant Taylor.” (Vol. 1, R-2 at 178.) At a hearing on October 5, 1998, Taylor's counsel explained to Judge Johnstone that a female juror (whose identity was known to them) had appeared on a radio talk show airing on the Thursday and Friday after the August 1998 sentencing hearing, and that the juror “was discussing the fact that they had seen evidence during the guilt phase that Jarrod Taylor had a prior conviction and I don't know what that might have been.” (Vol. 10, R-39, at 1647.) In response, Judge Johnstone commented that “for the sake of getting as good a record as we can we ought to try to get the lady here, if she can be brought here.” (Id.) Yet defendants did not bring the juror in to testify at the hearing on the motion for new trial.[54] Nor is there any indication that defense counsel (including trial counsel, direct appeal counsel, or state post-conviction counsel) attempted to contact that juror (or any other juror) to identify what evidence of Taylor's criminal history the jury had seen in its deliberations. Such inquiries (which are not forbidden under Alabama law) would in all likelihood have led Taylor's counsel directly to the duffel bag and wallet, providing them with the very factual predicate for Claim II.C that they now contend was unavailable to them until 2011.[55]

         The point is straightforward. Taylor's counsel have known - or have had good reason to believe - since no later than October 1998 that the jury had seen something they should not have seen relating to Taylor's criminal history. Had Taylor performed reasonable follow-up between then and 2005, he would have learned about the contents of the duffel bag in advance of the final judgment entered by Judge Thomas in the Rule 32 proceedings, and therefore could have pleaded Claim II.C in the state post-conviction proceedings in a timely manner that complied with the state procedural rule. Yet Taylor has made no showing that he ever conducted such inquiries in a reasonably diligent manner. Because the Court finds that the factual basis for Claim II.C was reasonably available to Taylor many years before he actually attempted to raise the claim, such that he readily could have avoided the state procedural bar, he has not shown cause to overcome the procedural default. Accordingly, Claim II.C will not be considered on federal habeas review.

         7. Ineffective Assistance Claim as to Duffel Bag and Wallet (Claim III.B.ii.a).

         In Claim III.B.ii.a of his § 2254 Petition, Taylor alleges that his trial counsel provided ineffective assistance in failing to challenge the admission of the blue duffel bag (State's Exhibit 58), the wallet (Exhibit 71) and Sherry Gaston's purse (Exhibit 47), which contained such prejudicial items as family photos and her children's Christmas wish lists. Taylor maintains that “[e]ven a mere cursory review of these items would have uncovered flagrantly prejudicial and facially inadmissible information.” (Doc. 25, ¶ 182.) This claim was first presented by Taylor in his disallowed Second Amended R32 Petition and is therefore procedurally barred.

         Taylor's showing of cause to overcome the procedural default as to this Claim III.B.ii.a fails for precisely the same reason that it failed as to Claim II.C, supra. Once again, Taylor attributes his failure timely to assert this claim in state post-conviction proceedings to “the refusal of the Circuit Court and the Circuit Clerk's office to grant Mr. Taylor's habeas counsel access to the trial exhibits, ” such that he “was not aware of that certain of the exhibits contained inadmissible and prejudicial materials.” (Doc. 43, at 62.) As discussed in the Claim II.C cause-and-prejudice analysis, however, Taylor has been aware for many years that the jurors had reviewed evidence of his criminal history during the deliberations. The sources of that evidence (i.e., Taylor's duffel bag and wallet) could readily have been ascertained about reasonable follow-up inquiry by Taylor's counsel after the trial, during the direct appeal, or during state post-conviction proceedings prior to the 2005 judgment. Because the factual basis of Claim III.B.ii.a (i.e., the prejudicial materials in the duffel bag and wallet) was reasonably available to Taylor beginning no later than August 27-28, 1998, when he was first placed on direct notice that the jurors had reviewed improper materials, he has not shown cause to excuse his failure timely to raise this claim in the state courts antecedent to the 2005 judgment on Rule 32 review.[56]

         In light of Taylor's failure to establish cause for his failure to present this claim to the state courts in a timely manner, he cannot overcome the procedural default. For that reason, Claim III.B.ii.a is not properly before this Court and will not be considered on the merits in this federal habeas proceeding.

         8. Ineffective Assistance Claims Relating to Mitigation (Claim III.C).

         In Claim III.C of his § 2254 petition, Taylor identifies numerous respects in which he contends trial counsel rendered ineffective assistance in connection with the penalty phase of his trial. The many subclaims encompassed within the boundaries of Claim III.C include Claim III.C.i (failure to investigate potential mitigation evidence), Claim III.C.ii.a (failure to present evidence about Taylor's difficult childhood), Claim III.C.ii.b (failure to present evidence about Taylor's mental health and functional/cognitive impairments), Claim III.C.ii.c (failure to present evidence about Taylor's environmental and social background, such as his neighborhood, mother and father), Claim III.C.ii.d (failure to elicit testimony about Taylor's son, and his relationships with friends and co-workers), and Claim III.C.iii (failure to prepare and obtain helpful testimony from witnesses who testified for the defense during penalty phase). Most aspects of these specific claims were first presented in Taylor's disallowed Second Amended R32 Petition; therefore, to the extent these claims (and the numerous subclaims they contain) are not sufficiently embodied in his First Amended R32 Petition, they are procedurally defaulted.[57]

         To show cause for the procedural default as to his failure to present these claims to state courts on post-conviction review prior to the entry of the 2005 judgment, Taylor lays the blame squarely at trial counsel's feet. Taylor explains the reason why he could not present these claims in his original or first amended Rule 32 petitions was “the ineffectiveness of his Trial Counsel, ” which, Taylor says, created a situation in which “habeas counsel needed to do far more work (and devote far more time) to investigate potential mitigation evidence than would have been necessary had Trial Counsel done even a bare minimum of work.” (Doc. 43, at 63-64.) This argument is unpersuasive. To be sure, the Court recognizes that constitutionally ineffective assistance of counsel may be an objective factor that constitutes cause. See, e.g., Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010) (“an ineffective-assistance-of-counsel claim, if both exhausted and not procedurally defaulted, may constitute cause”). Here's the rub: Present habeas counsel have represented Taylor at least as far back as July 2002, when they filed Taylor's original Rule 32 petition. (Vol. 18, R-52 at 16-124.) In that Rule 32 petition, habeas counsel devoted 15 paragraphs and 6½ pages to arguing that “Trial Counsel Failed to Provide Effective Assistance at Sentencing Phase.” (Id. at ¶¶ 158-72.) Thus, habeas counsel was on notice of trial counsel's alleged infirmities at the sentencing phase and had more than three full years to investigate, develop and flesh out those claims prior to the Circuit Court's entry of a final order of dismissal on August 1, 2005. (Vol. 53, R-122.) Although Taylor failed to do so, his omissions in that regard cannot reasonably be pinned on trial counsel, and he provides no explanation for any contention that he could not have investigated and fully presented his mitigation claims during the 2002-2005 period. Petitioner thus has not satisfactorily shown that his failure to present all his claims of ineffective assistance at sentencing prior to the August 2005 judgment was the product of ineffective assistance by Taylor's trial counsel, much less that the factual or legal bases for those claims were not reasonably available to habeas counsel until sometime after August 2005.

         Inasmuch as Taylor has failed to show cause to excuse the procedural default, the ineffective assistance claims embedded within Claim III.C of his § 2254 Petition cannot be heard herein to the extent the state courts deemed them procedurally barred as having been presented for the first time in his Second Amended R32 Petition.

9. Summary.

         In light of the foregoing cause-and-prejudice analysis, none of Taylor's claims that were procedurally defaulted by the state courts for noncompliance with Rule 28(a)(10) or for not being raised until the disallowed Second Amended R32 Petition or Revised Second Amended R32 Petition may be heard in these federal habeas proceedings.[58] All claims (and portions of claims) subject to those procedural defaults are barred and will not be considered on the merits here. The Court will now address the merits (along with any exhaustion issues) relating to Taylor's remaining claims on a claim-by-claim basis.

         IV. MERITS AND EXHAUSTION ISSUES FOR REMAINING CLAIMS.

         In light of the foregoing determinations as to procedural default, many of the claims presented in Taylor's § 2254 Petition cannot and will not be addressed on the merits. That said, various claims (in whole or in part) withstand the procedural bars arising from the Rule 28(a)(10) waiver of certain of Taylor's claims, as determined by the Alabama Court of Criminal Appeals, and the disallowance of Taylor's Second Amended R32 Petition and Revised Second Amended R32 Petition by the Alabama courts. Of the remainder, certain claims were plainly exhausted and addressed on the merits, in whole or in part, by Alabama courts either on direct appeal or in Rule 32 proceedings. Other claims were not raised until the disallowed Second Amended R32 Petition, or were never raised to the state courts at all, but Taylor maintains they merely provide additional factual support for previously asserted claims, or that they otherwise comport with baseline exhaustion requirements, such that they should be considered on the merits now. Those claims and issues will be addressed one by one.

         The remaining claims (or portions of claims) requiring individualized analysis of merits and/or exhaustion issues consist of the following: (i) Claim I (Batson claim alleging racially biased use of peremptory strikes by the State); (ii) Claims II.A.i, II.A.ii.a, II.B.i, II.B.ii, II.B.iii and II.C (prosecutorial misconduct); (iii) Claim II.A.ii.b (prosecutorial misconduct in securing false testimony from Clark); (iv) Claim II.D (cumulative error as to prosecutorial misconduct); (v) Claim III.B.i (ineffective assistance of counsel in failing to present evidence that Taylor was not present at the time of the murders); (vi) Claim III.B.iii.a (ineffective assistance of counsel in impeaching McMillan about events at Steve Dyas Motors); (vii) Claim III.B.iii.b (ineffective assistance of counsel in impeaching McMillan via other witnesses' accounts); (viii) Claim III.B.iii.c (ineffective assistance of counsel in impeaching McMillan using physical evidence at the scene); (ix) Claim III.B.iv.a (ineffective assistance of counsel in failing to present evidence concerning McMillan's access to murder weapon); (x) Claim III.B.iv.b (ineffective assistance of counsel in failing to present evidence concerning pressure on the Carlton sisters); (xi) Claim III.B.v (ineffective assistance of counsel in failing to elicit testimony from Clark and Lewis regarding McMillan confessions); (xii) Claim III.C (ineffective assistance of counsel during penalty phase); (xiii) Claim III.D (ineffective assistance of counsel as to motion for new trial); (xiv) Claim III.F (cumulative ineffective assistance of counsel); (xv) Claim V.A (improper jury instructions during guilt phase); (xvi) Claim V.B (improper jury instructions during penalty phase); (xvii) Claim VI (sufficiency of the evidence); (xviii) Claim VII (consideration of improper evidence at sentencing); (xix) Claim X (alleged improprieties in Rule 32 proceedings); (xx) Claim XI.A.i (death penalty is cruel and unusual punishment); (xxi) Claim XI.A.iii (death penalty does not further penological goals); (xxii) Claim XI.B.i (constitutionality of Alabama's judicial override provision); (xxiii) Claim XI.B.ii (Ring/Apprendi/Hurst v. Florida); (xxiv) Claim XI.C.ii. (override in this case violated Ring/Apprendi/Hurst); and (xxv) Claim XI.D (constitutionality of Alabama's method of execution). Each claim or subclaim will be analyzed in turn.

         A. Claim I (Race Discrimination in State's Peremptory Strikes).

         Taylor claims that the State exercised its peremptory challenges in a racially discriminatory manner, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In so arguing, Taylor maintains that “[t]he State's exercise of seven of its first eight peremptory challenges to remove black venire members … itself established a prima facie Batson violation.” (Doc. 25, ¶ 45.) Taylor further argues that the prima facie case for a Batson violation is bolstered by the State having “struck those black venire members in sequential ascending order by their assigned jury number, ” and because “the Mobile County District Attorney's Office had a history of exercising unconstitutional peremptory challenges.” (Id., ¶¶ 50-51.)

         The trial record reflects that each side was afforded 12 peremptory strikes during jury selection. (Vol. 4, R-9 at 518.) By Judge Johnstone's count (corroborated by counsel for both sides), approximately 19 of the 60 original venirepersons (or 31.7%) were African-American. (Id. at 522-23.) After the parties utilized all of their peremptory challenges (with the State using 7 of its allotted 12 on African-American jurors, and the defense using all 12 of its challenges to strike white jurors), the jury of 12 that was ultimately seated for trial included five African-Americans (or 41.7%). (Id. at 524-26.) Defense counsel then asserted a Batson objection on the grounds that the State used seven of its first eight peremptory challenges to strike African-Americans from the venire. (Id. at 524-25.) In articulating this Batson objection, Taylor's attorneys repeatedly acknowledged that “according to the numbers it doesn't meet the predicate proof which would require the state to show race neutral reasons.” (Id. at 523-24.) Indeed, defense counsel conceded to the trial judge that their Batson argument lacked even a prima facie predicate showing that might obligate the State to articulate race-neutral reasons, to-wit:

“I believe we have to make a predicate showing that representation of blacks on the jury that is selected underrepresents the total number of blacks that were on the venire. That is simply not the case. In fact, the black representation on the jury is more than the percentage of the total black … potential jury members when we started this …. [W]e can't ...

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