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Freeman v. Dunn

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

July 2, 2018

DAVID FREEMAN, AIS No. 0000Z506, Petitioner,
v.
JEFFERSON S. DUNN, Commissioner, Alabama Department of Corrections, Respondent.

          MEMORANDUM OPINION AND ORDER

          W. KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE

         Petitioner David Freeman filed this federal habeas corpus action pursuant to 28 U.S.C. § 2254 challenging his June 1996 Montgomery County conviction for capital murder and sentence of death. For the reasons set forth below, Petitioner is not entitled to either habeas corpus relief or a Certificate of Appealability.[1]

         I. BACKGROUND

         A. The Offense and Aftermath

         In the early morning hours of March 12, 1988, Deborah Gordon returned to her home in Montgomery, Alabama to find the porch light off and the front door ajar.[2] When she entered the house, it appeared to have been ransacked.[3] Deborah discovered her seventeen-year-old sister Sylvia's lifeless body lying beneath a blanket on Sylvia's bed.[4] When Deborah pulled the blanket off Sylvia, she saw stab wounds on Sylvia's chest.[5] Fearful, Deborah backed out of Sylvia's room and decided to leave.[6] After searching for her car keys, she began to do so.[7] As she exited the house, Deborah saw her mother Mary's bare legs through the doorway to her mother's bedroom.[8] She saw no signs of life in either her mother or sister.[9]Deborah drove to a nearby store and called police.[10]

         The medical examiner determined after autopsy that (1) Mary Gordon (age 42), [11] whose body was clad only in her shirt and bra (both of which had been cut), sustained eleven major stab wounds, (2) several of Mary's stab wounds were postmortem, (3) more than one of her stab wounds would have been fatal independently, (4) Mary died of multiple stab wounds to her abdomen and chest, (5) she also sustained numerous smaller cuts, scratches, and abrasions, and (6) Mary may have survived as long as five-to-ten minutes and been conscious for up to three minutes after her first wound.[12] A forensic pathologist testified via stipulation that vaginal swabs taken from Mary Gordon during autopsy contained semen consistent with that of Petitioner.[13]

         The medical examiner determined after autopsy that (1) Sylvia Gordon (who was clad only in her socks, bra and tee shirt with her bra and tee shirt pulled up over her head and behind her neck) had twenty-one major injuries plus a number of smaller cuts and scratches, (2) there were a number of very small tears in the lining of Sylvia's vagina, (3) he could not determine whether those vaginal tears were pre-or post-mortem, (4) all but one of Sylvia's wounds were pre-mortem, (5) Sylvia's neck showed bruising as well as tearing of the skin consistent with pressure having been applied to the front of her neck, (6) her vocal cords hemorrhaged, (7) Sylvia died as a result of blood loss, (8) the cause of Sylvia's death was multiple stab wounds, none of which would have been fatal independently, and (9) Sylvia could have survived for up to ten minutes and been conscious for as long as eight minutes after the assault upon her commenced.[14]

         Deborah Gordon reported to police that, when she left her home the previous afternoon, her sister was sitting with Petitioner in the living room, Sylvia had been seeing Petitioner, and Sylvia had informed Deborah earlier that day she planned to breakup with Petitioner.[15] Deborah also reported that her mother's Silver Pontiac Sunbird was missing.[16] Every telephone inside the Gordon home had either been pulled from the wall or had its wires cut.[17]

         Mary Gordon's missing Pontiac Sunbird was located in downtown Montgomery a short distance from an apartment occupied by Petitioner and his roommate.[18] More specifically, an officer testified Mary Gordon's missing Pontiac Sunbird was located at seven a.m. on March 12, 1988 on Scott Street between South Court and South Perry Streets.[19] A fingerprint examiner testified via stipulation that a latent fingerprint lifted from the top of the vehicle above the driver's side door matched Petitioner.[20] Inside the vehicle, police discovered a butcher knife on the rear floorboard, which knife a tool-mark examiner testified via stipulation was consistent with the cuts observed in the ribs of both victims and their clothing.[21]

         Hours later, police arrived at an apartment in Montgomery where they found Petitioner wearing a bandage over one hand.[22] After Petitioner's roommate gave consent to a search of the apartment, police discovered several items of Petitioner's clothing in a closet containing what appeared to be bloodstains.[23] Police arrested Petitioner.[24] A former Montgomery police officer testified he collected the Petitioner's blue jeans, briefs, jacket (containing a knife sheath in the lining), and shoes from the apartment where Petitioner was arrested and took photographs of Petitioner's bandaged hand and the butcher knife recovered from the rear floorboard of Mary Gordon's vehicle.[25] Forensic tests of the blood found on Petitioner's clothing, including his underwear, showed it matched that of the victims.[26] Hairs found inside the front pocket of Petitioner's jeans matched the head hair of Sylvia Gordon.[27]

         Both a partial bloody shoe print found on the blouse of Mary Gordon and a separate partial bloody shoe print found at the crime scene were consistent with one of Petitioner's shoes.[28] Sylvia Gordon's blood was present in multiple locations throughout the Gordon home.[29] The clothing of both victims had been cut extensively.[30] Forensic testing on a blue and white checkered cloth found at the crime scene showed it contained blood consistent with the victims and semen consistent with Petitioner.[31]

         Petitioner was arrested on March 12, 1988.[32] The same day, Petitioner gave police an audiotape recorded statement in which he denied any knowledge of the Gordon murders.[33]

         Two days later, Petitioner consented to have bite marks on his arms photographed and thereafter gave police a handwritten written statement in which he again denied any knowledge of the Gordon murders.[34] Later the same day, however, Petitioner furnished police with another handwritten statement in which he stated that (1) during his conversation with Sylvia he "sort of blanked out," (2) when he "came to" her mother was coming in the door, (3) he saw a knife in his hand and he felt he had no choice so he stabbed her mother, (4) he wrapped a bandage around a cut on his hand, (5) when he exited the bathroom he "saw both of them trying to get to the phone," (6) he ran over and got all of the phones off the walls, and (7) he got the keys to the silver car and left.[35] The same date, Petitioner gave police an audiotape recorded statement in which he admitted he stabbed Mary Gordon once in the back and took her car but denied assaulting Sylvia Gordon and denied sexually assaulting either victim.[36]

         B. Indictment

         In June 1988, a Montgomery County grand jury indicted Petitioner on six counts of capital murder.[37]

         C. First Trial

         Jury selection in Petitioner's first capital murder trial commenced on August 14, 1989.[38] The guilt-innocence phase of trial began the next day.[39] On August 19, 1989, the jury returned its verdict, finding Petitioner guilty on all six counts.[40] The sentencing phase of Petitioner's first capital murder trial took place on August 21, 1989.[41] At the conclusion of that portion of Petitioner's first capital murder trial, the jury recommended by a vote of eleven-to-one that Petitioner receive the death penalty.[42] On October 5, 1989, the state trial court heard arguments from both parties regarding sentencing.[43] On October 18, 1989, the trial judge imposed the sentence of death.[44]

         D. First Direct Appeal

         Petitioner appealed his conviction and sentence. In an opinion issued May 6, 1994, the Alabama Court of Criminal Appeals reversed Petitioner's conviction, based upon a Batson violation, and remanded for a new trial. Freeman v. State, 651 So.2d 576 (Ala.Crim.App.1994), cert, denied (Ala. 1994).

         E. Second Trial - Mistrial

         The guilt-innocence phase of Petitioner's second capital murder trial commenced on January 25, 1996.[45] On January 31, 1996, the state trial court held a hearing during which (1) Petitioner's lead trial counsel explained he was not physically able to continue with Petitioner's trial due to illness and offered no indication when he might be able to continue the trial, (2) Petitioner's co-counsel advised the trial court that his wife, a nurse, believed lead counsel should be hospitalized and expressed a strong preference that the trial not continue without the presence of Petitioner's lead counsel, (3) the prosecution agreed that lead defense counsel appeared unable to continue with the trial and expressed a desire that Petitioner receive effective representation, and (4) the trial court reluctantly declared a mistrial, noting the trial had already been continued for almost a week, and reset the case for February 26, 1996.[46] Neither party objected to the trial court's declaration of a mistrial or urged reconsideration of that ruling.

         F. State Mandamus Proceedings

         On February 21, 1989, Petitioner filed a motion to dismiss the indictment against him, arguing that (1) jeopardy attached at the commencement of his second capital murder trial, (2) the state trial court erroneously ordered a mistrial without finding on the record "any reasons of manifest necessity that would warrant declaring a mistrial" as opposed to a continuance, and (3) under such circumstances, Petitioner's retrial would violate Double Jeopardy principles.[47] The state trial court denied Petitioner's motion to dismiss the indictment on Double Jeopardy grounds.[48]

         On February 22, 1996, Petitioner filed a petition for writ of mandamus with the Alabama Court of Criminal Appeals urging the same Double Jeopardy argument and seeking an order directing the trial court to dismiss the indictment against him.[49]The same date the Alabama Court of Criminal Appeals denied Petitioner's petition for writ of mandamus.[50] Petitioner thereafter filed a motion for stay and for writ of mandamus in the Alabama Supreme Court, which denied both motions in an order issued February 23, 1996.[51]

         G. First Federal Habeas Corpus Proceeding

         On February 23, 1996, Petitioner filed an original federal habeas corpus action in this court, which was docketed as cause no. 2:96-cv-323-ID-VPM, urging the same Double Jeopardy claim he raised in the state courts and seeking an emergency writ of habeas corpus and removal of Petitioner's state criminal proceeding to this court. In an Order issued February 26, 1996, this court denied both Petitioner's motion for removal and emergency federal habeas corpus petition.[52]

H. Third Trial Jury selection in Petitioner's third capital murder trial commenced on June 17, 1996.[53] The guilt-innocence phase of trial commenced June 18, 1996.

         1. The Prosecution's Case

         In addition to the evidence summarized in section LA. above, petitioner's jury also heard testimony during the guilt-innocence phase of Petitioner's June 1996 capital murder trial from forensic dentist Dr. Michael O'Brien that (1) he was board certified by both the National Dental Board of Examiners and Alabama Board of Dental Examiners, (2) he had trained in forensic pathology at the Armed Forces Institute of Pathology and trained in forensic dentistry at both the University of Texas Health Sciences Center in San Antonio and Northwestern University in Chicago, (3) he had studied and written articles on bite mark identification, (4) he went to the Montgomery County Jail to meet with Petitioner and examine bite marks on Petitioner's arms which appeared to be both human and fresh, (5) the location and configuration of petitioner's bite marks were consistent with either offensive or defensive wounds, as opposed to tearing or passionate bite marks, (6) he took a dental impression or mold of Petitioner's teeth, (7) he later went to the morgue where he took dental impressions of the teeth of both Mary Gordon and Sylvia Gordon, (8) the bite marks on Petitioner's arms did not appear similar to the teeth molds from Petitioner or Mary Gordon, (9) the bite marks on Petitioner's arms compared identically to the mold of Sylvia Gordon's teeth, (10) throughout their encounter, Petitioner appeared very relaxed and cooperative, and (11) he identified photographs of the bite marks on Petitioner's arms which photographs had been admitted into evidence.[54]

         The prosecution also requested, and the trial court permitted, to have the testimony of Petitioner's former co-worker Frances Boozer, given during Petitioner's first trial, read in open court.[55] Mrs. Boozer testified during Petitioner's first capital murder trial that (1) she worked with Petitioner at the Union truck stop in Montgomery in March, 1988, (2) a few days before the murders of Mary and Sylvia Gordon, she had a conversation with Petitioner, (3) Petitioner told her he was having problems with his girlfriend, Sylvia, (4) more specifically, Petitioner told her he loved Sylvia and wanted to marry her but Sylvia was a mama's baby and her mama didn't seem to like him, (5) because of her mother, Sylvia would not marry him, (6) Petitioner also told her that if he could get rid of her mama, he felt he and Sylvia could have a relationship together, (7) when she learned Sylvia was still in school, she suggested Petitioner find a young lady who was more mature, (8) Petitioner repeated that he loved Sylvia and wanted to marry her, (9) when she suggested that Sylvia might not be ready to give up her freedom, Petitioner sad "well I'm not going to give her up" and "I'd rather see her dead than somebody else have her," (10) Petitioner said that Sylvia's mother "told her exactly what to do and she followed everything mommy said," and (11) Petitioner told her that if Sylvia's mother was dead and if he was rid of her, that he would have a chance.[56]

         2. The Defense's Evidence

         After the prosecution rested at the guilt-innocence phase of trial, Petitioner's trial counsel called a mental health expert, specifically clinical psychologist Dr. Barry Burkhart, who opined that, on the date of his capital offenses (a) Petitioner was suffering from major depressive disorder, Schizotypal Personality Disorder, and Borderline Personality Disorder, (b) Petitioner's condition was characterized by a markedly unstable self-image and violent reaction to perceived abandonment, and (c) when Petitioner perceived that Sylvia was rejecting his romantic overture, Petitioner suffered intense dissociative symptoms, including inappropriate intense anger, which culminated in a brief reactive psychosis in which Petitioner lost touch with reality and was unable to conform his behavior to the requirements of the law.[57]Dr. Burkhart was the defense's primary witness during Petitioner's third trial offered in support of Petitioner's plea of "not guilty by reason of mental disease or defect." More specifically, Dr. Burkhart testified on direct examination that (1) he was certified in clinical psychology and had served as supervisor of the Lee County Development Center's psychological assessment center, (2) he evaluated Petitioner four times for a total of approximately twelve hours in 1989 and administered many tests, (3) he also reviewed a wealth of records relating to Petitioner's medical and mental health history, Petitioner's written and typed statements to police, (4) Petitioner's mental health records showed that he was diagnosed as depressed and angry from an early age and included recommendations for placement in a long-term treatment facility and psychotherapy, (5) Petitioner reported abuse in the home in Missouri in which Petitioner was placed along with his sister, (6) he diagnosed Petitioner with Schizotypal Personality Disorder, a condition characterized by a pervasive pattern of social discomfort and disability, an inability to get along with others, an inability to make any attachment to people, and brief paranoid psychotic episodes, (7) Petitioner had been diagnosed by Dr. Guy Renfro and other mental health professionals as displaying Borderline Personality disorder, a condition very similar to Dr. Burkhart's diagnosed Schizotypal Personality disorder, (8) Borderline Personality Disorder ("BPD") is characterized by instability in interpersonal relationships, self-image, affect, feelings, and marked impulsivity in early childhood or early adulthood, (9) persons with BPD often engage in frantic efforts to avoid real or imagined abandonment, (10) persons with BPD often go through a cycle in their interpersonal relationships in which they initially idealize the object of their affection then, when the relationship fails or deteriorates, they demonize the person they once idealized, (11) persons displaying BPD also have markedly unstable self-images, i.e., their self-image alternates between grandiose and extremely negative, (12) persons displaying BPD also show impulsivity, potentially self-damaging behaviors, including recurrent suicidal behavior and gestures, and an inability to self-regulate their emotions, (13) BPD can be co-morbid with depressive problems, (14) persons displaying BPD also show affective instability due to marked reactivity of mood and intense episodic dysphoria, (15) persons displaying BPD often have feelings of boredom and emptiness and display inappropriate intense anger, (16) persons with BPD can display transient stress-related paranoid ideation or severe dissociative symptoms, which can lead to delusional thinking and a loss of cognitive control, i.e, "blanking out," (17) Petitioner meets seven of the nine criteria for BPD and only five are required for a diagnosis, (18) children require consistent attachment to a parent, (19) children exposed to chronic neglect or abuse are impaired socially, cognitively, and psychologically, (20) children denied normal personal relationships have a high probability of having psychological disorders and emotional dis-control, (21) the extreme stress Petitioner experienced when Sylvia Gordon rejected his romantic overture could have caused Petitioner to experience a psychotic disorder or reactive psychosis in which Petitioner lost touch with reality, and (22) he believed it was "very likely" that, at the time of his capital offenses, Petitioner suffered a brief reactive psychosis while under the stress of being abandoned or rejected.[58]

         On cross-examination, Dr. Burkhart admitted that (1) Petitioner's was the first case in which Dr. Burkhart testified in an adult criminal case about a defendant's competency, (2) Petitioner's answers to two different MMPI tests Dr. Burkhart administered showed possibly invalid results, (3) there is disagreement within the mental health profession regarding the efficacy of the Rorschach test he administered to Petitioner, (4) during his clinical interview, Petitioner refused to discuss his condition at the time of his offenses, (5) none of the tests he administered showed that Petitioner was psychotic on March 11, 1988, (6) he disagrees with both (a) Dr. Mohabbat's diagnosis of adjustment disorder with mixed emotions and (b) Dr. Grayson's finding of an absence of major depressive disorder in Petitioner and diagnosis of adjustment disorder with disturbance of emotions and conduct, (7) he disagrees with a December, 1984 diagnosis of Antisocial Personality Disorder, in part because such a diagnosis is inappropriate for a patient under the age of eighteen, (8) Petitioner's records are full of incidents in which Petitioner was violent, reactive, and refused to follow orders, (9) Petitioner has a pattern of being aggressive toward female staffers at his youth facilities, (10) Petitioner's records from a Missouri youth facility show he was violent at age seven, (11) a psychological evaluation performed in March 1977 showed Petitioner's intelligence as average, (12) Petitioner's records show he was hard to manage at both school and home, (13) by age eight, a Dr. R.J. Kline reported Petitioner had constantly caused problems for boarding home parents and Petitioner was referred to the Department of Pensions and Securities because of his behavioral problems, (14) a September 1978 report by Dr. Kline stated that Petitioner will possibly become antisocial in later life and diagnosed Petitioner with adjustment disorder, (15) a January 1979 report by Dr. Dennis Breiter states Petitioner has a low tolerance for frustration, (16) a psychological evaluation report done when Petitioner was thirteen years and two months old states, in part, that Petitioner (a) refused to talk about his past, (b) had been removed from a foster home because he had been aggressive toward a young child, (c) was angry with persons in authority, (d) had low impulse control, and (e) denied having experienced any sexual contact, (17) a December 1983 psychological evaluation by Dr. Garry Grayson found no symptoms of major depressive episodes, (18) a May 1984 psychological evaluation by Dr. Dale Wisely found no major depression and diagnosed Petitioner with adjustment disorder with mixed disturbance, (19) a September 1984 psychological evaluation performed when Petitioner was fifteen diagnosed Petitioner with conduct disorder, (2) a psychological evaluation in December 1984 by Dr. F. Lopez reported Petitioner displayed antisocial attitudes, (21) a November 1985 psychological evaluation by Dr. Thomas Boyle performed when Petitioner was sixteen years and four months diagnosed Petitioner with conduct disorder, (22) a January 1989 Lunacy Commission Report prepared by Dr. Joe Dixon summarized the findings of the three physicians who evaluated Petitioner, i.e., Dr. Mohabbat (Adjustment Reaction with anger and depression), Dr. Bryant (Adjustment Disorder with depressed mood), and Dr. Nagi (Antisocial Personality Disorder), (23) Dr. Guy Renfro diagnosed Petitioner with Borderline Personality Disorder, (24) none of the other mental health experts who evaluated Petitioner following Petitioner's arrest diagnosed Petitioner with a psychotic disorder, (25) no one believes Petitioner lacked the substantial capacity to appreciate the criminality of his conduct, (26) only Dr. Burkhart believes Petitioner lacked substantial capacity to conform his conduct to the law, (27) Dr. Burkhart believes Schizotypal Personality Disorder is the correct diagnosis for Petitioner, (28) he believed Petitioner suffered from a mental disease or defect at the time of his offense which prevented Petitioner from conforming his conduct to the requirements of the law, i.e., a brief reactive psychosis, but (29) he was unable to determine precisely when that brief psychotic episode began or ended.[59]

         The defense also called a pair of social workers who testified regarding the disruptive nature of Petitioner's childhood after the State of Alabama removed Petitioner from his birth mother approximately ten months after his birth. More specifically, a man who worked at the Bell Road Group Home in 1986-87 when Petitioner resided there, testified that Petitioner (1) was a loner and appeared isolated and withdrawn, (2) had occasional outbursts, (3) once punched a hole in the wall, (4) was involved in one or two fights, and (5) had a child-like craving for love and attention.[60]

         A state adoption program specialist who had worked in Talladega County as Petitioner's case-worker for several years testified that (1) she handled Petitioner's case while he was in foster care, (2) Petitioner never had a relationship with his biological mother, (3) she believed Petitioner's mother was mentally retarded based upon his mother's behavior and appearance, (4) Petitioner's father was a disabled veteran who suffered from a painful facial tic, nerves, and depression, (5) Petitioner's childhood was characterized by a number of frequent, erratic moves, (6) Petitioner was placed with a relative of his step-mother in Missouri from 1974-77 with an eye toward adoption, (7) Petitioner was returned to Alabama in 1977, where he was placed in a foster home and then in Symmetry House in Opelika after Petitioner was aggressive toward another child, (8) Petitioner was placed in St. Mary's Home in Mobile from 1978-83 but was removed from that facility after he assaulted a house parent, (9) Petitioner was placed in Coosa Valley, a crisis facility for delinquent children, for four months in 1983 and then sent to Gateway in Birmingham, (10) Petitioner twice ran away from the Gateway facility, (11) on one occasion while at Gateway, Petitioner climbed on the roof and refused to come down, (12) on another occasion, Petitioner grabbed a butcher knife and cut himself, (13) a social summary (State Exhibit 6A) prepared by Doris Reeder, who took over for her as Petitioner's caseworker, accurately reflects Petitioner's delayed social development and multiple unsuccessful placements, (14) Petitioner did not communicate verbally and was the most difficult child she ever dealt with, and (15) Petitioner's numerous placements were unsuccessful due to Petitioner's aggressive behavior.[61]

         On cross-examination, the same former caseworker testified that (1) Petitioner's brother Michael did well in school, (2) at age ten months, Petitioner was placed in foster care, (3) Petitioner went to a second foster home and then to live with relatives in Missouri from 1974-77, (4) the family in Missouri returned Petitioner and his other siblings to Alabama after allegations of abuse were made in Missouri, (5) an investigation by military authorities in 1976 concluded "no real abuse had in likelihood occurred," (6) prior to his return, Petitioner was evaluated at age seven in Missouri and found to be normal with low frustration tolerance, (7) Petitioner was removed from a foster family in Alabama after six months and sent to Symmetry House, (8) at age nine, Petitioner was removed from Symmetry House due to behavioral problems, (9) Petitioner then went to St. Mary's Home in Mobile, another residential treatment facility, from 1978-82, (10) Petitioner was removed from St. Mary's and sent to Gateway after Petitioner struck a childcare worker, (11) Dr. Burkhart evaluated Petitioner at age thirteen and recommended further long term residential placement, (12) Petitioner then went to Coosa Valley Attention Facility in Anniston (not a long term facility) and then to Gateway in Birmingham (which was a long term facility), (13) while at Gateway, Petitioner displayed tantrum-like behavior, picked on younger children, often presented himself as the victim when he was the instigator, engaged in self-hurt behaviors, was manipulative and attention-seeking, but not depressed, (14) Petitioner was then sent to the Eufaula Adolescent Adjustment Center, a more structured facility, in August, 1984 around age fifteen, where Petitioner received both group and individual therapy, (15) in August, 1985, Petitioner escaped or "eloped" from the Eufaula facility with a girl and committed a burglary for which Petitioner was placed in a diversion program in Dothan, (16) a report in April 1986 states Petitioner had displayed excellent conduct and educational progress, (17) individual counseling was included in Petitioner's treatment plan, (18) in September 1986 a report indicates Petitioner was uncooperative during his weekly therapy sessions, (19) Petitioner began acting out at age four and the reason he was moved around so frequently was his own behavior, and (20) all efforts to modify Petitioner's behavior failed.[62]

         The defense also obtained the admission of testimony from one of the witnesses called during Petitioner's original capital murder trial to attempt to rebut the testimony of Frances Diane Boozer.[63] More specifically, the defense requested (and the trial court permitted) that the testimony of Anita Hussey given during Petitioner's first trial be read into evidence. Ms. Hussey testified during Petitioner's first trial that (1) she was the office manager from the Union 76 Station in Montgomery, (2) she could verify the accuracy of the time cards filled out by Petitioner and Frances Diane Boozer, (3) both Petitioner and Ms. Boozer worked March 2 through March 6, 1988 but not at the same time, (4) Petitioner and Ms. Boozer worked overlapping shifts on March 9, 1988 for about four hours, (5) Petitioner worked a shift on March 10, 1988 but it was unclear when Ms. Boozer worked that date, (6) she sent Petitioner home on March 11, 1988 when she found him asleep on the job, and (7) Ms. Boozer frequently arrived early for her shift.[64]

         3. Prosecution's Rebuttal Evidence

         After the defense rested at the guilt-innocence phase of trial, the prosecution (1) played the videotaped deposition of Dr. Guy J. Renfro, who expressed opinions contrary to those of Petitioner's mental health expert Dr. Burkhart, [65] and (2) presented the testimony of a forensic psychologist, Dr. Joe W. Dixon, who expressed his own findings and opinions as well as summarized the findings of the three psychiatrists who evaluated Petitioner as part of the Lunacy Commission's determination of Petitioner's competence to stand trial and the possible presence of a mental disease or defect at the time of the offense.

         More specifically, in his videotaped deposition, on direct examination by Petitioner's counsel, Dr. Renfro testified that (1) he was a clinical psychologist, (2) he interviewed Petitioner for seven and a half hours over four separate meetings in the Summer and Fall of 1995, (3) he reviewed many of Petitioner's test results, including IQ and MMPI tests, (4) his conclusion was that Petitioner displayed Borderline Personality Disorder ("BPD"), which is a pattern of behavior that a person has represented for a long time and continues to maintain, (5) he did not consider BPD a mental disorder, (6) long-term treatment for BPD is available through relearning of things that were not learned or changes to maladaptive behavior, (7) the criteria for BPD are a pervasive pattern of instability of mood, interpersonal relationships, and self-image beginning by early adulthood and present in a variety of contexts with at least five of the following eight characteristics: (a) a pattern of unstable and intense interpersonal relationships characterized by alternating between extremes of over-idealization and devaluation, (b) impulsiveness in at least two areas that are potentially self-damaging, e.g., spending, sex, substance abuse, shoplifting, reckless driving, and binge eating, (c) affective instability, i.e., marked shifts from base line mood to depression, irritability or anxiety usually lasting a few hours and only rarely more than a few days, (d) inappropriate intense anger or lack of control of anger, frequent displays of temper, constant anger, recurrent fights, (e) recurrent suicidal threats, gestures, or behavior or self-mutilating behavior, (f) marked and persistent identity disturbance manifested by uncertainty about at least two of the following: self-image, sexual orientation, long term goals or career choice, type of friends desired, preferred values, (g) chronic feelings of emptiness or boredom, and (h) frantic efforts to avoid real or imagined abandonment, (8) Petitioner's history establishes the vast majority of the foregoing criteria, (9) Petitioner's frequent movements exacerbated his problems with Petitioner developing a pattern of acting out to test the resolve or commitment of his caregivers - to see if they would abandon him once his behavior escalated, (10) Petitioner's loss of his mother at an early age affected his ability to bond with others, (11) records show Dr. Burkhart observed Petitioner's rapid mood changes from calm to agitated several times, (12) records showed Petitioner became angry or behaved aggressively when he perceived abandonment, including by Sylvia Gordon, (13) for persons with BPD, the perception of impending separation or rejection or loss of external structure can lead to profound changes in self-image, affect, cognition, or behavior, (14) Sylvia Gordon's note to Petitioner (State Exhibit 52), in which she explained that she did not want a romantic relationship with him, could cause Petitioner to perceive an impending separation or rejection, (15) while fear of abandonment can lead to inappropriate anger, he could not say such anger would be uncontrollable, (16) persons with BPD quickly go from idealizing potential caregivers or lovers to devaluing them, i.e., feeling the other person does not care enough, (17) feelings of love at first sight very quickly are followed by dramatic shifts in their views of others, (18) Petitioner lacked a well-developed sense of where he was going in his life and has a fragile self-image, (19) Petitioner's frequent removals from homes set the tone for Petitioner's feelings of abandonment and rejection, (20) Petitioner was reluctant to talk about his family of origin, (21) Petitioner's impulsiveness, moodiness, episodic depression, and extreme reactivity to interpersonal stress are all well-documented throughout his records, (22) while some persons with BPD may experience psychotic-like symptoms during periods of extreme stress, at the time of his offense, Petitioner experienced rage and anger but nothing that was uncontrollable, (23) as early as age eight, at Symmetry House, Petitioner was unwilling to be accepting or conforming in his relationship with adults, (24) Petitioner did get individual treatment at Eufaula Adolescent Adjustment Center, (25) a personality disorder is defined as a pattern of behavior (learned behavior) that leads to a person consistently getting into trouble or having trouble functioning in society that does not respond to treatment, (26) people have the capacity to change aspects of their behavior but after a certain age and certain point in life, it is very difficult to change, (27) Petitioner's test results consistently show a lot of anger, difficulty getting along with people, and difficulty following rules, (28) persons with BPD tend to be guarded and distrustful, (29) Petitioner needs to feel in control of situations and may feel rejected if people disagree with him, which may lead him to become angry, and (3) some researchers believe that a psychological event can trigger amnesia as a form of dissociative disorder.[66]

         On cross-examination by the prosecution, Dr. Renfro testified that (1) in his opinion Petitioner was competent to stand trial and was displaying the characteristics of BPD at the time of his offense, (2) Petitioner is very sensitive to possible rejection and likely to react with intense anger and impulsive behavior, (3) nonetheless, Petitioner understood his behavior was wrong and criminal, (4) there was no indication Petitioner was unable to conform his behavior to legal standards or that Petitioner had a mental disorder that prevented him from conforming his behavior, (5) he found no evidence of delusional thinking in Petitioner, (6) Petitioner has a tendency not to be totally candid or open, i.e., Petitioner would say he did not recall something but later make references indicating he did recall those events, (7) during his capital offenses, Petitioner engaged in a lot of goal-oriented behavior indicating an appreciation of the criminal nature of his conduct and a desire to avoid apprehension, (8) Petitioner's crime scene conduct was inconsistent with a person who lacked the substantial capacity to appreciate criminality of his conduct or to conform his conduct, (9) he diagnosed Petitioner with (a) BPD on Axis II (lifelong patterns of behavior) but (b) nothing on Axis I (major mental disorders) or Axis III (contributing health or medical problems), (c) Axis IV (psychosocial stress factors) issues, including the fact Petitioner had a capital murder charge pending against him, and (d) Axis V (global assessment of functioning) showed mild to moderate impairment in occupational functioning and social functioning, (10) BPD is not a mental disease or mental illness, (11) despite BPD, Petitioner was aware of what was going on around him during his offenses and able to make conscious decisions and behave in a certain way, (12) in his opinion, there was no indication Petitioner suffered from a mental disorder or illness that prevented Petitioner from possessing the substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law, (13) Petitioner told him that he recalled stabbing both Sylvia and Mary Gordon each once, (14) Petitioner indicated that he knew what he had done was wrong and discussed disposing of a knife, (15) Petitioner's admissions that he cut the phone lines suggested he was trying to prevent people from using the phones to call out, (16) Petitioner was able to go to work after the offenses and make it back home, indicating he was capable of goal-oriented behavior, (17) he found no evidence Petitioner was suffering from a brief reactive psychosis at the time of the offenses, (18) the Rorschach and MMPI tests administered to Petitioner by Dr. Burkhart and others had little value in the context of determining Petitioner's mental state at the time of his offenses, (19) Petitioner has never generated a usable MMPI test result, (20) he found nothing in Petitioner's records indicating Petitioner had ever been diagnosed with a psychosis, and (21) he did not believe Petitioner experienced amnesia during or after the offenses but, rather, only claimed to have done so.[67]

         Dr. Dixon testified that (1) he is a forensic psychologist, (2) forensic psychology is different from clinical psychology in that the possibility of secondary gain requires a diagnosing psychologist to be alert to the possibility the patient is presenting bogus or incorrect information, (3) psychologists have to be trained to be forensic psychologists, (4) he evaluated Petitioner in December 1988 to determine whether Petitioner was competent to be evaluated by the Lunacy Commission, (5) he found Petitioner (a) displayed a calm, lucid, rational demeanor, (b) was generally uncooperative, (c) did not appear to be mentally retarded, (d) displayed a flat affect but was emotionally stable and steady, (e) displayed depression that was a "fairly normal range of reaction" for someone who had been indicted for a double murder, and (f) displayed no active thought disorder, (6) Petitioner said he loved his girlfriend and was at work at the time of her murder, (7) three Lunacy Commission psychiatrists (Dr. Bryant, Dr. Nagi, and Dr. Mohabbat) independently evaluated Petitioner, (8) each of those doctors found no evidence of mental illness or mental impairment which prevented Petitioner from standing trial, (9) all three Lunacy Commission doctors found no evidence suggesting grounds existed for a mental state defense to the offenses charged, (10) Petitioner told all three Lunacy Commission doctors he had no role in the murders of the Gordons, (11) none of the Lunacy Commission psychiatrists found any evidence that Petitioner lacked substantial capacity to conform his conduct to the law as a result of a mental disease or defect, (12) the Lunacy Commission doctors who evaluated Petitioner did not have access to all of Petitioner's childhood records or a social history of Petitioner dated January 5, 1989, (13) a diagnosis of Adjustment Disorder (i.e., the diagnoses made by Dr. Bryant and Dr. Mohabbat) is inapplicable to depression that lasts more than six months but Petitioner's prolonged depression could have been a reaction to being in jail or the hospital, (14) at age fifteen, Petitioner was diagnosed by a Dr. Lopez with conduct disorder, the precursor to an adult diagnosis of Antisocial Personality Disorder, (15) Petitioner's siblings were unable to furnish information on Petitioner or his offenses, and (16) the MMPI test requires a cooperative, self-disciplined test subject, who needs to be motivated to perform.[68]

         4. The Verdict

         On June 25, 1996, the jury returned its verdict, unanimously finding Petitioner guilty of all six counts of capital murder in the indictment.[69]

         5. Punishment Phase

         The punishment phase of Petitioner's capital murder trial commenced the same date. The prosecution presented no additional evidence.[70] The defense presented a single new witness, a Catholic Deacon who worked at St. Mary's House in Mobile when Petitioner was a resident there and testified Petitioner was a good child deserving of leniency.[71] Later the same day, the jury returned its verdict at the punishment phase of Petitioner's capital murder trial and recommended, by a vote of eleven-to-one, that a sentence of death be imposed.[72] On August 1, 1996, the parties re-submitted all of the evidence from Petitioner's previous sentencing hearing, and the trial judge imposed the sentence of death recommended by Petitioner's jury.[73]

         I. Second Direct Appeal

         Petitioner appealed his conviction and sentence.[74] In an opinion issued April 30, 1999, the Alabama Court of Criminal Appeals affirmed Petitioner's conviction and sentence. Freeman v. State, 776 So.2d 160 (Ala.Crim.App.1999), cert, denied, 776 So.2d 203 (Ala. 2000). The Alabama Supreme Court denied certiorari on March 10, 2000. In re David Freeman, 776 So.2d 203 (Ala. 2000). The United States Supreme Court denied certiorari October 30, 2000. Freeman v. Alabama, 531 U.S. 966 (2000).

         J. Rule 32 Proceedings

         On October 24, 2001, Petitioner filed his initial petition for relief from judgment pursuant to Rule 32.[75] In an Order issued January 23, 2002, the state trial court summarily dismissed Petitioner's Double Jeopardy and Confrontation Clause claims based on Petitioner's failure to raise those claims at trial and on direct appeal.[76] On June 4, 2003, the state trial court held an evidentiary hearing and heard from three witnesses called by Petitioner: Petitioner's former trial co-counsel, i.e., attorneys William Abell and John David Norris, and Petitioner's former state appellate counsel, i.e., attorney Thomas M. Goggans.[77]

         In an Order issued June 25, 2003, the state trial court made its findings of fact, conclusions of law, and denied Petitioner's petition for state habeas corpus relief under Rule 32.[78] Petitioner appealed the trial court's denial of his Rule 32 petition.[79]On June 17, 2005, the Alabama Court of Criminal Appeals issued a memorandum affirming the trial court's denial of Rule 32 relief.[80] Petitioner filed a petition for writ of certiorari in the Alabama Supreme Court.[81] In an Order issued January 20, 2006, the Alabama Supreme Court denied Petitioner's petition for writ of certiorari.[82] Petitioner filed a petition for writ of certiorari in the United States Supreme Court.[83] The United States Supreme Court denied Petitioner's request for certiorari on June 26, 2006. Freeman v. Alabama, 548 U S. 910 (2006).

         K. Proceedings in this Court

         On February 16, 2006, Petitioner filed his original federal habeas corpus petition, asserting nine grounds for relief (Doc. # 5).[84] On March 19, 2007, Respondent filed his initial brief on procedural default and evidentiary issues (Doc. # 63). On April 16, 2007, Petitioner filed his 218-page "brief in support of his federal habeas corpus petition (Doc. # 64).[85] On July 19, 2007, Respondent filed his brief on the merits (Doc. # 80).[86] On September 4, 2007, Petitioner filed his reply brief (Doc. # 83). On July 19, 2016, this case was reassigned to the undersigned's docket (Doc. #101).

         II. AEDPA STANDARD OF REVIEW

         The state appellate courts rejected most of Petitioner's claims in this federal habeas corpus proceeding on the merits, either on direct appeal or during Petitioner's Rule 32 proceeding. Because petitioner filed his federal habeas corpus action after the effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), this Court's review of petitioner's claims for federal habeas corpus relief which were disposed of on the merits by the state courts is governed by the AEDPA. Penry v. Johnson, 532 U.S. 782, 792 (2001). Under the AEDPA standard of review, this Court cannot grant petitioner federal habeas corpus relief in this cause in connection with any claim that was adjudicated on the merits in state court proceedings, unless the adjudication of that claim either: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Brown v. Payton, 544 U.S. 133, 141 (2005); Williams v. Taylor, 529 U.S. 362, 404-05 (2000); 28 U.S.C. § 2254(d).

         The Supreme Court has concluded the "contrary to" and "unreasonable application" clauses of 28 U.S.C. § 2254(d) (1) have independent meanings. Bell v. Cone, 535 U.S. 685, 694 (2002). Under the "contrary to" clause, a federal habeas court may grant relief if (1) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or (2) the state court decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Brown v. Payton, 544 U.S. at 141; Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) ("A state court's decision is 'contrary to' our clearly established law if it 'applies a rule that contradicts the governing law set forth in our cases' or it 'confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.'"). A state court's failure to cite governing Supreme Court authority does not, perse, establish the state court's decision is "contrary to" clearly established federal law: "the state court need not even be aware of our precedents, 'so long as neither the reasoning nor the result of the state-court decisions contradicts them.'" Mitchell v. Esparza, 540 U.S. at 16.

         Under the "unreasonable application" clause, a federal habeas court may grant relief if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the petitioner's case. Brown v. Payton, 544 U S. at 141; Wiggins v. Smith, 539 U S. 510, 520 (2003). A federal court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." McDanielv. Brown, 558 U.S. 120, 132-33 (2010) ("A federal habeas court can only set aside a state-court decision as 'an unreasonable application of. . . clearly established Federal law,' § 2254(d) (1), if the state court's application of that law is 'objectively unreasonable.'"); Wiggins v. Smith, 539 U.S. at 520-21. The focus of this inquiry is on whether the state court's application of clearly established federal law was objectively unreasonable; an "unreasonable" application is different from a merely "incorrect" one. Schriro v. Landrigan, 550 U.S. 465, 473 (2007) ("The question under the AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold."); Wiggins v. Smith, 539 U.S. at 520; Price v. Vincent, 538 U.S. 634, 641 (2003) ("it is the habeas applicant's burden to show that the state court applied that case to the facts of his case in an objectively unreasonable manner").

         As the Supreme Court has explained:

Under the Antiterrorism and Effective Death Penalty Act, a state prisoner seeking a writ of habeas corpus from a federal court "must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement."

Bobby v. Dixon, 565 U.S. 23, 24 (2011) (quoting Harrington v. Richter, 562 U.S. 86, 103(2011)).

         Legal principles are "clearly established" for purposes of AEDPA review when the holdings, as opposed to the dicta, of Supreme Court decisions as of the time of the relevant state-court decision establish those principles. Yarborough v. Alvarado, 541 U.S. 652, 660-61 (2004) ("We look for 'the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'"); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Under the AEDPA, what constitutes "clearly established federal law" is determined through review of the decisions of the United States Supreme Court, not the precedent of the federal Circuit Courts. See Lopez v. Smith, 135 S.Ct. 1, 2 (2014) (holding the AEDPA prohibits the federal courts of appeals from relying on their own precedent to conclude a particular constitutional principle is "clearly established").

         The AEDPA also significantly restricts the scope of federal habeas review of state court fact-findings. 28 U.S.C. § 2254(d)(2) provides federal habeas relief may not be granted on any claim that was adjudicated on the merits in the state courts unless the state court's adjudication of the claim resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Wood v. Allen, 558 U.S. 290, 301 (2010) ("[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance."); Williams v. Taylor, 529 U.S. at 410 ("[A]n unreasonable application of federal law is different from an incorrect application of federal law."). Even if reasonable minds reviewing the record might disagree about the factual finding in question (or the implicit credibility determination underlying the factual finding), on habeas review, this does not suffice to supersede the trial court's factual determination. Wood v. Allen, 558 U.S. at 301; Rice v. Collins, 546 U.S. 333, 341-42 (2006).

         In addition, § 2254(e)(1) provides a petitioner challenging state court factual findings must establish by clear and convincing evidence that the state court's findings were erroneous. Schriro v. Landrigan, 550 U.S. at 473-74 ("AEDPA also requires federal habeas courts to presume the correctness of state courts' factual findings unless applicants rebut this presumption with 'clear and convincing evidence.'"); Rice v. Collins, 546 U.S. at 338-39 ("State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by 'clear and convincing evidence.'"); Miller-El v. Dretke, 545 U.S. 231, 240 (2005) ("[W]e presume the Texas court's factual findings to be sound unless Miller-El rebuts the 'presumption of correctness by clear and convincing evidence.'"); 28 U.S.C. §2254(e)(1). It remains unclear at this juncture whether § 2254(e)(1) applies in every case presenting a challenge to a state court's factual findings under § 2254(d)(2). See Wood v. Allen, 558 U.S. at 300 (choosing not to resolve the issue of § 2254(e)(1)'s possible application to all challenges to a state court's factual findings); Rice v. Collins, 546 U.S. at 339 (likewise refusing to resolve the Circuit split regarding the application of § 2254(e)(1)).

         However, the deference to which state-court factual findings are entitled under the AEDPA does not imply an abandonment or abdication of federal judicial review. See Miller-El v. Dretke, 545 U.S. at 240 (the standard is "demanding but not insatiable"); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) ("Even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief").

         III. ATKINS CLAIM

         A. The Claim

         In his ninth claim for federal habeas relief, Petitioner argues he is ineligible for the death penalty under the Supreme Court's holding in Atkins v. Virginia, 536 U.S. 304 (2002), because he is mentally retarded (Doc. # 5, at pp. 61-65).

         B. State Court Disposition

         Petitioner presented a highly conclusory version of the same argument as his eleventh ground for relief in his fourth amended Rule 32 petition.[87] In its Final Order addressing Petitioner's fourth amended Rule 32 petition, the state trial court held the claim was precluded from review because it had not been raised at trial or on appeal[88] but nonetheless went on to address the merits, finding and concluding as follows:

Moreover, the record from trial establishes beyond any doubt that Freeman is not mentally retarded. The record contains the results of numerous IQ tests given from ages eight through fourteen years. Freeman's IQ scores include: 87 at age eight; 86 at age nine; 85 at age ten; 89 at age thirteen; and 89 at age fourteen. The record also contains many handwritten letters from Freeman to various individuals that not only establish his literacy, but also clearly show a significant degree of intellectual functioning. Further, the Court personally addressed and observed Freeman on numerous occasions. Based on the record and the Court's personal knowledge of Freeman, even if this claim were properly before the Court, it would be without merit. Therefore, this claim is hereby denied.[89]

         Petitioner appealed the state trial court's dismissal and rejection on the merits of his Atkins claim.[90] The Alabama Court of Criminal Appeals affirmed, concluding the record "affirmatively refutes Freeman's allegation that he is mentally retarded."[91] Petitioner sought certiorari review from the Alabama Supreme Court, presenting the same conclusory assertions of mental retardation he included in his appellate brief before the Alabama Court of Criminal Appeals, once again without any record citations.[92] The Alabama Supreme Court denied Petitioner's certiorari petition.[93]

         C. Clearly Established Federal Law

         In Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme Court concluded the execution of mentally retarded persons failed to fulfill either of the two justifications for capital punishment, i.e., retribution and deterrence, and held the Eighth Amendment forbids the execution of mentally retarded persons. Atkins v. Virginia, 536 U.S. at 318-21. The Supreme Court cited two clinical definitions of "mental retardation" with approval[94] but, ultimately, left to the States "the task of developing appropriate ways to enforce the constitutional restriction upon their execution of sentences."[95] Id., 536 U.S. at 317.

         Nonetheless, the Supreme Court recognizes that "an IQ between 70 and 75 or lower" is "typically considered the cutoff IQ score for the intellectual function prong of the mental retardation definition." Brumfield v. Cain, 135 S.Ct. 2269, 2278 (2015) (quoting Atkins v. Virginia, 536 U.S. at 309 n.5). Thus, an IQ score of 75 is "squarely in the range of potential intellectual disability." Brumfield v. Cain, 135 S.Ct. at 2278.

         With regard to the first prong of the Atkins analysis, i.e., establishing significantly subaverage intellectual functioning, the Supreme Court has held that, because of the imprecision inherent in IQ testing, [96] a court must consider the standard error of measurement ("SEM") when assessing intellectual disability. See Hall v. Florida, 134 S.Ct. 1986, 2000 (2014):

The legal determination of intellectual disability is distinct from a medical diagnosis, but it is informed by the medical community's diagnostic framework. Atkins itself points to the diagnostic criteria employed by psychiatric professionals. And the professional community's teachings are of particular help in this case, where no alternative definition of intellectual disability is presented and where this Court and the States have placed substantial reliance on the expertise of the medical profession.
By failing to take into account the SEM and setting a strict cutoff at 70, Florida "goes against the unanimous professional consensus." APA Brief 15. Neither Florida nor its amid point to a single medical professional who supports this cutoff. The DSM-5 repudiates it: "IQ test scores are approximations of conceptual functioning but may be insufficient to assess reasoning in real-life situations and mastery of practical tasks." DSM-5, at 37. This statement well captures the Court's independent assessment that an individual with an IQ test score "between 70 and 75 or lower," Atkins, supra, at 309, n. 5, 122 S.Ct. 2242, may show intellectual disability by presenting additional evidence regarding difficulties in adaptive functioning.

         In Moore v. Texas, 137 S.Ct. 1039, 1048-53 (2017), the Supreme Court further restricted States' ability to circumscribe the legal definition of "intellectual disability," holding (1) a State's determination under Atkins must be guided by current medical standards[97] and (2) States are not free to adopt criteria unsupported by medical science to evaluate a defendant's alleged subaverage intellectual functioning or deficits in adaptive skills.[98] See Moore v. Texas, 137 S.Ct. at 1050- 53 (holding a Texas appellate court erred in applying a set of non-clinical criteria known as the Briseno factors in evaluating a defendant's claim of intellectual disability because (1) some of the Briseno factors had implicitly been rejected by the medical community (in part because they were based on outdated stereotypes) and (2) all the Briseno factors were little more than lay perceptions of intellectual disability untethered to any clinical medical standard).

         D. AEDPA Review

          Whether Petitioner is intellectually disabled is a question of fact.[99] Ledfordv. Warden, GDCP, 818 F.3d 600, 632 (11th Cir. 2016), cert, denied, 137 S.Ct. 1432 (2017); Conner v. GDCP Warden, 784 F.3d 752, 766 (11th Cir. 2015), cert, denied, 136 S.Ct. 1246 (2016). Thus, the state habeas court's determination on the merits that Petitioner is not intellectually disabled is a finding of fact entitled to deference under the AEDPA. Ledford v. Warden, GDCP, 818 F.3d at 632; Fults v. GDCP Warden, 764 F.3d 1311, 1319 (11th Cir. 2014), cert, denied, 136 S.Ct. 56 (2015).

         The purpose of the AEDPA is to ensure that federal habeas relief functions to guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction. Greene v. Fisher, 565 U.S. 34, 43 (2011) (quoting Harrington v. Richter, 562 U.S. 86, 102-03 (2011)); Hill v. Humphrey, 662 F.3d 1336, 1347 (11th Cir. 2011) (en banc), cert, denied, 566 U.S. 1041 (2012). A state prisoner seeking a writ of habeas corpus from a federal court must show that the state court's ruling on the claim presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement. Bobby v. Dixon, 565 U.S. 23, 24 (2011) (quoting Harrington v. Richter, 562 U.S. at 101); Hill v. Humphrey, 662 F.3d at 1346. The AEDPA's § 2254(d)(1)'s standard is difficult to meet and a highly deferential standard for evaluating state court rulings, which demands that state-court decisions be given the benefit of the doubt, and one for which the petitioner carries the burden of proof. Cullen v. Pinholster, 563 U.S. 170, 181 (2011); Hill v. Humphrey, 662 F.3d at 1346.

         It is significant for the purpose of this court's AEDPA analysis of the state habeas court's denial of Petitioner's Atkins that both the state habeas court's June 25, 2003 "Final Order" denying Petitioner's Rule 32 petition and the Texas Court of Criminal Appeals' Memorandum issued June 17, 2005 affirming the trial court's denial of Petitioner's Rule 32 petition were issued prior to the dates the Supreme Court issued its opinions in Hall v. Florida, Brumfield v. Cain, and Moore v. Texas, discussed above. Except insofar as they merely reiterated or applied the holding in Atkins, those subsequent opinions were not "clearly established" as of the date the state courts rejected Petitioner's Atkins claim on the merits.

         The Eleventh Circuit has consistently held that the legal standard applied by Alabama courts for evaluating intellectual disability within the context of Atkins requires a criminal defendant to show (1) significant subaverage intellectual functioning (defined as an IQ of 70 or below), (2) significant or substantial deficits in adaptive behavior, and (3) that these problems manifested themselves during the developmental period (i.e., before the age of 18). See, e.g., Burgess v. Commn'r, Ala. Dep't of Corr., 723 F.3d 1308, 1321 (11th Cir. 2013); Thomas v. Allen, 607 F.3d 749, 752 (11th Cir. 2010); Powell v. Allen, 602 F.3d 1263, 1272 (11th Cir. 2010), cert, denied, 562 U.S. 1183 (2011); Holladay v. Allen, 555 F.3d 1346, 1353 (11th Cir. 2009); Wood v. Allen, 542 F.3d 1281, 1286 (11th Cir. 2008), aff'd, 558 U.S. 290 (2010). Alabama courts also require a showing that the problems existed at the time of the capital offense and at the time of sentencing. See Burgess v. Commn 'r, Ala. Dep 't of Corr., 723 F.3d at 1321 n. 13 (holding the Alabama Supreme Court requires that a defendant asserting an Atkins claim exhibit significantly subaverage intellectual functioning abilities and significant deficits in adaptive behavior during three periods: before the age of eighteen, on the date of the capital offense, and currently); Thomas v. Allen, 607 F.3d at 752-53 (holding the same); Powell v. Allen, 602 F.3d at 1272 ("it is implicit in that definition that the IQ and deficits in adaptive functioning exist not only prior to the age of eighteen but also at the time of the crime and currently"); Holladay v. Allen, 555 F.3d at 1353 ("it is 'implicit' that the problems also existed at the time of the crime" (quoting Smith v. Alabama, 213 So.3d 239, 248 (Ala. 2007)).

         Petitioner was a ward of the State of Alabama beginning within months of his birth (in July 1969) when Talladega County officials removed him from the home of his biological mother. He remained a ward of the State until shortly before he committed his capital offenses (in March 1988 at age 18 years 8 months). Throughout that period, Petitioner received routine psychological evaluations that included intelligence testing, all of which found Petitioner's IQ was at least a full standard deviation above the upper end of the range for a finding of intellectual disability, i.e., a score of seventy.[100] More specifically, Petitioner was tested initially in March 1977 and had full-scale scores of 89 on the WISC-R and 96 on the Stanford Binet IQ tests.[101] Petitioner's full-scale score on the WISC-R in January 1978 was gY[102] Petitioner's full-scale score on the WISC-R in January 1979 was 86.[103]Petitioner's full-scale score on the WISC-R in May 1980 was 85.[104] Petitioner's full-scale score on the WISC-R in September-October 1982 was 89.[105] The report from a psychological evaluation performed in December 1982 by Petitioner's mental health expert at trial, Dr. Barry Burkhart, states that (1) Petitioner's verbal score was 81 and performance score was 101 (but does not specify a "full-scale" score) and (2) Petitioner's intelligence is "low average."[106] Petitioner's full-scale score on the WISC-R in May 1984 was 97.[107] A psychological evaluation performed in November 1985 reported Petitioner's full-scale score of 86.[108] Thus, save for Petitioner's May 1984 full-scale score of 97, all of his full-scale IQ scores fell within a range of 85 to 89.

         Out of an abundance of caution, this court will focus primarily upon Petitioner's lowest IQ test score achieved during his developmental period, i.e., the full-scale score of 85 he achieved in May 1980. Petitioner's lowest IQ test score in the record (85) is significantly higher than the upper end of the mild intellectual disability range, i.e., 75. As explained above, applying the SEM applicable to Petitioner's full-scale IQ test scores, there is a 95% certainty Petitioner's actual IQ falls within the range of 80 to 90 (85 plus or minus five points). See Ledford v. Warden, GDCP, 818 F.3d at 640 ("The standard error of measurement accounts for a margin of error both below and above the IQ test-taker's score.").[109] The lower end of this range for Petitioner's lowest recorded IQ test score is a full five points higher than the upper end of the range recognized as intellectually disabled, i.e., a score of 75. Thus, even considering the SEM, the low end of the applicable range for Petitioner's lowest recorded full-scale IQ test score does not overlap with the upper end of the IQ range for a finding of mild intellectual disability.[110]

         Furthermore, the voluminous record before the state habeas court reveals that myriad mental health professionals evaluated Petitioner throughout his developmental period. The reports of those who evaluated Petitioner during that period, including clinical psychologists, school psychologists, and others, belie any suggestion that Petitioner was intellectually disabled or even borderline intellectually disabled.[111] On the contrary, those evaluating Petitioner consistently concluded he was performing in either the "average" or "low average" range of intellectual functioning.[112] Likewise, none of the mental health professionals who evaluated Petitioner following his arrest expressed any opinions suggesting Petitioner was intellectually disabled.[113]

         As explained above, there is a 95% chance that Petitioner's actual IQ score lies within the range of 80 to 90. Even giving due consideration to the statistical error of measurement (which recognizes an upper limit of 75 for mild intellectually disabled diagnosis), Petitioner's IQ test scores in the record establish Petitioner consistently functioned throughout his childhood at an intellectual level above the upper end of the range for a finding of intellectual disability. During his Rule 32 proceeding, Petitioner alleged no facts showing Petitioner ever tested lower than 85 on any standardized IQ test instrument during his developmental years. Likewise, during his Rule 32 proceeding, Petitioner alleged no specific facts showing that he had ever displayed deficits in adaptive skills that fell significantly or substantially below the norm for such skills.

         E. Conclusion

         Having independently reviewed the extensive documentation concerning Petitioner's developmental years that was before the state habeas court, this court concludes the state habeas court's denial on the merits of Petitioner's Atkins claim was neither (1) contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state habeas corpus proceeding. Petitioner's ninth claim does not warrant federal habeas corpus relief.

         IV. APPRENDI - RING CLAIM

         A. The Claim

         In his eighth claim for federal habeas relief, Petitioner argues that his right to trial by jury under the Sixth Amendment and his Eighth Amendment rights were violated because the jury's verdict at the punishment phase of his trial was not determinative of his final sentence, in violation of the Supreme Court's holdings in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002), (Doc. # 5, at 58-61; Doc. # 64, 203-16).

         B. State Court Disposition

         Petitioner asserted an abbreviated version of the same basic claim as his tenth ground for relief in his fourth amended Rule 32 petition.[114] In its Final Order denying Petitioner's fourth amended Rule 32 petition, the state habeas trial court (1) held Petitioner's Ring claim was precluded from state habeas review because it was not raised at trial or on direct appeal[115] and (2) rejected the legal argument underlying this claim on the merits, concluding the argument asserted by Petitioner was foreclosed by the Alabama Supreme Court's holding in Ex parte Waldrop, 859 So.2d 1181 (Ala. 2002), cert, denied, 540 U.S. 968 (2003).[116] The Alabama Court of Criminal Appeals affirmed, holding Ring was not retroactive to cases such as Petitioner's and also recognizing, as had the state habeas trial court, that Petitioner's Ring arguments were foreclosed by the Alabama Supreme Court's holding in Waldrop.[117] The Alabama Supreme Court denied Petitioner's certiorari petition.[118]

         C. Clearly Established Federal Law

         This court discussed at length the Supreme Court's holdings in Ring, Apprendi, and Hurst v. Florida, 136 S.Ct. 616 (2016), in Dallas v. Dunn, No. 2:02cv777, 2017 WL 3015690, *19-31 (M.D. Ala. July 14, 2017). In Dallas, this court explained that a true consensus on an overarching analytical approach to Eighth Amendment claims did not fully appear until the Supreme Court's opinion in Tuilaepa v. California, 512 U.S. 967 (1994), in which eight Justices agreed the Eighth Amendment addresses two different, but related, aspects of capital sentencing: the eligibility decision and the selection decision. Tuilaepa, 512 U.S. at 971. In Tuilaepa, the Supreme Court's analysis of those two aspects of capital sentencing provided the first comprehensive system for analyzing Eighth Amendment claims a clear majority of the Supreme Court had ever offered:

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

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

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

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

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

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

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

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

Buchanan v. Angelone, 522 U.S. at 215-211.

         D. AEDPA Review

         Petitioner's eighth claim for federal habeas relief relies upon the Supreme Court's opinions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002) 136 S.Ct. 616 (2016). Petitioner's arguments in support of his eighth claim misconstrue the holdings in Ring and Apprendi, as well as fail to anticipate the Supreme Court's subsequent opinions in Blakely v. Washington, 542 U.S. 296, (2004), and Hurst v. Florida, 136 S.Ct. 616 (2016).

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

         Two years later, in Ring v. Arizona, the Supreme Court applied the holding and its reasoning in Apprendi to strike down a death sentence in a case in which the jury had declined to find the defendant guilty of premeditated murder during the guilt-innocence phase of a capital trial (instead finding the defendant guilty only of felony murder) but a trial judge subsequently concluded the defendant should be sentenced to death based upon factual determinations that (1) the offense was committed in expectation of receiving something of pecuniary value (i.e., the fatal shooting of an armored van guard during a robbery) and (2) the foregoing aggravating factor outweighed the lone mitigating factor favoring a life sentence (i.e., the defendant's minimal criminal record).[119] Ring v. Arizona, 536 U.S. at 609. The Supreme Court emphasized, as it had in Apprendi, the dispositive question "is not one of form, but of effect": "[i]f a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact - no matter how the State labels it - must be found by a jury beyond a reasonable doubt." Id., 536 U.S. at 602. "A defendant may not be exposed to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone." Id., 536 U.S. at 602 (quoting Apprendi, 530 U.S. at 483). Because Ring would not have been subject to the death penalty under Arizona law based solely upon the jury's verdict (and but for the trial judge's factual determination as to the existence of an aggravating factor), the Supreme Court declared Ring's death sentence violated the right to trial by jury protected by the Sixth Amendment. Id., 536 U.S. at 609.

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

         In Hurst v. Florida, the Supreme Court struck down as a violation of the principles announced in Apprendi and Ring a death sentence imposed by a Florida judge after the jury at the guilt-innocence phase of Hurst's trial convicted him of first-degree murder but failed to specify which of the two theories of murder submitted (i.e., premeditated murder or felony murder for an unlawful killing during a robbery) it believed. Hurst, 136 S.Ct. at 619-20. The Florida felony murder statute at the time of Hurst's trial, as was true for Arizona's felony murder statute at the time of Ring's trial, did not require a jury finding of the specific intent to kill.[120]Consistent with Florida's hybrid capital sentencing scheme, the sentencing court held an evidentiary hearing before the jury, and the jury recommended a sentence of death. After the Florida Supreme Court vacated Hurst's first sentence, the sentencing judge conducted a new evidentiary hearing, instructing the jury it could recommend a death sentence if it found at least one aggravating circumstance beyond a reasonable doubt, i.e., either the murder was especially heinous, atrocious, or cruel, or the murder was committed while Hurst was committing a robbery. At the conclusion of the second sentencing hearing, the jury recommended death by a vote of 7 to 5. In her sentencing order, the trial judge relied upon her independent determination that the evidence established statutory aggravating factors of (1) the capital felony was especially heinous, atrocious, or cruel and (2) the capital felony was committed while the defendant was engaged, or was an accomplice, in the commission or an attempt to commit, or flight after committing or attempting to commit any robbery, i.e., Fla. Stat. § 921.141(6)(d) & (h) (2010). The Supreme Court held the Sixth Amendment and Due Process Clause jointly require that each element of a crime be proved to a jury beyond a reasonable doubt. Hurst, 136 S.Ct. at 621. The Supreme Court described its prior holding in Apprendi as follows: "any fact that 'exposes the defendant to a greater punishment than that authorized by the jury's guilty verdict' is an 'element' that must be submitted to a jury." Id. (emphasis added). The Supreme Court concluded Hurst's death sentence was invalid because the sentencing judge, not a jury, found the aggravating circumstance necessary for the imposition of the death penalty under Florida law. Id., at 624.

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

         What distinguishes Petitioner's trial from the constitutionally defective capital murder trials in Hurst and Ring, and what distinguishes the holding in Apprendi from the circumstances of Petitioner's case, is the fact Petitioner's capital sentencingywry made all the factual determinations at the guilt-innocence phase of Petitioner's trial (unanimously and beyond a reasonable doubt) necessary to render Petitioner eligible for the death penalty under Alabama law (i.e., finding Petitioner (1) intentionally murdered Mary Gordon and Sylvia Gordon and (2) did so in the course of committing burglary, robbery, and sexual assault). As the Supreme Court explained in Hurst, its holding in Apprendi was that "any fact that 'exposes the defendant to a greater punishment than that authorized by the jury's guilty verdict' is an 'element' of the offense that must be submitted to ajury." Hurst, 136 S.Ct. at 621. The jury's factual findings at the guilt-innocence phase of Petitioner's capital murder trial rendered Petitioner eligible for the death penalty within the meaning of the Supreme Court's Eighth Amendment jurisprudence. See Tuilaepa v. California, 512 U.S. at 971-72 ("To render a defendant eligible for the death penalty in a homicide case, we have indicated that the trier of fact must convict the defendant of murder and find one 'aggravating circumstance' (or its equivalent) at either the guilt or penalty phase."). Petitioner's jury made guilt-innocence phase factual findings, unanimously and beyond a reasonable doubt, that he (1) intentionally killed Sylvia Gordon in the course of the same scheme or course of conduct in which he intentionally killed Mary Gordon, (2) intentionally killed Sylvia Gordon in the course of committing the burglary of the dwelling of Mary and Sylvia Gordon, (3) intentionally killed Mary Gordon in the course of committing the burglary of the dwelling of Sylvia Gordon, (4) intentionally killed Sylvia Gordon in the course of committing the robbery of Sylvia or Mary Gordon, (5) intentionally killed Mary Gordon in the course of committing the robbery of Mary Gordon, and (6) intentionally killed Mary Gordon in the course of committing the rape of Mary Gordon.[121] These factual findings were all that were necessary under applicable Alabama law and the Eighth Amendment to render Petitioner eligible to receive a sentence of death.

         The Supreme Court's Sixth and Eighth Amendment jurisprudence requires that all factual determinations necessary to render a defendant eligible for a sentence of death must be made unanimously and beyond a reasonable doubt by a jury. The juries in Ring and Hurst rendered ambiguous guilty verdicts on charges of first-degree murder. Those charges were premised or potentially premised upon felony murder theories that did not require the prosecution to establish beyond a reasonable doubt that the defendant acted with the specific intent to kill. Likewise, the ambiguous guilty verdicts in Ring and Hurst did not establish that the juries in those cases had concluded unanimously and beyond a reasonable doubt the existence of an aggravating circumstance that both (1) did not apply to every defendant convicted of murder and (2) was not unconstitutionally vague.[122] See Tuilaepa, 512 U.S. at 972 (the aggravating circumstance must apply only to a subclass of defendants convicted of murder and may not be unconstitutionally vague). In stark contrast, Petitioner's guilty verdict on the capital murder counts against him necessarily included factual findings (unanimously and beyond a reasonable doubt) that Petitioner intentionally killed Mary and Sylvia Gordon in the course of (1) the same scheme or course of conduct and (2) a burglary, robbery, and rape. Petitioner's guilty verdict did not suffer from any of the ambiguities present in Ring or Hurst. For this reason, Petitioner's death penalty does not suffer from the same constitutional defect that took place during the trials of Ring and Hurst. Likewise, the Petitioner's death sentence does not violate the constitutional rule announced in Apprendi. Petitioner's trial conformed in all respects to the Sixth and Eighth Amendment requirements applicable to the eligibility determination of the capital sentencing process in a capital sentencing proceeding.

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

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

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

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

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

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

         Petitioner received exactly the type of individualized assessment of his culpability in the context of all the mitigating evidence presented during trial when (1) the jury considered all relevant mitigating evidence presented during either phase of trial, (2) the jury made its sentencing recommendation (after weighing only those aggravating circumstances it determined had been established beyond a reasonable doubt against all the mitigating circumstances), and (3) the trial judge issued his findings and conclusions in his sentencing order (which findings were dictated, in part, by the jury's unanimous findings beyond a reasonable doubt that the Petitioner's capital offenses (1) included multiple murders committed in the same scheme or course of conduct and (2) occurred in the course of a burglary, robbery, and rape).[123]

         The jury made determinations at the guilt-innocence phase of trial that (1) Petitioner's intentional capital offenses took place in the course of a burglary, robbery, and rape and (2) Petitioner intentionally killed one person in the course of the same scheme or course of conduct in which he intentionally killed a second person. The jury made those determinations unanimously and beyond a reasonable doubt. Those determinations rendered Petitioner eligible to receive the death penalty under both Alabama law and the Supreme Court's Eighth and Sixth Amendment jurisprudence. The state trial court was constitutionally obligated to consider the circumstances of Petitioner's offense when it made the selection determination at the punishment phase of Petitioner's capital murder trial. It did so.

         After the jury unanimously found Petitioner guilty beyond a reasonable doubt of all six counts of capital murder in the indictment, Petitioner received from both the advisory jury and the trial court individualized consideration of the circumstances of his offense and the mitigating aspects of his character and background. This is all the Eighth and Sixth Amendments required in connection with the selection decision.

         E. Conclusion

         The state habeas court's rejection on the merits of Petitioner's Ring/Apprendi claim during the course of Petitioner's Rule 32 proceeding was neither (1) contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state habeas corpus proceeding. Petitioner's eighth claim does not warrant federal habeas corpus relief.

         V. PROSECUTORIAL JURY ARGUMENT

         A. The Claim

         In his seventh claim for federal habeas corpus relief, Petitioner argues the prosecution employed improper jury argument at both phases of his June 1996 capital murder trial (Doc. # 5, at pp. 52-57; Doc. # 64, at pp. 186-203).

         B. State Court Disposition

         Petitioner included challenges to the prosecutors' guilt-innocence phase and sentencing phase jury arguments as his eleventh and twelfth claims in his appellant's brief.[124] The Alabama Court of Criminal Appeals rejected those arguments on the merits, finding Petitioner failed to object to any of the allegedly improper prosecutorial comments and concluding none of the identified statements rendered either phase of Petitioner's capital trial fundamentally unfair. See Freeman v. State, 776 So.2d at 183-89 (holding all of the prosecutorial arguments identified by Petitioner were either proper summations of the evidence, reasonable inferences drawn from the evidence, proper arguments that the aggravating circumstances outweighed the mitigating circumstances, or general appeals for justice and law enforcement). The Alabama Supreme Court subsequently denied certiorari review, as did the United States Supreme Court.

         C. Clearly Established Federal Law

         In reviewing the propriety of prosecutorial closing argument, the relevant question is whether the prosecutor's comments "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)). The Supreme Court recognizes that States have "a legitimate interest in counteracting mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family." Payne v. Tennessee, 501 U.S. 808, 825 (1991). The State may properly conclude that, "for the jury to assess meaningfully the defendant's moral culpability and blame worthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant." Id.

         D. AEDPA Review

         1. The Proper Scope of Prosecutorial Jury Argument

         To find prosecutorial misconduct warranting a new trial, the Eleventh Circuit applies a two-pronged test: (1) the remarks must be improper and (2) the remarks must prejudicially affect the substantial rights of the defendant. Conner v. GDCP Warden, 784 F.3d 752, 769 (11th Cir. 2015), cert, denied, 136 S.Ct. 1246 (2017). To satisfy the second prong, the prosecutor's improper comments must have "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Id. (quoting Darden v. Wainwright, 411 U.S. at 181). In determining whether prosecutorial arguments are sufficiently egregious to result in the denial of due process, the Eleventh Circuit considers the statements in the context of the entire proceeding, including factors such as (1) whether the remarks were isolated, ambiguous, or unintentional; (2) whether there was a contemporaneous objection by defense counsel; (3) the trial court's instructions; and (4) the weight of aggravating and mitigating factors. Conner v. GDCP Warden, 784 F.3d at 769 (quoting Land v. Allen, 573 F.3d 1211, 1219-20 (11th Cir. 2009), cert, denied, 559 U.S. 1072 (2010)).

         The same standard applies to allegedly improper prosecutorial arguments at the sentencing phase of a capital murder trial. See Price v. Allen, 679 F.3d 1315, 1326 (11th Cir. 2012) (holding a federal habeas corpus petitioner "must show that 'there has been a violation of due process,' which 'occurs if, but only if, the improper argument rendered the sentencing stage trial fundamentally unfair.'" (quoting Romina v. Head, 253 F.3d 1349, 1366 (11th Cir. 2001), cert, denied, 535 U.S. 1011 (2002)), cert, denied, 568 U.S. 1212 (2013). "An improper prosecutorial argument has rendered a capital sentencing proceeding fundamentally unfair if there is a reasonable probability that the argument changed the outcome, which is to say that absent the argument the defendant would not have received a death sentence." Price v. Allen, 679 F.3d at 1326 (quoting Romina v. Head, 253 F.3d at 1366).

         Federal courts recognize as proper four areas for prosecutorial jury argument: (1) summation of the evidence; (2) reasonable inferences drawn from the evidence; (3) replies or answers to opposing counsel's argument; and (4) pleas for law enforcement and justice.[125]

         Alabama law likewise recognizes as appropriate these same four areas of prosecutorial jury argument.[126]

         2. The Prosecution's Guilt-Innocence Phase Jury Arguments

         Petitioner did not object to any of the guilt-innocence phase evidence about the Petitioner's victims presented by the prosecution through the testimony of Deborah Gordon Hosford (i.e., her testimony concerning Sylvia Gordon's efforts to obtain her high school diploma and Mary Gordon's efforts to hold down a job and be a single mother to her two daughters).[127] Likewise, Petitioner did not object to any of the prosecutor's closing argument at the guilt-innocence phase of trial summarizing the testimony of this witness.[128] As the state appellate court noted, the trial court repeatedly instructed the jury that the comments and argument of the lawyers were not evidence to be considered by the jury in reaching its verdict or in recommending a sentence. Freeman v. State, 776 So.2d at 184. Having independently reviewed the entire record from Petitioner's June 1996 capital murder trial, this court agrees with the state appellate court: the prosecutor's closing arguments in question merely summarized the testimony of Mrs. Hosford already before the jury or drew reasonable inferences from that same testimony. The evidence of Petitioner's guilt was overwhelming.[129] The prosecution's comments addressing the victims' character made during closing argument at the guilt-innocence phase of Petitioner's latest capital murder trial did not render Petitioner's trial fundamentally unfair. See United States v. Hernandez, 864 F.3d 1292, 1305 (11th Cir. 2017) ("to be reversible error, prosecutorial misconduct must raise a reasonable probability that, but for the prejudicial remarks, the outcome at trial would have been different."), cert, denied, 2018 WL 491628 (Jan 22, 2018).

         This court also agrees with the state appellate court's analysis of the prosecutor's request during guilt-innocence phase closing argument that the jury "do justice" for Petitioner's victims.[130] There is nothing improper in a prosecutor's appeal to the jury to do justice and properly perform its duty. See United States v. Bailey, 123 F.3d 1381, 1401 (11th Cir. 1997) (prosecutor's request that jury perform its civic duty was not prejudicial to defendant); United States v. Smith, 918 F.2d 1551, 1562-63 (11th Cir. 1990) (a prosecutor's appeals to the jury to act as "the conscience of the community" are not impermissible when they are not intended to inflame); United States v. Kopituk, 890 F.2d 1289, 1342-43 (11th Cir. 1982) (appeals to the jury to act as the conscience of the community, unless designed to inflame the jury, are not per se impermissible), cert, denied, 463 U.S. 1209 (1983). Viewed in context, the prosecutor's request that the jury "do justice" for Petitioner's victims did not inflame the jury or render the guilt-innocence phase of Petitioner's June 1996 murder trial fundamentally unfair.

         There is no reasonable probability the outcome of the guilt-innocence phase of Petitioner's June 1996 capital murder trial would have been different but for any or all of the prosecution's jury arguments challenged by Petitioner in this court.

         3. The Prosecution's Punishment Phase Jury Arguments

         In his federal habeas corpus petition and brief in support, Petitioner challenges the propriety of virtually the entirety of the prosecution's sentencing phase closing argument.[131] After the prosecution made its initial punishment-phase closing argument, Petitioner's trial counsel argued the jury should recommend a life sentence, pointing out that (1) Petitioner never used or threatened anyone with a butcher knife, (2) Petitioner's only prior brushes with the law involved a juvenile offense and such offenses are usually sealed and forgotten, (3) Petitioner's juvenile burglary conviction involved him and a girl who had run away from a group home breaking into a building because they needed a place to stay, which did not warrant electrocution, (4) at the time of his offense, Petitioner suffered from an extreme mental or extreme emotional disturbance and lacked the ability to conform his conduct to the law, (5) even if Petitioner's extreme mental or emotional disturbance did not justify a finding of not guilty by reason of mental disease or defect, it was relevant and germane to the question of punishment, (6) even if the evidence did not reach the level to hold Petitioner not responsible for his actions, the same evidence warranted not putting him to death, (7) Petitioner was only eighteen at the time of his offense, (8) Petitioner was acting under extreme pressure, akin to duress, (9) taking a third life would not correct the tragedy of the two lives already taken, and (10) a sentence of life without parole would ensure Petitioner would never see daylight again without somebody in a uniform being around him, and was an adequate punishment.[132] At that point, the prosecution delivered the final portion of its closing punishment phase argument, a substantial portion of which was clearly a response to the arguments made by Petitioner's trial counsel.[133]

         Petitioner complained on direct appeal, and complains in this court, that the prosecution's punishment-phase closing argument improperly suggested to jurors that they should act as "the conscience of the community" and impose the death penalty; that they should speak for the people of the community and do what was "right and just"; and that they could make a difference by punishment Petitioner for his crimes by recommending the death penalty. The state appellate court concluded the prosecution's remarks in question "were general appeals for law enforcement and justice and appeals to the jury to discharge its duties in such a manner as to punish Freeman for the commission of his crimes and to deter others from committing similar offenses." Freeman v. State, 776 So.2d at 187. Having independently reviewed the entirety of the record from Petitioner's June 1996 capital murder trial, this court agrees. Appeals for justice and law enforcement are an appropriate subject for prosecutorial jury argument. See United States v. Bailey, 123 F.3d at 1401 (prosecutor's request that jury perform its civic duty was not prejudicial to defendant); United States v. Smith, 918 F.2d at 1562-63 (a prosecutor's appeals to the jury to act as "the conscience of the community" are not impermissible when they are not intended to inflame.); United States v. Kopituk, 890 F.2d at 1342-43 (appeals to the jury to act as the conscience of the community, unless designed to inflame the jury, are not impermissible per se). A jury's consideration of the appropriateness of retribution is also proper. Spivey v. Hand, 207 F.3d 1263, 1276 (11th Cir.), cert, denied, 531 U.S. 1053 (2000).

         Petitioner complained on direct appeal, and complains in this court, that the prosecution made improper comments about the character and value of the victims' lives and improperly invited the jury to weigh the value of the lives of Mary and Sylvia Gordon against the Petitioner's life. The state appellate court concluded the comments in question were "proper comments about the characteristics of the victims and the consequences of Freeman's cutting short their lives." Freeman v. State, 776 So.2d at 187. The state appellate court implicitly rejected the Petitioner's reliance upon the Supreme Court's opinions in Payne v. Tennessee, 501 U.S. 808 (1991), and Booth v. Maryland, 482 U.S. 496 (1987). Id. (holding the prosecution may properly present and argue evidence relating to the victims and impact of the victims' death on the victims' family because this type of evidence related to the harm done by the defendant and consequently was a valid consideration in determining the punishment to be imposed). This court agrees.

         Viewed in proper context, the prosecution's punishment-phase closing arguments did not invite the jury to weigh the value of the victims' lives against the Petitioner's life. Petitioner did not object to the admission of the testimony of Deborah Gordon Hosford describing the personal qualities of her late mother and late sister. Petitioner likewise did not object at the commencement of the punishment-phase of trial when the prosecution re-offered all of the testimony and exhibits it had introduced during the guilt-innocence phase of trial; in fact, Petitioner's counsel did likewise.[134] The testimony of Mrs. Hosford was properly the subject of summation and a basis for drawing reasonable inferences by the prosecution in its punishment-phase closing jury argument. There was nothing improper about the prosecution's comments about the personal qualities of Mary and Sylvia Gordon or the impact their deaths had upon their family and society as a whole. See Payne v. Tennessee, 501 U.S. at 825 (holding States have a legitimate interest in counteracting mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.").

         The state appellate court concluded the prosecution's comment that Petitioner "believed in the death penalty" was a proper inference drawn from the evidence. Freeman v. State, 776 So.2d at 187-88. This court agrees.

         The state appellate court concluded the prosecutor's comments allegedly suggesting that, if the jury returned a recommendation in favor of a life sentence, the jury would owe Deborah Gordon Hosford an apology was an argument that the mitigating factors argued by Petitioner's trial counsel, even if proven, did not outweigh the aggravating circumstances. Freeman v. State, 776 So.2d at 188-89. This court agrees. The prosecution's argument, viewed in proper context, did not advise the jury it should vote to recommend a death sentence based on sympathy or a sense of duty the jury owed to Deborah Hosford. This court also concludes the argument in question, when viewed in proper context, was a legitimate response to the punishment-phase closing argument of Petitioner's trial counsel.

         Improper prosecutorial argument renders a capital sentencing proceeding fundamentally unfair only if there is a reasonable probability that the argument changed the outcome, which is to say that absent the argument the defendant would not have received a death sentence. Price v. Allen, 679 F.3d at 1326; Romina v. Head, 253 F.3d at 1366. This analysis must be undertaken in view of the entire record from Petitioner's third capital murder trial.

         The prosecution's evidence before the jury at the punishment phase of trial was overwhelming. At the guilt-innocence phase of Petitioner's June 1996 capital murder trial, the jury found unanimously, beyond a reasonable doubt that (1) Petitioner intentionally killed Mary and Sylvia Gordon by stabbing each of them in the course of the same criminal episode and (2) Petitioner committed those murders in the course of committing the felonies of burglary, robbery, and rape. Viewed in the light most favorable to the jury's verdict, the evidence before the jury at the punishment phase of trial also established that Petitioner (1) stabbed or cut Mary Gordon more than ten times, several of which were inflicted post-mortem, (2) sexually assaulted Mary Gordon after he delivered at least one stab wound to her back, (3) stabbed or cut Sylvia Gordon more than twenty times, (4) posed Sylvia in a lurid manner on her bed with a blanket over her with her blouse and bra pulled up and over her neck, (5) ripped from the wall or cut the wires of every phone in the house for the express purpose of preventing his victims from calling for help, (6) took the keys to Mary Gordon's vehicle and drove away from the crime scene with his bicycle in the trunk of his car, (7) drove past and parked away from his apartment to avoid being seen by his roommate, (8) cleaned himself up and went to work, (9) upon his arrest, denied any knowledge of the murders of Sylvia and Mary Gordon, (10) days later confessed that he "blanked out" while talking with Sylvia Gordon and awoke later to find a knife in his hand, (11) confessed he felt he had "no choice" but to stab Mary Gordon, (12) confessed Mary Gordon attempted to flee after he stabbed her but he pursued her into her bedroom, (13) months later denied during his interviews with all three Lunacy Commission physicians that he had any role in the Gordon murders, and (14) years later admitted to Dr. Renfro that he stabbed each victim at least once.[135] Finally, it is not an exaggeration to say that, once the medical examiner, Dr. Lauridson, completed his testimony, the aggravating factor that the Petitioner's capital offense was "especially heinous, atrocious, or cruel" was established virtually as a matter of law. The level of savagery inflicted on the bodies of both victims was extraordinary, even when viewed in the context of other capital offenses.

         The evidence properly before Petitioner's jury at the sentencing phase of trial included Deborah Gordon Hosford's testimony relating the personal characteristics of Sylvia and Mary Gordon, which testimony was admitted without objection at the guilt-innocence phase of trial. The trial court repeatedly instructed the jury during punishment-phase closing arguments that the remarks of counsel did not constitute evidence or the law.[136] This court concludes there is no reasonable probability that, but for any of the prosecution's punishment-phase jury arguments, the outcome of the Petitioner's punishment phase would have been different. All of the prosecution's punishment-phase jury arguments about which Petitioner now complains were either proper summations of the evidence, reasonable inferences drawn from the evidence, responses to the punishment-phase closing arguments of Petitioner's trial counsel, or proper appeals for justice and law enforcement. Proper arguments, regardless of their impact on the outcome of the case, do not render a trial unfair. Spivey v. Hand, 207 F.3d at 1276. None of the prosecution's punishment-phase closing arguments rendered Petitioner's trial fundamentally unfair.

         E. Conclusion

         The state appellate court's rejection on the merits of Petitioner's challenges to the prosecution's closing jury arguments at both phases of Petitioner's June 1996 capital murder trial was neither (1) contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's trial and state appellate proceedings. Petitioner's seventh claim does not warrant federal habeas corpus relief.

         VI. ERRONEOUS ADMISSION OF BITE-MARK TESTIMONY A. The Claim

         In his fifth claim for federal habeas relief, Petitioner argues the trial court's admission of "materially inaccurate" bite mark testimony by Dr. Michael O'Brien rendered the punishment phase of Petitioner's trial constitutionally defective under the Supreme Court's holding in Johnson v. Mississippi, 486 U.S. 578 (1981) (Doc. # 5, at pp. 26-31, 46-48; Doc. # 64, at pp. 97-105, 168-72).

         B. State Court Disposition

         As explained in Section I.H.I, above, forensic dentist Dr. Michael O'Brien testified without objection at the guilt-innocence phase of Petitioner's June 1996 capital murder trial that bite marks he observed (which were also photographed) on Petitioner's arms shortly after arrest matched the teeth marks obtained from a postmortem dental impression Dr. O'Brien obtained of Sylvia Gordon's teeth. Petitioner now argues the testimony of Dr. O'Brien was "materially inaccurate," and thereby tainted the punishment phase of his capital murder trial.

         Petitioner presented an abbreviated version of the same argument as part of several different grounds for state habeas relief in his fourth amended Rule 32 petition.[137] Petitioner presented no specific facts, no medical or legal authorities, and no evidence supporting this claim during the evidentiary hearing in Petitioner's Rule 32 proceeding. The state trial court held the claim had not been properly raised on direct appeal and, therefore, was precluded from review.[138] In the course of denying relief on Petitioner's related ineffective assistance complaint about the failure of his trial counsel to object to the admission of Dr. O'Brien's testimony, the state trial court held (1) the Alabama Supreme Court recognized the admissibility of forensic odontology expert testimony generally in Exparte Dolvin, 391 So.2d 677, 680 (Ala. 1980), (2) the Alabama Court of Criminal Appeals held in Handley v. State, 515 So.2d 121, 131 (Ala.Crim.App.1987) (holding bite mark expert testimony admissible where forensic odontology expert was fully qualified and jury had before it photographic overlays of the plaster models of bite marks and the defendant's teeth), that testimony from a dental witness regarding bite mark comparison is admissible so long as the proper predicate for the admission of expert testimony is laid, (3) Dr. O'Brien testified to his extensive qualifications as an expert in forensic odontology and bite mark analysis and was properly accepted as such, and (4) therefore, any objection Petitioner's trial counsel might have made to the admission of Dr. O'Brien's bite mark testimony would have been without merit.[139]The Alabama Court of Criminal Appeals affirmed the state trial court's denial of Petitioner's Rule 32 petition, holding in part that (1) under Alabama law, bite mark identification testimony does not require a scientific predicate for admission, (2) Dr. O'Brien was fully qualified as an expert to express an opinion on bite mark identification, and (3) even if Petitioner's trial counsel had timely objected and obtained the exclusion of Dr. O'Brien's testimony, Petitioner was not prejudiced because the evidence of Petitioner's guilt was overwhelming and bite mark evidence did not play a crucial component in the proof supporting the "heinous, atrocious, or cruel" aggravating circumstance.[140]

         Because (1) the state trial court and state appellate court both dismissed Petitioner's complaint about the admission of Dr. O'Brien's trial testimony at the punishment phase of his trial based upon procedural grounds and (2) Petitioner failed to fairly present his Johnson v. Mississippi argument to the state habeas court, this court's consideration of this claim is necessarily de novo. See Porter v. McCollum, 558 U.S. 30, 39 (2009) (holding de novo review of the allegedly deficient performance of petitioner's trial counsel was necessary because the state courts had failed to address this prong of Strickland analysis); Rompilla v. Beard, 545 U.S. 374, 390 (2005) (holding de novo review of the prejudice prong of Strickland required where the state courts rested their rejection of an ineffective assistance claim on the deficient performance prong and never addressed the issue of prejudice); Wiggins v. Smith, 539 U.S. 510, 534 (2003) (holding the same). This court is authorized to deny a claim for federal habeas relief when the claim is subject to rejection under de novo review, regardless of whether AEDPA deference applies. See Berghuis v. Thompkins, 560 U.S. 370, 390 (2010) (holding federal courts can deny writs of habeas corpus under § 2254 by engaging in de novo review when it is unclear whether AEDPA deference applies, because a habeas petitioner will not be entitled to habeas relief if his claim is rejected on de novo review); Conner v. GDCP Warden, 784 F.3d 752, 767 & n.16 (11th Cir. 2015) ("[B]ecause we conclude that Mr. Conner would not be entitled to habeas relief under de novo review, we affirm the District Court's denial of relief under that standard without resolving whether AEDPA deference applies."), cert, denied, 136 S.Ct. 1246 (2016); Reese v. Sec'y, Fla. Dep't of Corr., 675 F.3d 1277, 1291 (11th Cir.) ("The Supreme Court has made clear that we are entitled to affirm the denial of habeas relief in this manner: 'a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review.'"), cert, denied, 568 U.S. 905 (2012).

         C. Federal Habeas Review of the Admission of Evidence

         State rule-makers "have broad latitude under the Constitution to establish rules excluding evidence from criminal trials." Nevada v. Jackson, 569 U.S. 505, 509 (2013). Federal habeas corpus relief does not lie for errors of state law, including the allegedly erroneous admission of evidence under state evidentiary rules. Estelle v. McGuire, 502 U.S. 62, 67 (1991). It is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. Id., 502 U.S. at 67-68.

         Federal courts possess only limited authority to consider state evidentiary rulings in a habeas proceeding by a state prisoner; in such case, inquiry is limited to determining whether the evidentiary ruling was so prejudicial as to deny fundamental fairness to the criminal trial, thus violating due process principles. United States v. Hun, 368 F.3d 1359, 1363 n.3 (11th Cir. 2004) (quoting Phillips v. Wainwright, 624 F.2d 585, 588 (5th Cir. 1980))[141]; Mills v. Singletary, 161 F.3d 1273, 1289 (11th Cir. 1998), cert, denied, 528 U.S. 1082 (2000); Sims v. Singletary, 155 F.3d 1297, 1312 (11th Cir. 1998), cert, denied, 527 U.S. 1025 (1999). A denial of fundamental fairness occurs whenever the improper evidence is material in the sense of a crucial, critical, highly significant factor. Mills v. Singletary, 161 F.3d at 1289; Snowden v. Singletary, 135 F.3d 732, 737 (11th Cir.), cert, denied, 525 U.S. 963 (1998). The erroneous admission of evidence is likely to be harmless under the standard of Brecht v. Abrahamson, 507 U.S. 619, 623 (1993), where there is significant corroborating evidence, or where other evidence of guilt is overwhelming. Trepal v. Sec'y, Fla. Dep't of Corr., 684 F.3d 1088, 1114 (11th Cir. 2012), cert, denied, 568 U.S. 1237 (2013).

         D. De Novo Review

         Petitioner argues the testimony of Dr. O'Brien concerning the bite marks on Petitioner's arms was critical to the jury's finding on the "heinous, atrocious, or cruel" aggravating factor. Having reviewed the entire record from Petitioner's June 1996 capital murder trial, this court respectfully disagrees.[142] The crime scene photographs and video, as well as Dr. Lauridson's testimony concerning the results of his autopsies of the victims' bodies, established the "heinous, atrocious, or cruel" nature of the Petitioner's offenses without any assistance from Dr. O'Brien. Dr. O'Brien's testimony only demonstrated that Sylvia Gordon had attempted to fight back during petitioner's assault upon her; it added very little to Dr. Lauridson's graphic testimony detailing the horrific scope and nature of the physical injuries inflicted upon Sylvia and Mary Gordon, some of which were post-mortem.[143] Nor did Dr. O'Brien's bite-mark testimony add anything to the overwhelming forensic evidence establishing Petitioner sexually assaulted Mary Gordon. Dr. O'Brien's odontology testimony also added nothing to the overwhelming evidence establishing that Petitioner committed his double homicide while in the course of committing a robbery. Thus, Dr. O'Brien's bite-mark testimony was not a "critical, crucial, or highly significant" factor at the punishment phase of Petitioner's trial. In fact, the prosecution failed to make any mention of Dr. O'Brien's testimony or the bite marks on Petitioner's arms during closing jury argument at the punishment phase of Petitioner's June 1996 capital murder trial.[144] The admission of Dr. O'Brien's bite-mark testimony did not render the punishment phase of Petitioner's trial fundamentally unfair.

         Moreover, as explained above, in the course of Petitioner's Rule 32 proceeding, both the state trial court and state appellate court concluded, as a matter of Alabama evidentiary law, that Dr. O'Brien's trial testimony was admissible. State court rulings on matters such as the admissibility of evidence under state evidentiary rules and state case law bind a federal court in habeas corpus proceedings. See Bradshaw v. Rickey, 546 U.S. 74, 76 (2005) ("We have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."); hoggins v. Thomas, 654 F.3d 1204, 1228 (11th Cir. 2011) ("Alabama law is what the Alabama courts hold that it is."); Hendrix v. Sec 'y, Fla. Dep 't o/Corr., 527 F.3d 1149, 1153 (11th Cir.) (state court ruling on issue of recusal under Florida state law bound federal habeas court), cert, denied, 555 U.S. 1004 (2008). Thus, insofar as Petitioner's fifth claim herein is premised upon assertions that the trial court erroneously applied applicable state law when it admitted without objection Dr. O'Brien's testimony, that argument is conclusively refuted by the state trial court and state appellate court's findings to the contrary. It also furnishes no basis for federal habeas corpus relief. Estelle v. McGuire, 502 U.S. at 67-68.

         Finally, Petitioner's reliance on the Supreme Court's holding in Johnson v. Mississippi is misplaced. In Johnson, a state court sentenced Johnson to death in 1982 citing his 1963 New York felony conviction for assault with intent to commit rape as one of three aggravating factors supporting the sentence.[145] The prosecution presented no evidence about the conduct underlying the prior conviction but relied instead on a single authenticated copy of a document indicating the conviction. Johnson v. Mississippi, 486 U.S. at 586 ("[T]he jury was not presented with any evidence describing that conduct - the document submitted to the jury proved only the facts of conviction and confinement, nothing more."). The prosecution repeatedly referred to that evidence in the sentencing hearing. Id., 486 U.S. at 581 (quoting the prosecutor at trial as saying "I say that because of having been convicted of second degree assault with intent to commit first degree rape and capital murder that Samuel Johnson should die"). "Thus, the death sentence [in Johnson] relied on the mere fact of conviction." Spivey v. Head, 207 F.3d 1263, 1281 (11th Cir.), cert. denied, 531 U.S. 1053 (2000). After his Mississippi conviction and sentence, Johnson's attorneys successfully prosecuted a post-conviction proceeding in New York in which they argued Johnson had been denied his right to appeal; in the course of his subsequent appeal, the New York appellate court reversed Johnson's conviction. Johnson v. Mississippi, 486 U.S. at 582. The Mississippi Supreme Court denied Johnson post-conviction relief. The United States Supreme Court reversed, holding that allowing the death sentence to stand although based in part on a reversed conviction violated the Eighth Amendment. Id., 486 U.S. at 586 ("The prosecution repeatedly urged the jury to give it [Johnson's prior conviction] weight in connection with its assigned task of balancing aggravating and mitigating circumstances 'one against the other.'").

         As explained above, in contrast to Johnson, at the punishment phase of Petitioner's June 1996 capital murder trial, (1) disregarding Dr. O'Brien's bite-mark identification testimony, the prosecution introduced overwhelming evidence establishing the heinous, atrocious, and cruel nature of the Petitioner's capital offenses and (2) both the jury and judge were statutorily bound to consider as aggravating the fact the Petitioner committed his multiple capital offenses in the course of a burglary, robbery, and rape. Petitioner argues for the first time in his pleadings in this court that he has located an unidentified forensic dentist who could have furnished testimony at Petitioner's 1996 capital murder trial that Petitioner asserts would have refuted Dr. O'Brien's bite-mark identification testimony. At best, Petitioner's new arguments raise an issue as to the credibility or weight to be given to Dr. O'Brien's expert opinion testimony, not its admissibility. As explained above, the state appellate court's finding that Dr. O'Brien was fully qualified under Alabama law to render an opinion on the bite-mark evidence[146] binds this federal habeas court. Bradshaw v. Richey, 546 U.S. at 76; hoggins v. Thomas, 654 F.3d at 1228; Hendrix v. Sec 'y, Fla. Dep 't o/Corr., 527 F.3d at 1153. The possibility that a different forensic dentist might have been available at the time of Petitioner's 1996 trial to present a contradictory opinion on the bite-mark evidence does not render Dr. O'Brien's trial testimony "materially inaccurate" within the meaning of Johnson or inadmissible under state law. More importantly, unlike the subsequently overturned prior conviction that formed the sole evidentiary basis supporting one aggravating factor in Johnson, Dr. O'Brien's bite-mark testimony was so insignificant the prosecution failed to make any mention of it or any allusion to it during closing punishment-phase jury argument at Petitioner's June 1996 trial.

         Petitioner did not object to the admission of Dr. O'Brien's expert opinion testimony regarding the bite-mark evidence. Thus, Petitioner's fifth claim herein is an argument that he was prejudiced when the state trial court failed to exclude Dr. O'Brien's bite-mark opinion testimony sua sponte. The Supreme Court's harmless error standard announced in Brecht v. Abrahamson, 507 U.S. 619 (1993), governs this court's analysis of whether the marginal impact of Dr. O'Brien's opinion testimony on the outcome of the punishment phase of Petitioner's trial warrants federal habeas relief. See Spivey v. Hand, 207 F.3d at 1282 (holding Brecht harmless error standard applied to a Johnson v. Mississippi claim); Duest v. Singletary, 997 F.2d 1336, 1338 (11th Cir. 1993) (holding the same), cert, denied, 510 U.S. 1133 (1994). Under Brecht, habeas petitioners are not entitled to habeas relief based on trial error unless they can establish that it resulted in "actual prejudice." Brecht v. Abrahamson, 507 U.S. at 637. "Actual prejudice" occurs when constitutional error "has substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 647; Duest v. Singletary, 997 F.2d at 1338.

         This court concludes admission of Dr. O'Brien's expert opinion testimony did not result in "actual prejudice" to Petitioner. Dr. O'Brien's bite-mark testimony reflected what Sylvia Gordon had done or might have done to Petitioner, not what Petitioner did to his victims.[147] Dr. Lauridson's uncontroverted testimony, the other forensic evidence, and the crime scene photographs established beyond any reasonable doubt the grisly (i.e., heinous, atrocious, and cruel) nature of Petitioner's capital offenses. The jury and sentencing judge were both statutorily bound to consider as aggravating the fact that Petitioner committed multiple intentional murders during the course of a burglary, a robbery, and a rape. The prosecution made no mention of Dr. O'Brien or his bite-mark testimony during closing arguments at the punishment phase of Petitioner's June 1996 trial.

         Petitioner's Johnson claim fails on the merits for two equally convincing reasons: first, Petitioner has failed to identify any legal authority establishing the state trial court's admission without objection of Dr. O'Brien's expert opinion testimony was erroneous under applicable state or federal law; second, this court independently concludes after de novo review that admission of Dr. O'Brien's expert opinion testimony on the bite-mark evidence did not have a substantial or injurious effect or influence on the jury's verdict at the punishment phase of Petitioner's June 1996 capital murder trial.

         E. Conclusion

         After de novo review, this court concludes Petitioner's fifth claim herein does not warrant federal habeas corpus relief.

         VII. MIRANDA CLAIM

         A. The Claim

         In his second claim for federal habeas relief, Petitioner argues his Fifth and Fourteenth Amendment rights were violated by the trial court's admission of Petitioner's post-arrest statements on March 14, 1988, made after Petitioner told a law enforcement officer that he "couldn't talk about" his offense (Doc. # 5, at pp. 13-15; Doc. #64, at pp. 3-50).

         B. State Court Disposition

         Petitioner presented the same Fifth and Fourteenth Amendment arguments in his fifth claim in his appellant's brief.[148] As the state appellate court correctly noted (Freeman v. State, 776 So.2d at 173), Petitioner did not contest the admission of any of his post-arrest statements prior to or during his June 1996 trial.[149] The state appellate court rejected this claim on the merits as follows:

The record reveals that Freeman was initially advised of his Miranda rights when he was arrested at his apartment on March 12, 1988. Officer Terry Jett with the Montgomery Police Department testified that after Freeman was taken from the apartment to police headquarters for questioning, he was again advised of his Miranda rights before he was questioned. Jett testified that Freeman acknowledged that he understood those rights, that he signed a waiver to that effect, and that he agreed to talk to the police. In his March 12 statement to Jett, which was also audiotaped, Freeman denied any knowledge of, or participation in, the murders of Mary Gordon and Sylvia Gordon.
The record further reveals that on March 14, 1988, Detective Gary Graves, who at that time was a detective with the Montgomery Police Department and the case agent in charge of the Gordon case, went to the jail to question Freeman and to photograph bite marks on Freeman's arm. Graves testified that he advised Freeman of his Miranda rights, and that Freeman signed the rights waiver form stating that he understood his rights and that he agreed to waive those rights and talk to the police. Graves testified that he then asked Freeman what happened on the day of the murders. Graves stated that in response to that question, Freeman told him "he couldn't talk about it." (R.598.) In an effort to clarify Freeman's comment, Graves then said to Freeman, "If you can't talk about it, can you write it for me?" (R. 599.) Graves testified that Freeman said that he would, and he then proceeded to handwrite two statements denying any involvement in the murders in the first statement, but admitting in the second statement to killing both Mary Gordon and Sylvia Gordon.
Freeman maintains that he invoked his right to remain silent when he told Graves "he couldn't talk" about the murders. We do not, as Freeman does, interpret this statement to be a clear and unequivocal invocation of Freeman's right to remain silent.
Once informed of Miranda rights, an accused has the burden of indicating in some manner his wish to remain silent. "When a purported invocation of a Fifth Amendment privilege is ambiguous, the police may question the accused for the narrow purpose of clarifying the equivocal request." Here, Freeman's response to Graves's question was not an unequivocal invocation of his right to remain silent. The response, instead, appears to be Freeman's simply saying that he did not like talking about the brutal murders. Freeman was, however, more than willing to handwrite a statement about the murders. As the State correctly points out in its brief to this court, Freeman's response to police was not an assertion of his right to remain silent, but instead indicated Freeman's desire to conduct the interview the way he wanted it conducted. This is further evidenced, as the State also points out in its brief, by Freeman's refusing to make a videotaped statement, while agreeing to make an audiotaped statement. Jett's and Grave's testimony at trial clearly indicated that Freeman wanted to answer their questions. In fact, both Jett and Graves testified that Freeman was cooperative throughout all of the questioning, and that he was responsive to all their questions. For these reasons, we conclude that Freeman did not indicate that he wished to remain silent, thus, there was no violation of his Miranda rights in this regard.

Freeman v. State, 776 So.2d at 173-75 (citations and quotations omitted).

         C. Clearly Established Federal Law

         In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court formulated a warning that must be given to suspects before they can be subjected to custodial interrogation. Berghuis v. Thompkins, 560 U.S. 370, 380 (2010). The substance of that warning still must be given to suspects today:

He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

Berghuis v. Thompkins, 560 U.S. at 380 (quoting Miranda v. Arizona, 384 U.S. at 479).

         Police are not required to obtain a formal waiver of Miranda rights before questioning a custodial suspect; the Miranda rule and its requirements are met if a suspect receives adequate Miranda warnings, understands them, and has an opportunity to invoke his rights before giving any answers or admissions. Berghuis v. Thompkins, 560 U.S. at 384-87. Any waiver, express or implied, may be contradicted by an invocation at any time; if the right to counsel or the right to remain silent is invoked at any point during questioning, further interrogation must cease. Id., 560 U. S. at 387-88.

         The Supreme Court has held a suspect's invocation of his Sixth Amendment's right to counsel following administration of Miranda warnings must be unambiguous, i.e., "requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney." Davis v. United States, 512 U.S. 452, 459 (1994) (quoting McNeil v. Wisconsin, 501 U.S. 171, 178 (1991)). "If an accused makes a statement concerning the right to counsel 'that is ambiguous or equivocal' or makes no statement, the police are not required to end the interrogation or ask questions to clarify whether the accused wants to invoke his or her Miranda rights." Berghuis v. Thompkins, 560 U.S. at 381 (quoting Davis v. United States, 512 U.S. 452, 461-62 (1994)). The Supreme Court has applied the same standard to assertions of the Fifth Amendment right to remain silent following administration of Miranda warnings. See Berghuis v. Thompkins, 560 U.S. at 381 ("There is good reason to require an accused who wants to invoke his or her right to remain silent to do so unambiguously."). "If an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused's unclear intent and face the consequence of suppression 'if they guess wrong.'" Id., 560 U.S. at 382.

         D. AEDPA Review

         In Berghuis, the Supreme Court held that a suspect's silence in response to several hours of custodial interrogation did not, standing alone, constitute an unambiguous assertion of his right to remain silent. Id., 560 U.S. at 382. The Eleventh Circuit applies the Davis standard requiring unequivocal and unambiguous assertions of both the right to counsel and right to remain silent before custodial interrogations must be terminated. See Coleman v. Singletary, 30 F.3d 1420, 1424 (11th Cir. 1994) ("Because this concern applies with equal force to the invocation of the right to remain silent, and because we have previously held that the same rule should apply in both contexts, we hold that the Davis rule applies to invocations of the right to remain silent."), cert, denied, 514 U.S. 1086 (1995).

         The Eleventh Circuit has repeatedly rejected efforts of criminal defendants to assert violations of their Fifth Amendment right to remain silent following ambiguous or equivocal assertions of that right very similar to Petitioner's statement that "he couldn't talk about it," which statement Petitioner made after administration of Miranda warnings and Petitioner's execution of a formal written waiver of his constitutional rights. See Owen v. Fla. Dep't of Corr., 686 F.3d 1181, 1192-94 (11th Cir. 2012) (holding suspect's statements "I'd rather not talk about it" and "I don't want to talk about it," both made in response to questions about specific, discrete details of the crime, not general questions about the crime itself, and following which the suspect continued to talk with police, did not constitute unambiguous assertions of the right to remain silent), cert, denied, 569 U.S. 960 (2013); Coleman v. Singletary, 30 F.3d at 1424-25 (holding equivocal a defendant's statement in response to a question about his public defender: "I don't know. But if he said to stop it I don't want to do what he said not to do"); United States v. Mendoza-Cecelia, 963 F.2d 1467, 1472 (11th Cir.) (holding equivocal a suspect's statement: "I don't know if I need a lawyer, maybe I should have one, but I don't know if it would do me any good at this point."), cert, denied, 506 U.S. 964 (1992).

         Petitioner does not allege any specific facts showing his execution of a formal written waiver of his Miranda rights on March 14, 1988 for Detective Graves (State Exhibit 8) prior to any questioning by Detective Graves was anything other than voluntary, intelligent, and knowing. Prior to his conversation with Detective Graves on that date, Petitioner had executed a separate formal waiver of his rights (State Exhibit 7) and submitted to having his arm shaved and the bite marks on his arms photographed and examined by Dr. O'Brien and Dr. Lauridson.[150] Detective Graves's questioning of Petitioner on March 14, 1988 took place prior to the Supreme Court's issuance of its opinion in Davis. At that point, Eleventh Circuit case law required law enforcement officers confronted with an ambiguous or equivocal assertion of the right to remain silent to ask further questions to clarify the request. See, e.g., United States v. Pena, 897 F.2d 1075, 1081 (11th Cir. 1990) ("where an individual in custody makes an equivocal invocation of his right to remain silent, further questioning must be restricted to clarifying that request until it in fact is clarified, and no statement taken after the request but before the clarification can clear the Miranda hurdle"). This is precisely what Detective Graves did when he asked Petitioner if he were willing to write a statement about the events of March 11, 1988.

         The government has no duty to cease interrogating a suspect where the suspect's invocation of his Miranda rights is equivocal. See United States v. Dowd, 451 F.3d 1244, 1250 (11th Cir.) (a suspect's refusal to sign a formal waiver did not require cessation of interrogation), cert, denied, 549 U.S. 941 (2006). Viewed in the full context of all the events of March 14, 1988, this court finds the state appellate court concluded in an objectively reasonable manner that Petitioner's statement that "he couldn't talk about it," when asked by Detective Graves to explain "what really happened" was, at best, an ambiguous and equivocal assertion of his right to remain silent, fully justifying Detective Graves's clarifying question.

         E. Conclusion

         The Alabama appellate courts' rejection on the merits of Petitioner's Fifth Amendment Miranda claim was neither (1) contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial and direct appeal proceedings. Petitioner's second claim does not warrant federal habeas corpus relief.

         VIII. DOUBLE JEOPARDY CLAIM

         A. The Claim

         In his first claim for federal habeas corpus relief, Petitioner argues that his June 1996 trial violated Double Jeopardy principles because the state trial court erroneously granted a mistrial during Petitioner's January 1996 trial without finding, and in the absence of, manifest necessity (Doc. # 5, at pp. 10-12; Doc. # 64, at pp. 20-33).

         B. State Court Disposition

         As explained above in Section I.E., following the reversal of Petitioner's initial capital murder conviction by the state appellate court and a remand, Petitioner's first re-trial commenced in January 1996 but ended when the trial court declared a mistrial on January 31, 1996, without any objection from Petitioner.

         During the hearing held that date, the following exchanges took place:

BY THE COURT: All right, this is the State of Alabama versus David Freeman. We're here on Wednesday morning after having adjourned this past Thursday.
Mr. Ho well, you have been under a doctor's care since then, and we have continued this case on a daily basis awaiting a report of your condition, and so we are here today. For the record, if you would, state what your position is about continuing this trial?
BY MR. HO WELL: Judge, I don't feel a hundred percent today, and one of the reasons that I have been very guarded about all of this, I have been in the hospital three times before with this stuff. I'm trying to avoid a trip this time. I don't feel like I could give my -- do my best job today, and -- but I am here, I am at your pleasure. I am still -- some of the symptoms have improved, some haven't. And that's where I am, Judge.
BY THE COURT: Miss Brooks.
BY MS. BROOKS: Your honor, of course the State would prefer to proceed, but we have observed Mr. Howell and he does not appear to feeling [sic] well at all. He is extremely pale, speaking in very low tones, and of course we wish the defendant to have competent and effective counsel. We have no evidence to the contrary, and believe Mr. Howell when he says he doesn't feel well enough to proceed.
BY THE COURT: Mr. Norris, anything you want to add?
BY MR. NORRIS: Judge, I know it's -- my wife is a nurse, and I have talked to her about Allen's condition, and she has indicated to me that it's their practice that with somebody with Allen's diagnosis, to admit them in the hospital, and she was quite surprised that he hadn't, -- that that hadn't been done.
As the Court is aware, this is my first capital case, so Allen has got far more experience, and we need time so Allen could be one hundred percent to assist me and assist David.
BY THE COURT: Have either one of you lawyers consulted with Mr. Freeman about his wishes about this?
BY MR. NORRIS: Yes, sir, I have, and Mr. Freeman has indicated to me that he wants Allen to be one hundred percent, because he knows Allen did a good job for him on the first trial of this matter, and he just wishes for the Court to give it time so Allen can be one hundred percent.
BY THE COURT: All right. Well, based upon my observations and comments that the lawyers -- I think it's going to be difficult, if not impossible, for you to come complete [sic] this case, Mr. Howell, by tomorrow. So the Court reluctantly finds its only position at this time would be to declare a mistrial, to release these jurors, to release these parties, and re-schedule this matter for trial upon the completion of the recuperation of counsel.
This Court reluctantly does this, because it's been set three times. We're halfway through the trial. We've got witnesses from out of state, out of county, not the least of which is the defendant's right for a speedy trial, and the victim's right to have this case over and satisfied. So, this Court very reluctantly declares a mistrial due to these circumstances, and will re-schedule this matter at the earliest convenience.
I'm going to ask you lawyers if you would please review your calendars as you leave here today, -- when you leave here today, and in conjunction with the court's calendar with the jurors being here, give me three proposals in the immediate future so that week [sic] get this case retried.
BY MS. BROOKS: Judge, Jayne had wisely thought ahead and suggested that, and we have all looked at February 26. I don't know if Mr. Howell has had a chance -- ?
BY THE COURT: He didn't bring his calendar -- well, let me ask the question, do you have your calendar? Are you prepared to find another day to try this case?
BY MR. HOWELL: I don't have my calendar. Jayne had mentioned February 26 to me, so I asked my secretary to look at my calendar. I've got some depositions that week, including one out of state, but that could be changed because we don't have an immediate trial date in that case.
BY THE COURT: Mr. Norris, do you know about that week?
BY MR. NORRIS: Off the top of my head, the only thing I know that I have would be February 28, which is a domestic hearing. It's possible that it could settle, it's possible that it will not. It's a possibility I could get Judge Drinkard to continue that case.
BY THE COURT: Ms. Brooks, what does your calendar reveal?
BY MS. BROOKS: Your Honor, all three State's counsel are available the week of February 26. Mr. McNeil advised me that he has another capital case, another Judge, is not yet set, but there is a hearing tomorrow, and there is a date considered. But if this case would be set first, it would have priority, and there's another date available for that.
BY MR. McNEIL: It is, and I have alerted Judge Greenhaw's office of that fact, Your honor.
BY THE COURT: All right. Folks, we'll set this case for February 26. If you lawyers would please make arrangements to have your conflicts straightened out, let me know as soon as possible if you are unable to do that. But, hearing nothing from you in the next ten days, I'll assume that you've been able to re-schedule the conflict that you have.
BY MS. BROOKS: One other matter if we could, could we ask of defense counsel if we can enter into the same stipulations, or should we continue to make efforts to get our witnesses here? If they are prepared to answer that?
BY THE COURT: Any reason to think that we would not be able to enter into the same stipulations?
BY MR. HOWELL: No, sir, same stipulations. There's no reason to bring the witnesses down.
BY THE COURT: Same stipulations would be used. Folks, if you will, file your necessary motions to withdraw all the evidence that Mr. Harris has gotten. You can, -- I guess retake possession of the exhibits and stipulations that have been entered and --.
BY MR. HOWELL: Could we just do that verbally.
BY THE COURT: Granted.
BY MS. BROOKS: Yes, sir, State moves to withdraw our evidence.
BY THE COURT: Granted. So that you would be prepared to present this case on the 26th of February.
BY MR. NORRIS: Judge, we move for our exhibits to be withdrawn.
BY THE COURT: Granted. Thank you. Hope you get better, Mr. Ho well. I want all the jurors in please, all fourteen jurors. If you would invite them in and ask them to have a seat in the jury box.

17 SCR 216-24.

         Thereafter, as explained above in Sections I.F. and I.G., Petitioner unsuccessfully sought mandamus relief from the state appellate courts, as well as federal habeas corpus relief from this court under 28 U.S.C. § 2241, arguing his re- trial would violate Double Jeopardy principles because there was no manifest necessity for the January 1996 mistrial declaration.[151]

         C. Clearly Established Federal Law

         A trial can be discontinued without barring a subsequent one for the same offense when "particular circumstances manifest a necessity" to declare a mistrial. Bluefordv. Arkansas, 566 U.S. 599, 609 (2012) (quoting Wade v. Hunter, 336 U.S. 684, 690 (1959)). Retrial after reversal of a conviction is not the type of governmental oppression targeted by the Double Jeopardy Clause. Tibbs v. Florida, 457 U.S. 41 (1982). The prototypical situation in which this rule applies is a trial court's decision to discharge a deadlocked jury. See Renico v. Lett, 559 U.S. 766, 773-74 (2010) (trial judges may declare a mistrial whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for doing so (quoting United States v. Perez. 9 Wheat. 579, 579-80 (1824)); Richardson v. United States, 468 U.S. 317, 324 (1984) ("[W]e have constantly adhered to the rule that a retrial following a 'hung jury' does not violate the Double Jeopardy Clause."). The Supreme Court applies the "manifest necessity" standard when the trial is terminated over the objection of the defendant. Oregon v. Kennedy, 458 U.S. 667, 672 (1982).

         The Supreme Court has emphasized that a pragmatic approach should be employed to determine whether "manifest necessity" exists for a mistrial:

Because of the variety of circumstances that may make it necessary to discharge a jury before a trial is concluded, and because those circumstances do not invariably create unfairness to the accused, his valued right to have the trial concluded by a particular tribunal is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury. Yet in view of the importance of the right, and the fact that it is frustrated by any mistrial, the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one. The prosecutor must demonstrate "manifest necessity" for any mistrial declaration over the objection of the defendant.

Arizona v. Washington, 434 U.S. 497, 505 (1978). The Supreme Court emphasized in Arizona v. Washington that the term "manifest necessity" cannot be applied mechanically or literally; "instead, contrary to the teaching of Webster, we assume that there are degrees of necessity and we require a 'high degree' before concluding that a mistrial is appropriate." Id., 434 U.S. at 506. The Supreme Court has also held "the state trial judge's mistrial declaration is not subject to collateral attack in a federal court simply because he failed to find 'manifest necessity' in those words or to articulate on the record all the factors which informed the deliberate exercise of his discretion." Id., 434 U.S. at 517.

         In the case of a mistrial declared at the behest of the defendant, quite different principles come into play; where the defendant elected to terminate the proceeding against him, the "manifest necessity" standard has no place in the application of the Double Jeopardy Clause. Oregon v. Kennedy, 456 U.S. at 672; United States v. Dinitz, 424 U.S. 600, 607 (1976). Where a defendant successfully seeks to avoid his trial prior to its conclusion by a motion for mistrial, the Double Jeopardy Clause is not offended by a second prosecution. United States v. Scott, 437 U.S. 82, 93 (1978).

         D. AEDPA Review

         There are no allegations in this cause that the prosecution did anything to provoke or "goad" Petitioner into requesting a mistrial. Nor is this a situation in which the prosecution actively sought a mistrial over objection from the defense. On the contrary, objective review of the transcript of the January 31, 1996 hearing set forth above reveals that (1) Petitioner's trial counsel made it very clear that Petitioner's lead trial counsel was not in any physical condition to continue with the trial, even after almost a week of continuances, (2) Petitioner and his co-counsel did not wish the trial to proceed in the absence of Petitioner's lead trial counsel, (3) the prosecution was concerned that Petitioner receive effective assistance and agreed that Petitioner's lead defendant counsel did not appear able to proceed with the trial, (4) when the trial judge raised the possibility of a mistrial, no party objected or raised any concern about such a declaration, and (5) on the contrary, the conversations between the trial court and counsel of record which followed the trial judge's declaration of a mistrial reveal all the parties had anticipated such a declaration and had already discussed exactly what to do in case of such an eventuality.

         Petitioner's trial counsel may not have explicitly requested a mistrial on January 31, 1996. Nonetheless, Petitioner's trial counsel made it abundantly clear that, despite the trial court having already granted almost a week of daily continuances, (1) the Petitioner and his trial counsel did not want Petitioner's trial to proceed in the absence of Petitioner's lead trial counsel and (2) Petitioner's lead trial counsel would be unavailable to proceed with trial due to health issues for the foreseeable future. Petitioner's trial counsel did not suggest any other alternative, such as an even lengthier continuance. Under such circumstances, the state appellate court reviewing Petitioner's mandamus petition could reasonably conclude the manifest necessity standard discussed above did not apply. Oregon v. Kennedy, 456 U.S. at 672; United States v. Scott, 437 U.S. at 93; United States v. Dinitz, 424 U.S. at 607.

         Likewise, the state mandamus court could have reasonably concluded this mistrial was obtained at the behest of the defense, not the prosecution. Petitioner voiced no objection to the declaration of a mistrial until several weeks after the trial court's declaration. There is no fact-specific allegation of any bad faith by either the prosecutor or trial court nor any allegation the mistrial in question was intended to afford the prosecution a more favorable opportunity to convict the Petitioner. The distinction between mistrials declared by the court sua sponte and mistrials granted at the defendant's request or with his consent is wholly consistent with the protections of the Double Jeopardy Clause. United States v. Dinitz, 424 U.S. at 608. Petitioner's trial judge could reasonably have believed that granting a mistrial was wholly consistent with the proffer made by Petitioner's trial counsel during the January 31, 1996 hearing. By that point, the trial court had already granted almost a week of daily continuances yet Petitioner's lead trial counsel made it abundantly clear he remained seriously ill and unable to try the Petitioner's case. Petitioner and his co-counsel were equally clear that they did not wish the trial to continue in the absence of Petitioner's lead trial counsel.

         Petitioner has failed to allege any specific facts showing that he was prejudiced in any manner by the January 1996 declaration of a mistrial. Petitioner alleges no facts showing that any beneficial evidence or testimony became unavailable to Petitioner's defense team in the period January 26 to June 18, 1996.

         Moreover, the manifest necessity doctrine permits a trial court to declare a mistrial and discharge a jury where, taking all the circumstances into consideration, there is a manifest necessity for the mistrial, or the ends of public justice would otherwise be defeated. United States v. Therve, 764 F.3d 1293, 1298 (11th Cir. 2014); United States v. Davis, 708 F.3d 1216, 1221 (11th Cir. 2013). Here, Petitioner's state trial judge listened to the presentations of counsel for both parties, mentioned the fact the trial had already been continued for almost a full week, and received no information from any party suggesting any viable alternative to mistrial existed. Significantly, the state trial judge was presented no information suggesting Petitioner's lead defense counsel would be able to return to Petitioner's trial within the immediate future. No party suggested a continuance beyond those already granted would be sufficient to enable the parties to proceed with the trial. Neither before nor after the state trial judge declared a mistrial did any party voice an objection to the declaration of a mistrial. Under such circumstances, the state court could reasonably have found the existence of manifest necessity for a mistrial. See United States v. Malekzadeh, 855 F.2d 1492, 1498 (11th Cir. 1988) (holding manifest necessity for a mistrial existed where (1) defendant expressed dissatisfaction with the performance of his trial counsel, (2) the trial court gave the defendant the options of continuing with his current counsel, proceeding pro se, or being retried with a new counsel, (3) the defendant refused to make a choice, (4) the trial court decided the trial would continue without further interruption, and (5) defendant's trial counsel then moved to withdraw), cert, denied, 489 U.S. 1029 (1989). A federal habeas court must assume that a state trial court found manifest necessity existed for a mistrial whether or not the record affirmatively reflects such a finding; a state trial court's finding that manifest necessity existed for retrial is not subject to attack simply because the words "manifest necessity" do not appear in the record. Venson v. State of Ga., 74 F.3d 1140, 1146 (11th Cir. 1996) (citing Arizona v. Washington, 434 U.S. at 516-17).

         Viewed objectively, on January 31, 1996, Petitioner and his trial counsel attempted to paint the state trial court into a corner. Petitioner neither explicitly requested a further continuance nor a mistrial. Yet Petitioner demanded that his retrial not continue in the absence of Petitioner's lead trial counsel while simultaneously asserting that Petitioner's lead trial counsel was medically unable to proceed with the trial at that time and offering no evidence or even speculation as to when said counsel might be able to proceed with Petitioner's retrial. The trial court had already issued almost a week of daily continuances. Petitioner made no timely objection to the trial court's declaration of a mistrial. The state trial court was responsible for supervising a jury that had already heard extensive testimony in a capital murder trial and then been kept waiting for almost a week.[152] Under such circumstances, the state appellate court could have reasonably concluded that (1) manifest necessity was unnecessary to warrant a mistrial or, alternatively, (2) manifest necessity for a mistrial existed.

         E. Conclusion

         The state appellate courts' rejection on the merits of Petitioner's Double Jeopardy claim in the course of Petitioner's state mandamus proceedings was neither (1) contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial and mandamus proceedings. Petitioner's first claim does not warrant federal habeas corpus relief.

         IX. INEFFECTIVE ASSISTANCE BY TRIAL COUNSEL

         A. Overview of the Claims

         In his fourth claim for federal habeas corpus relief, Petitioner argues his trial counsel failed to render effective assistance as required by the Sixth Amendment by (1) failing to question and challenge for cause three identified members of the jury venire, (2) failing to challenge the admission of Dr. O'Brien's forensic odontology testimony, (3) deciding to obtain the deposition of Dr. Guy Renfro, (4) failing to investigate, develop, and present mitigating evidence showing Petitioner has neurological impairments, (5) failing to investigate, develop, and present in an efficacious manner mitigating evidence showing Petitioner has mental health problems, and (6) failing to introduce mitigating evidence showing Petitioner's adaptability to prison life.

         B. State Court Disposition

         Petitioner presented highly conclusory versions of these same ineffective assistance claims, bereft of any fact-specific support, in his Rule 32 proceeding.[153]

         The state trial court rejected all of Petitioner's ineffective assistance claims on the merits, concluding Petitioner had alleged no specific facts and presented no evidence to support any of these conclusory claims.[154] The Alabama Court of Criminal Appeals affirmed, holding Petitioner's conclusory complaints about the performance of his trial counsel were insufficiently specific to warrant an evidentiary hearing and, alternatively, concluding Petitioner's complaints about the performance of his trial counsel were bereft of any evidentiary support and lacked merit.[155]

         C. The Clearly Established Constitutional Standard

         The Sixth Amendment entitles criminal defendants to "the effective assistance of counsel," i.e., legal representation that does not (1) fall below an objective standard of reasonableness in light of prevailing professional norms and the circumstances of the defendant's case (Wong v. Belmontes, 558 U.S. 15, 16-17 (2009); Bobby v. Van Hook, 558 U.S. 4, 7 (2009)); and (2) give rise to a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different (Porter v. McCollum, 558 U.S. 30, 38-40 (2009); Wong v. Belmontes, 558 U.S. at 19-20).

         The constitutional standard for determining whether a criminal defendant has been denied the effective assistance of trial counsel, as guaranteed by the Sixth Amendment, was announced by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984):

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

         To satisfy the first prong of Strickland, i.e., establish that his counsel's performance was constitutionally deficient, a convicted defendant must show that counsel's representation "fell below an objective standard of reasonableness." Wiggins v. Smith, 539 U.S. 510, 521 (2003); Williams v. Taylor, 529 U.S. 362, 390-91 (2000). In so doing, a convicted defendant must carry the burden of proof and overcome a strong presumption that the conduct of his trial counsel falls within a wide range of reasonable professional assistance. Strickland v. Washington, 466 U.S. at 687-91. Courts are extremely deferential in scrutinizing the performance of counsel and make every effort to eliminate the distorting effects of hindsight. See Wiggins v. Smith, 539 U.S. at 523 (holding the proper analysis under the first prong of Strickland is an objective review of the reasonableness of counsel's performance under prevailing professional norms, which includes a context-dependent consideration of the challenged conduct as seen from the perspective of said counsel at the time). "No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Bobby v. Van Hook, 558 U.S. at 7; Strickland v. Washington, 466 U.S. at 688-89. It is strongly presumed that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland v. Washington, 466 U.S. at 690.

         To satisfy the "prejudice" prong, a convicted defendant must establish a reasonable probability that, but for the objectively unreasonable misconduct of his counsel, the result of the proceeding would have been different. Wiggins v. Smith, 539 U.S. at 534; Strickland v. Washington, 466 U.S. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Strickland v. Washington, 466 U.S. at 694.

         In those instances in which the state courts failed to adjudicate either prong of the Strickland test (such as those complaints the state courts summarily dismissed under the Texas writ-abuse statute or which petitioner failed to fairly present to the state courts), this Court's review of the un-adjudicated prong is de novo. See Porter v. McCollum, 558 U.S. at 39 (holding de novo review of the allegedly deficient performance of petitioner's trial counsel was necessary because the state courts had failed to address this prong of Strickland analysis); Rompilla v. Beard, 545 U.S. 374, 390 (2005) (holding de novo review of the prejudice prong of Strickland required where the state courts rested their rejection of an ineffective assistance claim on the deficient performance prong and never addressed the issue of prejudice); Wiggins v. Smith, 539 U.S. at 534 (holding the same).

         A habeas petitioner has the burden to prove both prongs of the Strickland ineffective assistance standard by a preponderance of the evidence. Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir.), cert, denied, 562 U.S. 1082 (2010); Mills v. Singletary, 63 F.3d 999, 1020 (11th Cir. 1995), cert, denied, 517 U.S. 1214 (1996); Wiley v. Wainwright, 709 F.2d 1412, 1413 (11th Cir. 1983). See also Chandler v. United States, 218 F.3d 1305, 1314 n.15 (11th Cir. 2000) ("Petitioner continually bears the burden of persuasion on the constitutional issue of competence and further, (adding the prejudice element) on the issue of ineffective assistance of counsel"), cert, denied, 531 U.S. 1204 (2001). Under the well-settled Strickland standard, the Supreme Court recognizes a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Bell v. Cone, 535 U.S. 685, 698 (2002); Strickland v. Washington, 466 U.S. at 690.

         Under the AEDPA's deferential standard of review, claims of ineffective assistance adjudicated on the merits by a state court are entitled to a doubly deferential form of federal habeas review. The AEDPA, by setting forth necessary predicates before state-court judgments may be set aside, "erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." Burt v. Titlow, 134 S.Ct. 10, 16 (2013). Under § 2254(d)(1), '"a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" White v. Wheeler, 136 S.Ct. 456, 460 (2015) (quoting White v. Woodall, 134 S.Ct. 1697, 1702 (2014)); Harrington v. Richter, 562 U.S. 86, 103 (2011).

The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard. Were that the inquiry, the analysis would be no different than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction in a United States district court. Under AEDPA, though, it is a necessary premise that the two questions are different. For purposes of § 2254(d)(1), "an unreasonable application of federal law is different from an incorrect application of federal law." A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.
A state court's determination that a claim lacks merit precludes federal habeas relief so long as "fairminded jurists could disagree" on the correctness of the state court's decision. And as this Court has explained, "[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations. "[I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court."

Harrington v. Richter, 562 U.S. at 101 (citations omitted).

         Thus, in evaluating Petitioner's complaints about the performance of his trial counsel which the state courts rejected on the merits in the course of Petitioner's Rule 32 proceeding, the issue before this Court is whether the Alabama Court of Criminal Appeals could reasonably have concluded Petitioner's complaints about his trial counsel's performance failed to satisfy either prong of the Strickland analysis. In making this determination, this court must consider the underlying Strickland standard.

         D. Failure to Adequately Voir Dire the Venire & Make Challenges for Cause

         1. State Court Disposition

         In his initial complaint of ineffective assistance by his trial counsel, Petitioner faults his trial counsels' failures to (1) "conduct voir dire in a manner that would have revealed biases or predispositions harbored by the jurors" and (2) "articulate meritorious challenges for cause" (Doc. # 5, at pp. 22-26).[156] In his fourth amended Rule 32 petition, Petitioner (1) inaccurately alleged that his trial counsel failed to ask any questions whatsoever to the members of the jury venire, (2) failed to identify any members of the jury venire whom his trial counsel should have questioned, (3) failed to identify any questions his trial counsel should have asked members of the jury venire, and (4) failed to identify any members of the jury venire whom he believed were subject to a valid challenge for cause (and why). Petitioner offered no evidence supporting this claim during the June 2003 evidentiary hearing held in his Rule 32 proceeding.[157]

         2. AEDPA Review of the Claim Asserted in State Habeas Court

         Petitioner alleged no specific facts and presented no evidence to the circuit court during his Rule 32 proceeding evidentiary hearing supporting this particular ineffective assistance claim. Under such circumstances, the circuit court's and Alabama Court of Criminal Appeals' conclusions that these complaints failed to satisfy either prong of the Strickland standard was neither (1) contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial and mandamus proceedings. See Price v. Allen, 679 F.3d 1315 1325 (11th Cir. 2012) (holding conclusory assertion that a mental health expert could have testified to a connection between the abuse the defendant suffered as a child and his subsequent actions failed to satisfy prejudice prong of the Strickland standard), cert, denied, 568 U.S. 1212 (2013); Wilson v. United States, 962 F.2d 996, 998 (11th Cir. 1992) (holding complaint about trial counsel's failure to object to amount of drugs identified in PSIR conclusory and without merit where defendant failed to allege any facts showing a factual basis existed for a challenge to the drug quantity listed in the PSIR).

         3. De Novo Review of New Complaints

         In his federal habeas corpus petition, Petitioner asserts a slightly more detailed but still conclusory ineffective assistance argument, i.e., that his trial counsel failed to (1) "follow up" with venire member 82 when she expressed uncertainty during her voir dire examination about whether she would be affected by pretrial publicity; (2) "ask further questions" of venire member 115 after she gave voir dire answers indicating her friends or relatives had been victims of crime; and (3) ask "further questions" of venire member 133 after he gave an answer during voir dire suggesting he harbored a bias against the insanity defense. Petitioner also argues his trial counsel should have challenged all three of these venire members for cause. Having independently reviewed the entire record from Petitioner's June 1996 capital murder trial, this court concludes after de novo review that these additional assertions of ineffective assistance do not satisfy either prong of the Strickland standard.

         a. No Deficient Performance

         Petitioner does not allege any facts or proffer any evidence showing exactly what information was available to Petitioner's trial counsel during voir dire about the backgrounds of any of the three venire members Petitioner has now identified. More specifically, Petitioner does not allege any facts or proffer any evidence showing what information was contained in the juror questionnaires each of these venire members filled out prior to individual voir dire.[158] Nor does Petitioner identify with any reasonable degree of specificity exactly what additional questions his trial counsel allegedly should have asked any of these venire members.[159]

         This court's independent review of the voir dire examination of the three venire members in question reveals there were objectively reasonable reasons readily apparent on the face of the record supporting the decisions by Petitioner's trial counsel not to urge a challenge for cause against any of the venire members in question. Venire member 82 testified during her voir dire examination that (1) she was inclined to vote in favor of a sentence of life without parole, (2) she did not have an opinion regarding the insanity defense in criminal trials, and (3) she considered herself pro-life.[160] Venire member 115 testified in response to questions by Petitioner's trial counsel that (1) she was not familiar with the law as it related to the insanity defense, (2) a close friend of hers told her that her father had sexually abused her as a child, and (3) her own daughter had been in an emotionally abusive relationship in her early twenties and went through therapy.[161] In response to questions by the prosecution, venire member 133 admitted that he had been in "a little trouble: with the law as a teenager, specifically charges of burglary and grand larceny, in which he had been adjudicated under the Youthful Offender Act.[162]

         The first prong of the Strickland standard calls for an objective evaluation of the performance of counsel. See Harrington v. Richter, 562 U.S. at 109 (Strickland "calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind"); Wiggins v. Smith, 539 U.S. at 523 (holding the proper analysis under the first prong of Strickland is an objective review of the reasonableness of counsel's performance under prevailing professional norms, which includes a context-dependent consideration of the challenged conduct as seen from the perspective of said counsel at the time). During individual voir dire examination, each of the venire members identified by Petitioner was examined concerning the very topics Petitioner has identified. Petitioner offers this court no clue as to what additional questions he believes should have been asked these venire members. Nor does Petitioner offer any rational explanation as to why he believes his trial counsel should have engaged in additional questioning of these venire members. Nor does Petitioner offer any rational explanation for why he believes such additional questioning might have disclosed the existence of a disqualifying bias on the part of any of these three venire members. Mere speculation that additional questioning (with unidentified questions) might have produced evidence of an unidentified disqualifying bias does not establish the conduct of Petitioner's trial counsel fell below an objective level of reasonableness.

         Moreover, there were objectively reasonable strategic reasons why Petitioner's trial counsel might have chosen not to question further or urge challenges for cause against any of the three identified venire members. From her voir dire answers, venire member 82 appeared disposed toward returning a verdict favorable to Petitioner at the punishment phase of trial. Venire member 115 had both a friend who had survived sexual abuse and a close relative who had endured emotional abuse; Petitioner's trial counsel could reasonably have concluded she likely would be empathetic or at least sympathetic toward Petitioner once evidence of his difficult childhood, including the emotional impact of his many re-locations, was admitted through the testimony of Dr. Renfro and others. Venire member 133, like Petitioner, had been adjudicated as a juvenile on a charge of burglary; Petitioner's trial counsel could reasonably have concluded this venire member would also likely be inclined toward feelings of sympathy or empathy for Petitioner once evidence of Petitioner's juvenile adjudication for burglary was revealed at trial. In sum, Petitioner's trial counsel may have had objectively reasonable strategic reasons not to choose to further question or urge a challenge for cause against any of these venire members. Petitioner has failed to allege any specific facts, or proffer any evidence in the form of affidavits or juror questionnaires, suggesting the failure of his trial counsel to further question or urge challenges for cause against these three venire members was objectively unreasonable.

         b. No Prejudice

         In his pleadings in this court this assertion of ineffective assistance amounts to little more than a conclusory allegation that, if his trial counsel had asked unidentified additional questions of these three venire members, unidentified evidence of a disqualifying bias might have been revealed. Petitioner alleges no specific facts, and proffers no evidence, showing a reasonable probability that, but for the failure of his trial counsel to further question any member of his jury venire during voir dire examination or urge challenges for cause against any of the identified members of Petitioner's jury, the outcome of either phase of Petitioner's June 1996 capital murder trial would have been any different.

         As Petitioner's own co-counsel admitted during the evidentiary hearing held in Petitioner's Rule 32 proceeding, the evidence of Petitioner's guilt was overwhelming. The only mental health expert who examined Petitioner following Petitioner's arrest who held the view that Petitioner might have experienced a temporary psychotic episode at the time of his offense was Dr. Burkhart. Dr. Renfro, Dr. Dixon, Dr. Bryant, Dr. Mohabbat, and Dr. Nagi all held contrary views. Moreover, Petitioner admitted in his final written statement to law enforcement officers that he intentionally ripped every phone in the Gordon home off the wall to prevent his victims from calling for help. The mental health experts who testified at Petitioner's June 1996 trial acknowledged this admission indicated a possible awareness on Petitioner's part of the wrongfulness of his behavior and a desire not to be caught.[163] Even Dr. Burkhart admitted it was possible Petitioner did not suffer a "brief psychotic episode" or "brief reactive psychosis" at the time of his capital offenses.[164] There is no reasonable probability that, but for the failure of Petitioner's trial counsel to further question any of the identified venire members or challenge any of them for cause, the outcome of the guilt-innocence phase of Petitioner's June 1996 capital trial would have been any different.

         Dr. Lauridson's graphic testimony about the heinous, atrocious, and cruel nature of Petitioner's capital murders was as compelling in June 1996 as it had been in August 1989. The stark brutality of Petitioner's capital offenses, combined with the jury's guilt-innocence phase verdict, meant both the jury and sentencing judge were required at the punishment phase of trial to weigh the fact Petitioner committed two heinous, atrocious, and cruel murders during the course of a robbery, a burglary, and a rape against Petitioner's mitigating evidence of his unstable, socially disconnected childhood and Petitioner's plethora of diagnosed personality disorders. In 1989 and 1996, two different juries heard basically the same evidence and unanimously convicted Petitioner beyond a reasonable doubt of all six counts of capital murder alleged in his indictment. Those same juries also recommended by identical eleven-to-one margins that the trial judge impose the death penalty. Petitioner alleges no specific facts, and proffers no evidence, showing any of his jurors in June 1996 possessed any disqualifying bias. This court independently concludes after de novo review there is no reasonable probability that, but for the failure of Petitioner's trial counsel to question further, or urge challenges for cause against, any of the identified members of Petitioner's jury venire, the outcome of the punishment phase of Petitioner's June 1996 capital murder trial would have been different.

         4. Conclusions

         The state habeas court acted in an objectively reasonable manner when it rejected Petitioner's conclusory assertions of ineffective assistance during jury selection. This court independently concludes that Petitioner's new, but still conclusory, complaints about the performance of his trial counsel during jury selection contained in his fourth claim for federal habeas relief satisfy neither prong of the Strickland standard. This aspect of Petitioner's multi-faceted ineffective assistance claim does not warrant federal habeas corpus relief under either an AEDPA or de novo standard of review.

         E. Failure to Challenge Prosecution's Forensic Odontology Evidence

         1. State Court Disposition

         In his second complaint of ineffective assistance by his trial counsel Petitioner argues his trial counsel should have challenged the prosecution's forensic odontology evidence, i.e., Dr. O'Brien's bite mark testimony (Doc. # 5, at pp. 26-31; Doc. # 64, at pp. 97-105). In his fourth amended Rule 32 petition, Petitioner argued without reference to the record or any legal authority that his trial counsel should have (1) objected to the admission of Dr. O'Brien's testimony and (2) presented unidentified evidence showing an alternative source for the bite marks on Petitioner's arms.[165] In the course of rejecting these ineffective assistance complaints on the merits, the circuit court expressly held (1) Petitioner presented no evidence during the evidentiary hearing showing the failure of his trial counsel to object to the admission of Dr. O'Brien's bite-mark testimony was objectively unreasonable, (2) any objection to the admission of Dr. O'Brien's bite-mark testimony would have been meritless, and (3) Petitioner presented no testimony at his evidentiary hearing showing evidence of an alternative source for Petitioner's bite marks was available at the time of Petitioner's trial.[166] In affirming the circuit court's rejection of these complaints on the merits, the Alabama Court of Criminal Appeals held (1) Petitioner failed to plead or prove any facts showing he was prejudiced by his trial counsels' failures to object to the admission of Dr. O'Brien's testimony or present testimony showing an alternative source for Petitioner's bite marks, (2) contrary to Petitioner's argument in his fourth amended Rule 32 petition, the predicate for the admission of scientific evidence was not necessary to the admissibility of Dr. O'Brien's testimony under Alabama law and any objection to the admission of Dr. O'Brien's bite-mark testimony on this ground would have been baseless, (3) Dr. O'Brien was fully qualified to render an opinion on bite-mark identification, (4) the evidence of the bite marks on Petitioner's arm "was only a small piece of the State's overwhelming case" and was not a crucial component of the prosecution's proof of capital murder during a burglary nor of the heinous, atrocious, and cruel nature of petitioner's crimes, (5) Petitioner told police in a statement introduced into evidence that he received his bite marks from a relative who experienced a seizure, and (6) Petitioner admitted that he stabbed both Mary and Sylvia Gordon.[167]

         2. AEDPA Review of the Claim Asserted in State Habeas Court

         Petitioner alleged no specific facts and presented no evidence to the circuit court during his Rule 32 proceeding evidentiary hearing supporting this particular ineffective assistance claim. Under such circumstances, the circuit court's and Alabama Court of Criminal Appeals' conclusions that these complaints failed to satisfy either prong of the Strickland standard was neither (1) contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial and mandamus proceedings. See Price v. Allen, 679 F.3d at 1325 (holding conclusory assertion that a mental health expert could have testified to a connection between the abuse the defendant suffered as a child and his subsequent actions failed to satisfy prejudice prong of the Strickland standard); Wilson v. United States, 962 F.2d at 998 (holding complaint about trial counsel's failure to object to amount of drugs identified in PSIR conclusory and without merit where defendant failed to allege any facts showing a factual basis existed for a challenge to the drug quantity listed in the PSIR).

         Moreover, as explained in Section VI.D., the state appellate court's holding that Dr. O'Brien's bite-mark testimony was admissible under Alabama evidentiary standards binds this federal habeas court. See Bradshaw v. Richey, 546 U.S. at 76 ("We have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."); hoggins v. Thomas, 654 F.3d at 1228 ("Alabama law is what the Alabama courts hold that it is."); Hendrix v. Sec 'y, Fla. Dep 't of Corr., 527 F.3d at 1153 (holding state court ruling on issue of recusal under Florida state law bound federal habeas court). Petitioner's trial counsel cannot reasonably be faulted for failing to make a meritless objection to the admission of Dr. O'Brien's bite-mark testimony. The failure of Petitioner's trial counsel to raise such a futile or meritless objection did not constitute deficient performance and did not prejudice Petitioner within the meaning of Strickland. See Hittson v. GDCP Warden, 759 F.3d 1210, 1262 (11th Cir. 2014) (failure of collateral counsel to raise a meritless claim does not prejudice petitioner), cert, denied, 135 S.Ct. 2126 (2015); Brown v. United States, 720 F.3d 1316, 1335 (11th Cir. 2013) ("It is also crystal clear that there can be no showing of actual prejudice from an appellate attorney's failure to raise a meritless claim."), cert, denied, 135 S.Ct. 48 (2014); Freeman v. Atty. Gen, 536 F.3d 1225, 1233 (11th Cir. 2008) ("A lawyer cannot be deficient for failing to raise a meritless claim"), cert, denied, 555 U.S. 1110 (2009); Bolender v. Singletary, 16 F.3d 1547, 1573 (11th Cir.) ("it is axiomatic that the failure to raise nonmeritorious issues does not constitute ineffective assistance"), cert, denied, 513 U.S. 1022 (1994); United States v. Winfleld, 960 F.2d 970, 974 (11th Cir. 1992) ("a lawyer's failure to preserve a meritless issue plainly cannot prejudice a client").

         Additionally, also as explained in Section VI.D. above, neither the failure of Petitioner's trial counsel to object to the admission of Dr. O'Brien's bite-mark testimony nor the failure of Petitioner's trial counsel to present a divergent expert opinion prejudiced Petitioner within the meaning of the Strickland standard. The evidence of Petitioner's guilt was overwhelming. The issue before the jury at the guilt-innocence phase of Petitioner's June 1996 trial was Petitioner's mental state at the time of his offenses. There is no reasonable probability Dr. O'Brien's bite mark testimony impacted the jury's evaluation of whether Petitioner suffered from a mental disease or defect that prevented him from conforming his conduct to the requirements of the law.

         The jury was aware through the admission of Petitioner's final statement to police that Petitioner contended a relative had bitten him during a seizure. Dr. O'Brien's bite-mark testimony, i.e., that Sylvia Gordon bit Petitioner at some point within days of Petitioner's arrest, also did very little, if anything, to increase the overwhelming evidence showing Petitioner committed a pair of heinous, atrocious, and cruel murders in the course of a robbery, burglary, and rape. Dr. Lauridson's unchallenged trial testimony established the heinous, atrocious, and cruel nature of Petitioner's capital offenses. Petitioner's admissions in his final statement to police that (1) he was still inside the Gordon home when Mary Gordon returned home to find Petitioner assaulting her daughter, (2) he stabbed Mary Gordon, (3) he then pursued Mary Gordon into her bedroom as she attempted to flee from him, and (4) he cut the wires of, or pulled off the wall, all the phones in the Gordon house to prevent his victims from calling for help furnished more than enough evidence to support the jury's finding of intentional murder committed during a burglary. The unchallenged forensic evidence established Petitioner stabbed or cut Sylvia Gordon more than twenty times, stabbed or cut Mary Gordon more than ten times, and sexually assaulted Mary Gordon. In the face of this other evidence, Dr. O'Brien's bite-mark testimony was barely ...


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