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Woods v. Stewart

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

July 18, 2018



          L. Scott Coogler United States District Judge.

         This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner Nathaniel Woods (“Woods”), a death row inmate at Holman Correctional Facility in Atmore, Alabama. Woods challenges the validity of his 2005 conviction on four counts of capital murder and sentence of death in the Circuit Court of Jefferson County, Alabama. Upon thorough consideration of the entire record and the briefs submitted by the parties, the Court finds that Woods's petition for habeas relief is due to be denied.


         The Alabama Court of Criminal Appeals summarized the facts of this case in its opinion on direct appeal as follows:

Birmingham police officers Carlos Owen, Harley A. Chisolm III, Charles R. Bennett, and Michael Collins were on duty on June 17, 2004. Officer Collins testified that he was on patrol when he heard a radio transmission from Officer Owen, announcing that he was getting out of his patrol car on 18th Street at “the green apartments.” Officer Collins was familiar with the apartments because they were in an area that had “been a drug problem area for years.” The apartments were located four or five blocks from the police precinct. Officer Collins went to the green apartments to back up Officer Owen, and he parked behind the apartments a few minutes after he heard Officer Owen's radio call. Before Officer Collins arrived, Officer Owen had been checking the license tags and the vehicle identification numbers of the vehicles located behind the apartments, and he was standing near the back door of one of the apartments when Officer Collins arrived. Officer Owen told Officer Collins that a man at the back door had cursed at him and yelled at him and had told him to “get the fuck off his property.” Officers Owen and Collins went to the back door of the apartment; Officer Collins testified that Nathaniel Woods was the man standing inside the doorway of the apartment. Woods then cursed at both officers repeatedly and told them to “[g]et the fuck off our property.” Officer Collins saw a female in a white T-shirt behind Woods. Officer Collins testified that it appeared that a third person was also inside the apartment because someone pulled a window covering back and said “[f]uck the police” several times.
Officer Collins testified that Woods told Officer Owen “[y]ou always hide behind that badge and gun, ” and “[t]ake off that badge and I will fuck you up.” Officer Owen then took off his badge, but Woods stayed behind the door. At that point, a female neighbor walked up to Officer Owen and called him by his nickname, Curly; after they spoke, Officer Owen put his badge back on and he and the female neighbor walked toward his patrol car. Officer Chisolm then arrived in his patrol car, and the other officers told him what had occurred. Officers Collins and Owen drove into the alley behind the apartments and spoke about the incident. Officer Owen said that the man at the door had told him that his name was Nathaniel Woods. Officer Collins checked Woods's name using the in-car computer; specifically, he checked the City of Birmingham's files in the event that Woods had been arrested in Birmingham, and he checked the National Crime Information Center (“NCIC”) files. The NCIC files indicated that a person named Nathaniel Woods, with an address in that area and of an age near the age Officer Collins estimated Woods to be, had an outstanding misdemeanor assault warrant from the City of Fairfield Police Department. However, Officer Collins testified that, at that point, he could not verify that the man in the apartment was the same person who had the outstanding warrant for his arrest.
Officers Collins and Owen contacted Officer Chisolm by radio and asked him to go to the precinct to print out a picture of the person wanted by the Fairfield Police Department so they could determine whether that person was the person who had identified himself to Officer Owen as Nathaniel Woods. They also asked Officer Chisolm to contact the Fairfield Police Department to confirm that the warrant was still outstanding. Another officer later saw Officer Chisolm sitting at the NCIC computer at the Birmingham Police Department; he was printing a picture of a mug shot, and he had a printout of a “hit confirmation, ” indicating that Nathaniel Woods had an outstanding warrant. Fairfield Police Department dispatcher Jackie Buchanan confirmed that a warrant for Woods had been issued on February 18, 2004, and that it remained outstanding. Officer Chisolm received a radio call from a Birmingham dispatcher at 1:17 p.m., informing him that the Fairfield Police Department had confirmed that the warrant was still active. Officer Chisolm then radioed the Birmingham dispatcher that he, Officer Owen, and Officer Collins would be leaving the precinct momentarily to try to arrest Woods. Officer Chisolm radioed Officer Steven Sanders and told Officer Sanders that he had a suspect with an outstanding warrant who had been taunting the police, that is, standing inside a door saying, “You can't get me. You can't get me, ” and then running back into the apartment. Officer Sanders told Officer Chisolm that he would drive to the address on 18th Street to assist Officer Chisolm in serving the warrant, but that he was approximately 10 minutes from the address.
While the police were confirming the validity of the warrant for Woods's arrest, Woods remained at the apartment. Marquita McClure, Woods's girlfriend, testified that in June 2004 she was living in the apartment with Woods, whom she called by the nickname “Nate.” Kerry Spencer, Woods's codefendant in this case, also lived in that apartment, and McClure knew Spencer by his nickname, “Nookie.” Another young woman, Markesha Williams, was staying at the apartment and Spencer's brother, Courtney, also occasionally came to the apartment. McClure testified that Woods and Spencer were close friends, and that the two sold drugs from the apartment. She testified that the pair used a “doorman, ” someone who stood at the back door to look out for the police or to see if someone they did not know was trying to come inside. McClure also testified that guns were kept in the apartment; she saw long guns and revolvers, and she testified that Woods and Spencer carried the guns with them while they were in the apartment. McClure said that she saw Spencer walking around the apartment with a long gun strapped to his back on the day of the shootings, and she testified that the night before the shootings both Spencer and Woods were in the backyard shooting guns.
McClure testified that on the morning of the shootings, Woods had been outside but came inside and was standing at the screen door when Officer Owen drove up. She heard Woods and Officer Owen talking like they were angry, and when she walked into the room, she heard Woods tell Officer Owen to take his badge off. McClure said that Officer Owen took his badge off, and then the next-door neighbor came over and told Officer Owen to put his badge back on, which he did. The officers left soon after. While Woods and Officer Owen were talking, McClure said, Spencer was standing at the window of the back bedroom. After the police left, Woods and Spencer said they did not like the police and they said, “I'll kill the mother fuckers.” She had on previous occasions heard Spencer make similar statements, but she did not pay attention when Woods or Spencer made these statements because she did not take them seriously.
McClure left the apartment to run an errand, and she asked Woods to come with her. However, Woods told her that he was going to stay with Spencer in case the police came back. McClure said that when Woods walked her outside to the car, Woods was carrying his revolver. McClure did not return before the shootings took place.
Officer Collins testified that after the officers received confirmation from the Fairfield Police Department that the warrant against Woods was valid, he and Officers Owen and Chisolm drove to the green apartments to serve the warrant. As they arrived at Woods's apartment, Officer Bennett arrived; Officer Collins said that he did not know how Officer Bennett was notified of their attempt to execute the warrant at the apartment. Officers Chisolm and Bennett went to the front of the apartment, and Officers Collins and Owen went to the back of the apartment. Officer Collins testified that, as he and Officer Owen walked toward the back door, a man who had been working on one of the vehicles parked near the apartment walked away and said, “I don't want no part of this. I don't want nothing to do with this. I don't want no part of this.” Woods was again standing inside the screen door, and he immediately began cursing and telling the officers to “get the fuck out” of there. Officer Owen told Woods that they had a warrant for his arrest on a misdemeanor assault charge from Fairfield and that he needed to step outside. Officer Collins said that Woods refused to come outside and that he responded to Officer Owen's request by saying, “Fuck you. I don't have no warrant. Fuck you.” Woods repeatedly stated that there was no outstanding warrant for his arrest, and he demanded to see the warrant. The officers then called Officer Chisolm on the radio and asked him to come to the back of the apartment with the picture and the NCIC printout. Officer Chisolm walked around to the back of the apartment and showed Woods the mug shot and the NCIC printout, but Woods continued to argue that he had “no papers, ” i.e., that a warrant had not been issued. Officer Chisolm told him that he was under arrest and to step outside. Officer Collins testified that Woods told the officers that “[i]f you come in here, we'll fuck you up.”
Officer Collins testified that, all of a sudden, Woods turned and ran from the kitchen further into the apartment. Officer Chisolm grabbed the screen door, opened it, and followed Woods inside the apartment. Officer Owen then went into the apartment; Officer Collins followed behind him. None of the officers had their weapons drawn when they entered the apartment. Officer Collins testified that when he stepped into the kitchen of the apartment, he saw that Officers Chisolm and Owen were in the doorway between the kitchen and the living room and they appeared to be holding Woods. He could hear Woods say, “Okay. I give up. Just don't spray me with that mace.” Officer Collins then heard someone radio that “[t]hey are coming out the front door.” Officer Collins testified that Officers Chisolm and Owen had the doorway blocked, so he turned and ran toward the back door so that he could join Officer Bennett at the front door. As he turned, Officer Owen said to him, “‘Mike, they are going out the front.'”
Officer Collins testified that, as he got to the back door, he heard “a little shuffling behind me and shooting started.” He heard numerous shots and he felt a slapping sensation on his leg by his holster. Officer Collins testified that he ran toward the back of his patrol car for cover. He twice radioed the dispatcher that shots had been fired. From his position behind his patrol car, Officer Collins radioed a “double aught” call, a seldom-used radio code meaning that an officer needs all possible assistance because his life is in danger. Officer Collins saw Kerry Spencer standing at the doorway of the apartment shooting in his direction; he could hear the bullets hit the vehicle, and he could hear glass shattering. Several other officers then arrived at the scene. Later that afternoon, Officer Collins discovered that his holster had a hole in the side, as did his pants, and that he had sustained an injury to the back of his upper right thigh. He found a metal fragment in the lining of his pants pocket near the hole in his pants.
[. . .]
Several officers who responded to the double-aught call testified at trial. Officer Hugh Butler testified that he was less than a mile from the green apartments when he heard the call. When he arrived, he saw that another officer was already at the scene and was standing to the side of the front door, armed with a shotgun. When Officer Butler walked toward the front door, he saw Officer Bennett on the ground, face up, “obviously dead with a hole in his face and smoke coming out if it.” As he ran up to the doorway, he looked behind him and noticed that Officer Terrance Hardin and another officer had arrived. One of the officers called out that there was a weapon in the grass; that weapon was an SKS assault rifle with a magazine attached. Officer Hardin picked up the assault rifle and secured it in Officer Butler's patrol car. Officer Butler called into the apartment for Officer Owen and Officer Chisolm, but he received no answer. He called for anyone else in the apartment to surrender, but received no response to that directive. He and several other officers then entered the apartment. Officer Butler testified that he saw Officers Owen and Chisolm and that they were dead. When Officer Fred Alexander saw Officer Bennett outside the apartment, he radioed dispatch to report that an officer was down. When Officer Alexander saw that Officers Owen and Chisolm were dead, he radioed dispatch to advise that two other officers were down. The officers found a handgun in the bathroom and two long guns, one with the stock sawed off, in a bedroom. After the officers cleared the apartment and determined that no one else was inside, they then went outside and found Officer Collins. Sgt. Ruben Parker, who was retired at the time of trial, testified that he and Officer J.D. Gray responded to the double-aught call, and they kept a perimeter around the scene when they arrived. Sgt. Parker said that another officer was near Officer Bennett's body and noticed a Glock brand gun that was 6 to 12 inches from Officer Bennett's right hand. Sgt. Parker kept the gun until he turned it over to an evidence technician.
Many officers canvassed the neighborhood after the shootings. Sgt. Daniel Carr, who was retired at the time of trial, testified that he came upon a house where three black males were sitting on the porch. He testified that one of the men was Woods, and he said that Woods appeared to be very relaxed as he sat on the porch and spoke with the officer. After Sgt. Carr confirmed by looking at a photograph that the man looked like one of the suspects, he asked Woods for his name and Woods gave Sgt. Carr his full name. Woods was taken into custody. When Woods was patted down, the officers found no identification on him, but they found two .22 caliber bullets in a pants pocket. At 2:56 p.m., an officer radioed that Woods was in custody.
Sgt. James Blanton testified that on the day of the shootings, he was working in the vice-narcotics division of the Birmingham Police Department, but when he heard the double-aught call, he and his partner closed their operation and responded to the location of the shooting. After completing some searches of houses in the area, he was informed that a suspect was in a residence at a certain address on 18th Street. Sgt. Blanton arrived at that residence and he saw his partner attempting to coax Kerry Spencer out of the attic. Sgt. Blanton said that he and a detective saw Spencer's hands moving toward them, so they reached into the attic and pulled Spencer out.
Fernando Belser, whose nickname is “Blue, ” was inside the apartment when the officers were shot and killed. Belser testified that he had been staying at the apartment on 18th Street with Woods and Spencer for three or four months. He said that Woods's girlfriend, Marquita McClure, and Spencer's girlfriend, Markesha Williams, were also staying at the apartment in June 2004. Belser testified that Woods and Spencer made money by selling drugs from the apartment and that he was the “doorman” at the apartment. He stated that a “doorman” determines who gets to come inside to purchase drugs and handles most of the transactions of money and drugs between the purchaser and drug dealer. According to Belser, drug purchasers would come in the back door of the apartment, and were generally not permitted past the kitchen into the living room unless Woods or Spencer gave them permission. Belser testified that “[i]f somebody tried to go past the-through the kitchen into the living room without permission, or if they tried to go and they were being told to stop in the kitchen, they would probably, you know, get hurt pretty bad or something could happen to them. . . .” Belser testified that Woods and Spencer were the primary purveyors of drugs in the apartment and that they sold mostly crack cocaine. On an average day, Belser said, Woods and Spencer sold drugs to 100 to 150 customers and a lot of money flowed through the apartment.
Belser testified that handguns and shotguns were kept in the apartment and that Woods and Spencer carried guns on them. Woods typically carried a small handgun, but Spencer carried all kinds of guns, including an assault rifle. Belser testified that he first saw the SKS assault rifle used in the shooting the night before when Spencer test-fired it outside the apartment. Belser testified that, before the day of the shootings, he had heard Spencer say that he did not like the police, that he was tired of them harassing him, and that if they did not stop harassing him, he would “light them up, ” meaning that he would shoot them. Belser also said that he had heard Woods make statements similar to those Spencer had made.
Belser testified about the police officers' first stop at the apartment on June 17, 2004; that testimony was substantially similar to that given by other witnesses. Belser left the apartment after the officers did, and he was gone for an hour or two. After he returned, the police came back a second time. According to Belser, Woods was standing inside the screen door at the back of the house when Officers Owen and Chisolm arrived in the back. He heard Woods and Officer Chisolm discussing a warrant, then Woods began to “retreat, backpedal” into the living room. Belser said that Officer Chisolm then snatched the screen door open and came inside the kitchen. Officer Chisolm walked just past the threshold between the kitchen and the living room, shaking a can of Mace, and Woods told Officer Chisolm not to spray him with the Mace. Belser testified that he did not see Officer Chisolm spray the Mace; that he did not cough or smell anything; and that Woods was not coughing. At that point, Belser said, Spencer came out of the bedroom carrying the SKS assault rifle that was later recovered in the yard of the residence. Belser said that Spencer opened fire on Officer Chisolm and Officer Chisolm tried to return to the kitchen. Belser did not look toward the kitchen anymore after Spencer began shooting but knew that Spencer fired several shots into the kitchen and out of the back of the apartment. Woods tried to go out of the front door, Belser said, but when Woods opened it, Woods told Spencer that they had “another one right there.” Because the front door opened inward, Belser's view was blocked, and he could not see anyone outside. Spencer turned and fired shots out the front door. Belser testified that Woods then ran out the front door and that Spencer followed him within seconds; the pair ran across the street. Belser walked to the front door and saw Officer Bennett on the ground; the shooting had stopped, he said, and he stepped over the officer's body and walked down the street.
On cross-examination, Belser acknowledged that he had previously pleaded guilty to felony charges of possession of a forged instrument. He continued to maintain that Spencer and Woods had expressed that they were tired of the police messing with them and that he had heard Spencer say that he would “light them up” and that Woods agreed with Spencer. However, when Belser was asked whether he could determine whether Spencer and Woods were serious when they made such remarks, Belser replied that it was hard to say with Spencer. He added that it was “just hard to say if he meant it or not because he kept a certain demeanor. He be-seems like he was dead serious, but he would be joking. And then you would think he was joking, but he would be dead serious . . . .” Belser also testified that if he had believed that Spencer and Woods intended to shoot police officers, he would not have stayed at the apartment. Finally, Belser testified that, when Woods opened the front door and announced there was “another one, ” he did not tell Spencer to shoot him; instead, Belser said, when Woods opened the door and saw the other officer, “it scared him.”
John Prather testified that he lived in a four-room house commonly known as a “shotgun-style house” located on 18th Street in Ensley at the time of the shooting. He said that he was familiar with the green apartments and could see them from his house. On the day of the shooting, he was watching television in the middle room of the house, the bedroom; two acquaintances were also in the house, a young woman named Marshay and Michael Scott. Prather testified that he heard many sirens that afternoon and, suddenly, two men kicked open his back door. He identified Woods as one of the men and said that Spencer was the second man. According to Prather, Woods and Spencer came into his bedroom and sat down; Spencer sat to his right and Woods sat to his left, near a heater. Prather said that he was concerned for his safety, and he asked Woods and Spencer what was going on. They told him that he would be taken care of when it was all over, and he knew they were talking about paying him, though no specific dollar figure was mentioned. Prather said that he overheard Woods tell Spencer, “You came through for me.”
Prather testified that he became restless after he saw reports on the television involving the three officers being shot at the green apartments, and he knew that Woods and Spencer were involved. Although he was very apprehensive about getting up, Prather said, he eventually got up and walked out of the bedroom and into the living room. Prather then walked out of his house and sat on the porch of the house next door. According to Prather, Woods followed him and sat on the steps at the house next door. Police were all around the area. After approximately 10 minutes, Prather walked back to his house and sat on the banister of his porch; Woods followed him and sat on the steps of his porch. Prather testified that a police officer walked over and spoke with Woods, and Woods gave the officer his name and surrendered. Finally, Prather testified that when Woods first burst into his house, he did not appear to have a hard time breathing, and his eyes had no tears and his nose was not running.
Michael Scott testified that he was in Prather's house, which was approximately one block from the green apartments, when he heard shots fired. He admitted that he had previously been inside the green apartments to purchase cocaine; he said he had purchased drugs approximately 10 times from Woods and Spencer. After he heard the shots fired that day, he yelled to Prather, and he then heard a commotion in the back of the house. Scott said that he turned and saw Woods and Spencer come through the back door of Prather's house. Woods walked into the living room where Scott was standing. Woods was not coughing and he had no trouble breathing, Scott said; Scott also said that Woods had no tears and his nose was not running. Woods said, “They fucked with the wrong niggers. We shot their asses, ” and then said something about having been sprayed with Mace. According to Scott, Woods then went into the bedroom with Prather and Spencer. When Prather came into the living room and suggested to Scott that they go outside, he turned to see where Spencer had gone and heard a commotion in the attic, so he assumed that Spencer had climbed into the attic. Scott said that a police officer eventually came to the porch and recognized Woods from a photograph he was holding, and that Woods was taken into custody.
Officer Cedric Clifton testified that he was working in the evidence-technician unit of the Birmingham Police Department on June 17, 2004, and that he photographed the scene and collected evidence at Prather's house. Officer Clifton testified that he collected a wallet from beneath the couch in the living room that contained Woods's identification card and Social Security card, among other things. He also found a 9mm handgun in the attic of the residence next to the entryway to the attic. The gun was loaded, and it had 1 round in the chamber and 10 rounds in the clip. Officer Clifton testified that in the bedroom, behind the heater, he recovered a second handgun, a Beretta brand 9mm gun. Officer Clifton testified that “[t]he weapon had been hit right behind where you pull the trigger, ” and that he was not able to remove the magazine from the weapon as a result of the damage. Subsequent testimony established that the Beretta handgun found behind the heater in Prather's house was Officer Owen's service weapon. Officer Clifton was unable to locate any fingerprints on the weapon.
Evidence technicians and a crime-scene investigator photographed and diagramed the scene where the shooting occurred and collected evidence from the apartment, in the front and back yards, and in a nearby vacant lot. The officers testified that they collected numerous weapons, shell casings, spent bullets, and live ammunition from the scene. Finally, Officer Chester White, an evidence technician, testified that he received a Glock 19 9mm semiautomatic weapon from Sgt. Ruben Parker. That gun had been located near Officer Bennett's body and was identified as his service weapon. Officer White testified that the gun was fully loaded. Officer White also received the SKS assault rifle that had been found in the front yard of the residence; two live rounds remained in the assault rifle. Three loaded weapons-a shotgun, a rifle, and a revolver-were also recovered from other rooms in the apartment. Officer White photographed the bodies of the deceased officers and removed their duty belts and items from their pockets. Officer Owen had no weapon on his duty belt, and the gun holster on the belt had been damaged. When he collected Officer Chisolm's duty belt, Officer White noted that the holster that usually contained a Mace canister was empty and that the canister of Mace was located near the back door of the apartment. Officer White testified that, after he received information from the coroner about the gunshot wound to Officer Bennett's face, he returned to the scene and dug a bullet from the ground beneath where Officer Bennett's head had been lying.
Charles Underwood, an investigator in the forensics unit of the Birmingham Police Department, testified that he photographed the backyard of the apartment and collected shell casings there. He observed bullet holes in Officer Collins's patrol car-in the radiator, the windshield, and the strobe light bar of the car-and bullet holes in another car parked behind the apartment. A vehicle in front of the apartment had bullet holes in the front fender and in the hood. Inv. Underwood collected bullet fragments from inside Officer Collins's patrol car and from the car parked in front of the apartment. Inv. Underwood also collected two spent shell casings from the front yard near Officer Bennett's body. Finally, Inv. Underwood testified that he conducted a trajectory examination of the cars so that he could determine the path the bullets took when they were fired and where the barrel of the gun was in relation to where the shots were fired.
Dr. Gary Simmons, a forensic pathologist with the Jefferson County Coroner's Office, testified that he conducted the autopsies on the three officers. He provided details of the examinations of each officer's body, and concluded that each had died of multiple gunshot wounds. Dr. Simmons testified that Officer Chisolm and Officer Owen sustained several gunshot wounds to the back that then exited the front of the body; that the stippling on the skin indicated that when the bullet was fired into Officer Bennett's face, the gun was 12 inches or less from him; and that one of the bullets fired at Officer Chisolm was fired from less than two feet away. Dr. Simmons testified that the more serious wounds the officers sustained, as opposed to the graze wounds, were typical of those caused by high-powered rifles because the bullets left large holes in the bodies, particularly as the bullets exited the bodies. Dr. Simmons recovered bullet fragments from each officer's body and secured them for further analysis. Dr. Simmons testified that Officers Chisolm and Bennett were wearing bulletproof vests, but he noted that several bullets went through the vests because those vests are typically made to stop bullets from handguns, not from high-powered rifles.
Mitch Rector, a firearm-and-toolmark examiner with the Birmingham Police Department, testified that he examined the weapons, bullet fragments, and shell casings recovered in this case. He identified numerous shell casings and bullets that had been fired from the SKS assault rifle recovered at the scene. Rector testified that some of the bullet fragments recovered during the autopsies of Officers Bennett and Chisolm had been fired from the SKS assault rifle. The fragments recovered from Officer Owen's body were similar to the type of bullet fired from the SKS assault rifle, but he could not state conclusively that the fragments were from a bullet fired by the SKS assault rifle he tested. Rector testified that he examined the officers' weapons and that Officer Bennett's weapon and Officer Chisolm's weapon functioned normally, but that Officer Owen's firearm had a large defect in the metal near the trigger guard that severely damaged the gun and rendered it inoperable. In addition, the holster on Officer Owen's duty belt was damaged, and Rector testified that the damage to the gun and holster were typical of what he would expect if they had been struck by a high-velocity bullet such as one fired by an SKS-type rifle. Rector also found that a portion of a bullet had been left inside Officer Owen's holster, and he stated that the appearance of the bullet fragment was consistent with what is commonly found in SKS ammunition. None of the shell casings recovered at the scene had been fired from any of the officers' weapons. Finally, Rector testified that he conducted a distance study regarding the gunshot wound to Officer Bennett's face to determine how far the muzzle of the SKS assault rifle was from his face when it was fired. He determined that the end of the barrel of the SKS assault rifle was from two to six inches from the officer's face when it was fired.
Greg Parker testified that on December 4, 2003, before the shootings in this case, he was employed as a police officer by the City of Fairfield. While he was assisting other officers who were attempting to serve a warrant, Woods-who was not the person the officers were looking for-came from behind the residence and walked toward him. Officer Parker said that Woods was wearing a long trench coat, that he had his hands in his pockets, and that he looked suspicious. Officer Parker told Woods to remove his hands from his pockets because his job made him suspicious of people with their hands in their pockets because they might have a firearm; Officer Parker also told him that a sudden movement could get him shot. Officer Parker said that, in response, Woods “said he could have shot me.” Officer Parker asked Woods if he had a gun, and Woods said he did, so Officer Parker and the other officers restrained him. The officers removed from Woods's pants what appeared to be an operational handgun but was actually a pellet gun. Woods was arrested on a charge of menacing.
William Powell, a Jefferson County deputy sheriff assigned to the jail, testified that when Woods was in jail on December 14, 2004, after the shootings in this case, he closed the door of Woods's cell, and Woods called him derogatory names and then told him that he was “hiding behind [his] badge just like the other three mother fuckers.” Woods also told Deputy Powell that if he won his case and was released, he was going to come looking for him. Deputy Powell filed a report on the incident.
Deputy Vince Gillum testified that he was employed by the Jefferson County Sheriff's Office and that he was assigned to the jail. He stated that, on June 22, 2005, he observed contraband on the wall of Woods's cell-a drawing pasted to the wall-so he removed it. The drawing was admitted into evidence, and we have examined it. The drawing depicts two men shooting firearms. One man is shooting an assault rifle and three flaming skulls are depicted in the blasts from that weapon, and the other man is shooting two handguns. The drawing contains a heading at the top, “NATE $ NOOKIE, ” and depicts street signs at an intersection of “18th Street and Ensley.” When Deputy Gillum removed the drawing, Woods said that the drawing was his and that he wanted it back.
Deputy Sheriff Tonya Crocker testified that she was also assigned to the jail and that on July 29, 2005, she searched Woods's cell. She found some broken razors and some drawings that concerned her. After obtaining a search warrant, Deputy Crocker seized several items from the bunk where Woods slept. The items included a handwritten document and two copies each of two separate drawings depicting “Nate” and “Nookie” shooting on 18th Street. One of the drawings depicted flaming skulls coming from the blast of what appears to be an assault rifle and the other drawing depicted a police car with many bullet holes in it.
Detective Phillip Russell of the Birmingham Police Department testified that the trial court had ordered Woods to provide handwriting samples, so he obtained those samples from Woods using the procedure he had been instructed to use by the handwriting analyst who would later examine the samples. Det. Russell was instructed to have Woods repeatedly rewrite the words on the document found in his cell. We have reproduced those words exactly as they appear on the document:
“Seven execution styles murders I have no remorse because I'm the fuckin murderer Haven't you ever heard of a killa I drop pigs like Kerry Spencer So when I walk around strapped One time bust the caps and watch pigs clapse Snapp, adapt to this because I needs no adapter this is just the first chapter.”
Det. Russell testified that the document appeared to be an adaptation of the lyrics of a rap-style song by an artist named Dr. Dre, which he located by an Internet search.
Steven Drexler testified that he had recently retired from the Alabama Department of Forensic Sciences, where he had been with the questioned document and handwriting unit. He testified that he compared Woods's known writing samples that were obtained by Det. Russell with the writing on the document obtained during the search of Woods's cell. Drexler testified that, in his opinion, the document was written by Woods.
Woods presented several witnesses in his defense. Markesha Williams testified that she had known Kerry Spencer for about five days and that she had visited Spencer at the green apartments. She was at the apartment on the day of the shooting. Williams testified that, when the officers first came to the house, she heard Woods and Spencer talk back and forth with the police. She stated that Spencer told an officer that if the officer took his badge off Spencer would come outside, so the officer took his badge off, but Spencer remained inside. She said that the police left after approximately 10 minutes. She testified that, after the police left, Woods said that if the police kept coming back he was going to shoot them but that she did not take him seriously. Later, Williams saw two police cars drive down the back alley. She went into the living room, and Woods was standing at the screen door. When the two officers came to the door, Williams said, Woods asked them why they kept coming back “messing with ‘em.” Williams testified that after Woods and the police argued, the officers “snatched the door off the hinges, ” wrestled Woods to the ground, and beat him. She said that she did not see anyone spray Mace; that she has asthma; and that she would have gotten sick if she had smelled or been around Mace. Williams testified that Courtney Spencer woke up his brother, who was sleeping; that Kerry Spencer went into the bedroom and looked out the window; and that he returned to the living room and grabbed the gun. Spencer said something to the police and then started shooting. Williams said that a third officer opened the front door, and Spencer shot him. She testified that Woods got up off the ground after the shooting started and that he was panicky. Williams testified that Woods did not open the door and he did not tell Spencer that another officer was at the front door. She said that she was the first person to run from the apartment after the shooting; that she did not see Woods or Spencer running from the apartment; and that she did not see who shot Officer Bennett in the face. Williams acknowledged that, when she gave a statement to the police after the shooting, she had said that based on what she had heard Woods and Spencer say after the police left the first time, she knew there would be a confrontation if the police returned, and that when the police officer asked if Woods and Spencer had planned the confrontation, she told him that it was planned. However, at trial, she testified that what she meant by her statement was that she expected a verbal confrontation, and that she did not expect anyone to shoot a police officer.
Brandon Carter, an inmate, testified that he knew Woods from being incarcerated with him. He identified some of the drawings removed from Woods's cell during the search and testified that he had copied them from the original and had given the copies to Woods. Carter testified that Woods did not ask him to draw the pictures for him.
Travis Dumas, also an inmate, testified that he, like Fernando Belser, had worked as a “doorman” at the apartment from which Woods and Spencer sold drugs. He testified that he was at the apartment during the morning of the shooting and that he was awakened by someone kicking the front door. According to Dumas, Woods went to the front door and argued back and forth with the person. Dumas said that he recognized the voice of the person as Officer Owen's voice because Officer Owen had been patrolling his neighborhood for many years. He heard Officer Owen tell Woods that he would be back. Dumas said that while Woods argued with Officer Owen at the front door, Spencer was arguing with officers at the back door; Dumas recognized Officer Chisolm as one of the officers at the back door. After the police left, Dumas heard Spencer say that if the police came back, he was going to “bust ‘em, ” meaning he was going to shoot them. Dumas said that he did not take Spencer's comment seriously because he had heard other people talk about shooting the police before and he had said it himself. Dumas testified that he left the house to steal items from a grocery store nearby, and that after he “stole a whole bunch of everything, ” he tried to return to the apartment but he could not because the police were everywhere.
Woods also called codefendant Kerry Spencer to testify on his behalf; Spencer invoked his Fifth Amendment privilege and refused to testify. However, the trial court permitted the attorneys for the State and for Woods to read into the record Spencer's testimony from his own trial. At his trial, Spencer admitted that he sold drugs from the apartment where the shooting occurred. He testified that he bought the SKS assault rifle the night before the shooting, and that he had test-fired it in the backyard. On the day of the shooting, Spencer said, Officer Owen kicked the front door of the apartment early in the morning, between 6:00 a.m. and 8:00 a.m. He and Woods looked out the window and recognized the officer. Spencer said that Officer Owen returned to the apartment later that morning, parked in the backyard, and said something to Woods, who was standing at the back door, about stolen cars. Woods cursed at Officer Owen repeatedly, Spencer testified, and told him to get off the property. Spencer said that he went to a window in the bedroom and also cursed at Officer Owen; he told the officer to “get his weak ass the fuck on.” He said that Officer Owen told him that he had enough body bags for him too. According to Spencer, Officer Collins then drove into the yard and Officer Owen spoke to him. Officer Owen returned to the back door and tried to get him and Woods to come outside, but they continued to curse at him. Woods told Officer Owen that he hid behind his badge; Spencer said he agreed with Woods and told Officer Owen that if he took his badge off, they would come outside. Officer Owen then took the badge off and told them to come out, but they refused. Spencer said that a female neighbor then walked over and told Officer Owen to stop acting like that, and he put his badge back on and left soon after. Before he left, Spencer said, Officer Owen said he would be back when he got off work.
Spencer testified that he then heard Woods speaking to someone and he saw that Woods was speaking to Officer Chisolm. Spencer said that he told the officer that he needed “to get the fuck away from the apartment. That he a fuck boy. . . . Basically just telling him get the fuck on.” He said that Officer Chisolm let them know that the police would be back and led Spencer to believe that he would be killed when they returned. Spencer said that he was in fear for his life. Spencer also said that neither he nor Woods gave their names to either of the officers.
Spencer testified that he was asleep on the couch when the officers returned; the SKS assault rifle was beside his leg. He said that he heard a snap and got up and went into the bedroom so he could look out the window. Spencer stated that he saw the police cars outside and that he then heard a struggle, but that he did not know the police were in the house. Spencer said that when he came out of the bedroom, Woods was coming out of the kitchen holding his face as if he were in pain; that he heard something beside him; and that, as he turned around, he saw Officer Chisolm raise his gun so he opened fire. Spencer said that he believed that the officer was going to shoot him and that he had no alternative but to fire his weapon. Spencer fired until Officers Chisolm and Owen were down. Spencer said that the front door then opened and that he saw Officer Bennett with a gun, so he shot him.
Spencer said that he did not know if other officers were in the front of the apartment, so he went toward the back door. He saw Officer Owen's gun on the floor beside him, and he took the gun because he did not want to be shot. He opened the back door and saw Officer Collins standing outside the apartment; Officer Collins took a few steps toward him with his gun in his hand. Spencer testified that he walked out of the apartment and that he and the officer looked eye-to-eye, and that the officer then ran behind his patrol car. Spencer said that he waited until Officer Collins was behind the car and then he fired a couple of shots into the windshield. He said that he could have shot and killed Officer Collins, but that he had no reason to because the officer posed no threat to him. Spencer stated that he then went to the front door and cautiously walked outside, holding the gun at his side, pointing down. While he was standing next to Officer Bennett, Spencer said, the officer's hand “jumped and touched me, you know, and automatically, reflex, you know, I quickly shot.” After he shot Officer Bennett at close range, he threw the gun down and ran to a neighbor's house. Spencer testified that he did not intend to kill any of the police officers but that he did what he had to do to avoid being shot and to stay alive. However, on cross-examination, Spencer acknowledged that in a prior statement to the police, he had said that he shot the officers because he was “pissed off.”
In addition to Spencer's testimony from his trial, the testimony of Randall Washington, who was declared an unavailable witness, from Spencer's trial was also read into evidence at Woods's trial. Washington testified at Spencer's trial that he was in the backyard of the apartment working underneath Courtney Spencer's car when the police arrived to arrest Woods. He heard someone say, “They're back.” While the police were walking toward the apartment, Courtney Spencer raised his hand and said, ” ‘I don't have anything to do with this. I'm just over here getting my car worked on,' “ and he walked away. Washington said that he stayed under the car because he had an outstanding warrant for his arrest for unpaid fines, and he did not want to be arrested. Washington heard Officer Owen say to someone at the back door that he had a warrant; Officer Owen said this to the person more than once. Washington next saw another officer walk around from the side of the apartment at a fast pace toward the screen door. Washington said that he then heard a snap and saw the police officer snatch open the screen door and enter the apartment. A second officer followed him, Washington said, but he did not see a third officer. Washington testified that, one to three minutes later, he heard gunshots. He stayed beneath the car until the shooting stopped, then he ran away.
In rebuttal, the State recalled Det. Phillip Russell. Det. Russell testified that, when Spencer gave his statement to the police on the afternoon of the shooting, he admitted that he had killed the three officers, but, contrary to his testimony at his trial, he repeatedly denied taking Officer Owen's gun. Det. Russell also testified that Spencer did not say in his statement, as he did at his trial, that he was the one who shot Officer Bennett in the face. Finally, Det. Russell testified that he had asked Spencer where Woods was while Spencer was shooting, and Spencer said, “‘Nate had-he was running with me.'”

Woods v. State, 13 So.3d 1, 5-18 (Ala.Crim.App.2007) (internal citations and footnote omitted).


         A. Trial

         On October 17, 2004, a Jefferson County grand jury indicted Woods for four counts of capital murder for his involvement in the shootings of the four Birmingham police officers: three counts of capital murder, in violation of Section 13A-5-40(a)(5) of the Code of Alabama (1975), for the deaths of the three officers, and one count of capital murder, in violation of Section 13A-5-40(a)(10), for the murder of two or more persons by one act or pursuant to one scheme or course of conduct. Woods was also charged with one count of attempted murder, in violation of Section 13A-6-4. Attorneys Rita Briles and Cynthia Umstead were appointed as counsel.

         Woods's charges were consolidated for trial on the State's motion. The trial began on October 3, 2005. In its case in chief, the State offered the testimony of 39 witnesses, including Michael Collins, 25 other law enforcement officers, and experts in firearms and handwriting. The defense countered with six witnesses, including two inmates and Kerry Spencer. After less than two and a half hours of deliberation on October 10, 2005, the jury found Woods guilty on all counts.

         During the penalty phase, the defense presented testimony from four of Woods's relatives and friends-Synthia Sherman, his aunt; Shena Carter, his cousin; Pamela Woods, his mother; and Stephanie Claybion, a friend-and Woods himself spoke. The State called the widows of the three officers. The court charged the jury on four aggravating circumstances: (1) the defendant knowingly created a great risk of death to many persons, (2) the offense was committed for the purpose of avoiding or preventing a lawful arrest or affecting an escape from custody, (3) the offense was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement or laws, and (4) the defendant intentionally caused the death of two or more persons by one act or pursuant to one scheme or course of conduct. The last of these aggravating circumstances-the death of two or more persons-was unanimously proven by virtue of the jury's guilt-phase verdict. The jury recommended 10-2 that Woods be sentenced to death on each of the four capital counts.

         At the sentencing hearing on December 2, 2005, the State presented testimony from a resident of the area who had been near the gunfire and from Stacy Sellers, Chisholm's widow, who had received a threatening letter from Woods after the trial stating, “I will forgive, but I won't forget.” The defense offered testimony from Woods's mother and from a family friend. After hearing the testimony, the court accepted the jury's recommendation and sentenced Woods to death one week later.

         Woods filed a motion for new trial on January 3, 2006, which was overruled after a hearing. As Woods's trial counsel did not wish to handle the appeal, the court appointed new counsel in their stead.

         B. Direct Appeal

         With new counsel on direct appeal, Glennon Threatt, Woods raised five issues: (1) the trial court erred when it admitted testimony from several witnesses about Woods's collateral bad acts, (2) the evidence was insufficient to sustain his conviction as an accomplice pursuant to Ala. Code § 13A-2-23 because there was no evidence indicating that Woods possessed or fired a gun during the shooting, (3) the trial court committed error in several evidentiary rulings during the penalty phase, (4) Woods was denied effective assistance of counsel during the penalty phase, and (5) the jury-verdict-override sentencing scheme of Alabama's capital-murder statute is unconstitutional.

         The Alabama Court of Criminal Appeals affirmed Woods's convictions but remanded for an amended sentencing order that would clarify the trial court's findings regarding non-statutory mitigating circumstances. Woods, 13 So.3d at 40. After the trial court issued its amended sentencing order on September 24, 2007, Woods appealed again, and the Alabama Court of Criminal Appeals affirmed his death sentence on return from remand on December 21, 2007. See Id. at 43.

         Woods's direct appeal counsel then moved to withdraw and did not file a petition for writ of certiorari to the Alabama Supreme Court. The certificate of judgment was issued on January 9, 2008. On April 29, 2008, now represented by attorneys from the Equal Justice Initiative, a non-profit organization, Woods filed a motion for out-of-time appeal in the Alabama Supreme Court, alleging that Woods's direct appeal counsel never discussed further proceedings with him and that he had been prejudiced because he was too late to file a motion for reconsideration in the Alabama Court of Criminal Appeals or a petition for certiorari. The Alabama Supreme Court put the matter on hold until the Alabama Court of Criminal Appeals could consider the issue, and on May 9, 2008, Woods filed a motion to withdraw the certificate of judgment to permit filing of an application for rehearing in the lower court. The Alabama Court of Criminal Appeals denied Woods's motion on October 14, 2008. Once again, Woods pursued an out-of-time appeal in the Alabama Supreme Court, but the court denied his motion on August 24, 2009, noting that Woods's Rule 32 petition was then pending in the circuit court. The United States Supreme Court denied certiorari on February 22, 2010. Woods v. Alabama, 559 U.S. 942 (2010).

         C. Rule 32

         Through the Equal Justice Initiative, Woods filed a 124-page, 32-issue petition pursuant to Rule 32 of the Alabama Rules of Criminal Procedure in the Jefferson County circuit court on December 30, 2008, while his motion for an out-of-time emergency appeal was still pending in the Alabama Supreme Court. Woods also filed a motion to stay and hold the Rule 32 petition in abeyance pending his pursuit of an out-of-time appeal, which the circuit court granted on January 14, 2009. On February 10, 2010, attorneys LaJuana Davis and John Carroll entered a notice of appearance, and counsel from the Equal Justice Initiative withdrew on April 1, 2010. The State filed an answer to Woods's Rule 32 petition in July, then an amended answer later that month. The circuit court summarily dismissed the petition on December 1, 2010. Woods filed a motion for reconsideration on December 30, 2010, which the circuit court denied on January 25, 2011. Woods appealed, but the Alabama Court of Criminal Appeals affirmed the dismissal of his Rule 32 petition on April 29, 2016. Woods v. State, 221 So.3d 1125 (2016). The Alabama Supreme Court denied certiorari on September 16, 2016. Woods did not pursue his appeal in the United States Supreme Court.

         D. Federal Habeas Corpus

         Woods filed the instant petition for a writ of habeas corpus on October 27, 2016. The petition is his first federal habeas petition, and it is timely. See 28 U.S.C. § 2241(d)(1). He filed an amended habeas petition on February 2, 2017, which the State answered on February 17, 2017. Woods filed a reply brief on March 17, 2017. Woods's counsel, who had represented him in his Rule 32 proceedings as well, moved to withdraw on February 3, 2017. On April 28, 2017, new counsel was appointed by this Court. Woods filed a second amended petition on May 30, 2017, the State answered again on June 27, 2017, and Woods replied in support thereof on July 27, 2017.


         This action is governed by 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Guzman v. Sec'y, Dep't of Corr., 663 F.3d 1336, 1345 (11th Cir. 2011). Pursuant to § 2254(a), a federal district court is prohibited from entertaining a petition for writ of habeas corpus “in behalf of a person in custody pursuant to the judgment of a State court” unless the petition alleges “he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). In other words, this Court's review of habeas claims is limited to federal constitutional questions. Claims pertaining solely to “an alleged defect in a [state] collateral proceeding” or to a “state's interpretation of its own laws or rules” do not provide a basis for federal habeas corpus relief under § 2254. Alston v. Dep't of Corr., Fla., 610 F.3d 1318, 1325-26 (11th Cir. 2010) (quotation marks and citations omitted).

         A. Exhaustion of State Remedies and Procedural Default

         Under § 2254(b) and (c), a federal court must limit its grant of habeas applications to cases where an applicant has exhausted all state remedies. Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). This means that “‘[s]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process,' including review by the state's last court of last resort, even if review in that court is discretionary.” Pruitt v. Jones, 348 F.3d 1355, 1358-59 (11th Cir. 2003) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 1732-33 (1999)). Alabama's discretionary direct review procedures bring Alabama prisoner habeas petitions within the scope of the rule. Id. The purpose of this requirement is to ensure that state courts are afforded the first opportunity to correct federal questions affecting the validity of state court convictions. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998); see also Smith v. Newsome, 876 F.2d 1461, 1463 (11th Cir. 1989) (“Federal courts are not forums in which to relitigate state trials.”) (citation omitted)). Moreover, “to exhaust state remedies fully the petitioner must make the state court aware that the claims asserted present federal constitutional issues. ‘It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state-law claim was made.'” Snowden, 135 F.3d at 735 (quoting Anderson v. Harless, 459 U.S. 4, 5-6, 103 S.Ct. 276, 277 (1982)).

         “[A]n issue is exhausted if ‘the reasonable reader would understand the claim's particular legal basis and specific factual foundation' to be the same as it was presented in state court.” Pope v. Sec'y for Dep't of Corr., 680 F.3d 1271, 1286 (11th Cir. 2012) (quoting Kelley v. Sec'y for Dep't of Corr., 377 F.3d 1317, 1344-45 (11th Cir. 2004)) (brackets in original omitted). If a petitioner fails to raise his federal claim to the state court at the time and in the manner dictated by the state's procedural rules, the state court can decide the claim is not entitled to a review on the merits, i.e., “the petitioner will have procedurally defaulted on that claim.” Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010). Moreover, a “state court's rejection of a petitioner's constitutional claim on state procedural grounds will generally preclude any subsequent federal habeas review of that claim.” Ward v. Hall, 592 F.3d 1144, 1156 (11th Cir. 2010) (quoting Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001)). “Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 2594 (1991). Yet as the Eleventh Circuit has noted, a claim will only be procedurally defaulted in the following circumstance:

[A] state court's rejection of a federal constitutional claim on procedural grounds may only preclude federal review if the state procedural ruling rests upon “adequate and independent” state grounds. Marek v. Singletary, 62 F.3d 1295, 1301 (11th Cir. 1995) (citation omitted).
We have “established a three-part test to enable us to determine when a state court's procedural ruling constitutes an independent and adequate state rule of decision.” Judd, 250 F.3d at 1313. “First, the last state court rendering a judgment in the case must clearly and expressly state that it is relying on state procedural rules to resolve the federal claim without reaching the merits of that claim.” Id. Second, the state court's decision must rest entirely on state law grounds and not be intertwined with an interpretation of federal law. See Id. Third, the state procedural rule must be adequate, i.e., firmly established and regularly followed and not applied “in an arbitrary or unprecedented fashion.” Id.

Ward, 592 F.3d at 1156-57 (footnote omitted).

         There are also instances where the doctrines of procedural default and exhaustion intertwine. For instance, if a petitioner's federal claim is unexhausted, a district court will traditionally dismiss it without prejudice or stay the cause of action to allow the petitioner to first avail himself of his state remedies. See Rose v. Lundy, 455 U.S. 509, 519-20, 102 S.Ct. 1198, 1204 (1982). But “if it is clear from state law that any future attempts at exhaustion [in state court] would be futile” under the state's own procedural rules, a court can simply find that the claim is “procedurally defaulted, even absent a state court determination to that effect.” Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir. 1999) (citation omitted).

         B. Overcoming Procedural Default

         “[A]n adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 749-50, 111 S.Ct. 2546, 2564-65 (1991) (citations and internal quotation marks omitted).

         The “cause and prejudice” exception is framed in the conjunctive, and a petitioner must prove both cause and prejudice. Id. at 750, 111 S.Ct. at 2565. To show cause, a petitioner must prove that “some objective factor external to the defense impeded counsel's efforts” to raise the claim previously. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645 (1986). Examples of such objective factors include:

. . . interference by officials that makes compliance with the State's procedural rule impracticable, and a showing that the factual or legal basis for a claim was not reasonably available to counsel. In addition, constitutionally ineffective assistance of counsel . . . is cause. Attorney error short of ineffective assistance of counsel, however, does not constitute cause and will not excuse a procedural default.

McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 1470 (1991) (internal quotation marks, brackets, and citations omitted). As for prejudice, a habeas petitioner must show “not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596 (1982) (emphasis in original).

         Finally, a petitioner may also escape a procedural default bar if he “can demonstrate a sufficient probability that [the court's] failure to review his federal claim will result in a fundamental miscarriage of justice.” Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 1591 (2000). To make such a showing, a petitioner must establish that either: (1) “a constitutional violation has probably resulted in the conviction of one who is actually innocent, ” Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 2668 (1986) (quoting Carrier, 477 U.S. at 496, 106 S.Ct. at 2650), or (2) the petitioner shows “by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty.” Schlup v. Delo, 513 U.S. 298, 323, 115 S.Ct. 851, 865 (1995) (emphasis in original) (quoting Sawyer v. Whitley, 505 U.S. 333, 336, 112 S.Ct. 2514, 2517 (1992)).

         C. AEDPA Review of State Court Decisions Under § 2254(d) and (e)

         When a constitutional claim upon which a petitioner seeks relief under § 2254 is not procedurally defaulted but has instead been adjudicated on the merits in state courts, this Court is still restricted in its ability to grant relief on those claims by § 2254(d). The AEDPA “imposes a highly deferential standard for evaluating state-court rulings” and “demands that state-court decisions be given the benefit of the doubt.” Guzman, 663 F.3d at 1345 (internal quotation marks and citation omitted). To grant habeas relief on a claim, this Court must not only find that the constitutional claims are meritorious, but also that the state court's resolution of those claims:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2); see also Boyd v. Allen, 592 F.3d 1274, 1292 (11th Cir. 2010) (quoting § 2254(d)). The burden of showing that an issue falls within § 2254(d)(1) or (d)(2) is upon the petitioner. See Woodford v. Visciotti, 537 U.S. 19, 25, 123 S.Ct. 357, 360 (2002). Section 2254(d)(1)'s “contrary to” and “unreasonable application of” clauses have independent meanings. See Alderman v. Terry, 468 F.3d 775, 791 (11th Cir. 2006) (“[T]he ‘contrary to' and ‘unreasonable application' clauses are interpreted as independent statutory modes of analysis.”) (citation omitted). A state court's decision is contrary to “clearly established precedents [of the Supreme Court of the United States] if it applies a rule that contradicts the governing law set forth in [the Court's] cases, or if it confronts a set of facts that is materially indistinguishable from a decision of th[e] Court but reaches a different result.” Brown v. Payton, 544 U.S. 133, 141, 125 S.Ct. 1432, 1438 (2005) (citation omitted). On the other hand, to determine whether a state court's decision is an “unreasonable application” of clearly established federal law, the Supreme Court has stated:

The pivotal question is whether the state court's application of the [relevant constitutional] standard was unreasonable . . . 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 [relevant constitutional] standard itself.
A state court's determination that a claim lacks merits precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision. And as the [Supreme Court] has explained, evaluating 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.

Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 785-86 (2011) (citation and quotation marks omitted) (emphasis in original); see also Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 1939 (2007) (“The question under 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.”); Guzman, 663 F.3d at 1346 (“Ultimately, before a federal court may grant habeas relief under § 2254(d), ‘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.'”) (quoting Harrington, 131 S.Ct. at 786-87). As the Supreme Court has stated, “If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings.” Harrington, 562 U.S. at 102, 131 S.Ct. at 786.

         Moreover, a state court's factual determination is entitled to a presumption of correctness under § 2254(e)(1)). And commensurate with the deference accorded to a state court's factual findings, “the petitioner must rebut ‘the presumption of correctness [of a state court's factual findings] by clear and convincing evidence.'” Ward, 592 F.3d at 1155-56 (alterations in original) (quoting § 2254(e)(1)).

         D. The Burden of Proof and Heightened Pleading Requirements for Habeas Petitions

         Additionally, because habeas corpus review is limited to review of errors of constitutional dimension, a habeas corpus petition “must meet [the] heightened pleading requirements [of] 28 U.S.C. § 2254 Rule 2(c).” McFarland v. Scott, 512 U.S. 849, 856, 114 S.Ct. 2568, 2572 (1994) (citation omitted). “[T]he petition must ‘specify all the grounds for relief available to the petitioner' and ‘state the facts supporting each ground.'” Mayle v. Felix, 545 U.S. 644, 655, 125 S.Ct. 2562, 2570 (2005) (quoting Rule 2(c) of the Rules Governing § 2254 Cases in the U.S. District Courts). The burden of proof is on the habeas petitioner “to establish his right to habeas relief and he must prove all facts necessary to show a constitutional violation.” Blankenship v. Hall, 542 F.3d 1253, 1270 (11th Cir. 2008) (citation omitted); see also Smith v. Wainwright, 777 F.2d 609, 616 (11th Cir. 1985) (holding that a general allegation of ineffective assistance of counsel is insufficient; a petition must allege specific errors in counsel's performance and facts showing prejudice).

         E. The General Standard for Ineffective Assistance of Counsel Claims

         In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), the Supreme Court established the following two-pronged standard for judging, under the Sixth Amendment, the effectiveness of attorneys who represent criminal defendants at trial or on direct appeal:

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. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687, 104 S.Ct. at 2064.

         Because Strickland's preceding two-part test is clearly framed in the conjunctive, a petitioner bears the burden of proving both “deficient performance” and “prejudice” by “a preponderance of competent evidence.” Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc); see also Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (“Because both parts of the test must be satisfied in order to show a violation of the Sixth Amendment, the court need not address the performance prong if the defendant cannot meet the prejudice prong, [ ] or vice versa.”). Further, when assessing ineffective assistance of counsel claims:

[I]t is important to keep in mind that in addition to the deference to counsel's performance mandated by Strickland, the AEDPA adds another layer of deference-this one to a State court's decision- when we are considering whether to grant federal habeas relief from a State court's decision. Thus, [a petitioner] not only has to satisfy the elements of the Strickland standard, but he must also show that the State court applied Strickland to the facts of his case in an objectively unreasonable manner.

Williams v. Allen, 598 F.3d 778, 789 (11th Cir. 2010) (brackets in original omitted) (citations and quotation marks omitted) (emphasis in original).

         In order to establish deficient performance, a habeas petitioner “must show that counsel's representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. That reasonableness is judged against “prevailing professional norms.” Id., 104 S.Ct. at 2065. Moreover, under Strickland, lower federal courts must be “highly deferential” in their scrutiny of counsel's performance. Id. at 689, 104 S.Ct. at 2065. As the Strickland Court outlined:

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.

Id., 104 S.Ct. at 2065 (citations and quotation marks omitted).

         Simply put, a habeas petitioner “must establish that no competent counsel would have taken the action that his counsel did take” to overcome the presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Chandler, 218 F.3d at 1315. The reasonableness of counsel's performance is judged from the perspective of the attorney, at the time of the alleged error, and in light of all the circumstances. See, e.g., Newland v. Hall, 527 F.3d 1162, 1184 (11th Cir. 2008) (“We review counsel's performance ‘from counsel's perspective at the time,' to avoid ‘the distorting effects of hindsight.'”) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065).

         To satisfy the prejudice prong, a habeas petition “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Stated differently, “[a] finding of prejudice requires proof of unprofessional errors so egregious that the trial was rendered unfair and the verdict rendered suspect.” Johnson v. Alabama, 256 F.3d 1156, 1177 (11th Cir. 2001) (citations and quotation marks omitted). Further, the fact that counsel's “errors had some conceivable effect on the outcome of the proceeding” is insufficient to show prejudice. Strickland, 466 U.S. at 693, 104 S.Ct. at 2067. Therefore, “when a petitioner challenges a death sentence, ‘the question is whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.'” Stewart v. Sec'y, Dep't of Corr., 476 F.3d 1193, 1209 (11th Cir. 2007) (quoting Strickland, 466 U.S. at 695, 104 S.Ct. at 2069).

         Because Strickland and § 2254(d) both mandate standards that are “‘highly deferential'”, “when the two apply in tandem, review is ‘doubly' so.” Harrington, 131 S.Ct. at 788 (citations omitted). The inquiry is not then “whether counsel's actions were reasonable, ” but is instead “whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id. The court must determine “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.” Id. at 785. This “[d]ouble deference is doubly difficult for a petitioner to overcome, and it will be a rare case in which an ineffective assistance of counsel claim that was denied on the merits in state court is found to merit relief in a federal habeas proceeding.” Evans v. Sec'y, Fla. Dep't of Corr., 699 F.3d 1249, 1268 (11th Cir. 2012).

         Finally, “[s]tate court findings of historical facts made in the course of evaluating an ineffectiveness claim are subject to a presumption of correctness under 28 U.S.C. § 2254(d).” Thompson v. Haley, 255 F.3d 1292, 1297 (11th Cir. 2001).

         1. The Martinez v. Ryan Rule

         In Martinez v. Ryan, the Supreme Court announced a “narrow exception” to the procedural default rule of Coleman, 501 U.S. at 755, 111 S.Ct. at 2546, in the limited circumstances where a state law “requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding.” 566 U.S. 1, 9, 14, 132 S.Ct. 1309, 1315, 1319 (2012). The exception applies only when four conditions are met:

(1) a state requires a prisoner to raise ineffective-trial-counsel claims at the initial-review stage of a state collateral proceeding and precludes those claims during direct appeal; (2) the prisoner did not comply with state rules and failed properly to raise ineffective-trial-counsel claims in his state initial-review collateral proceeding; (3) the prisoner did not have counsel (or his appointed counsel was ineffective by not raising ineffective-trial-counsel claims) in that initial-review collateral proceeding; and (4) failing to excuse the prisoner's procedural default would cause the prisoner to lose a “substantial” ineffective-trial-counsel claim.

Arthur v. Thomas, 739 F.3d 611, 629 (11th Cir. 2014) (citing Martinez, 566 U.S. at 14, 132 S.Ct. at 1319). A following case, Trevino v. Thaler, 569 U.S. 413, 429, 133 S.Ct. 1911, 1921 (2013), extended the Martinez rule to state systems in which it was “virtually impossible” for ineffective assistance claims to be raised on direct appeal.

         In other words, to prevail under Martinez, a petitioner must demonstrate that his trial counsel were ineffective under Strickland in their treatment of a particular issue and that his initial-review collateral appeal counsel were also ineffective under Strickland for failing to raise a claim of ineffective assistance of trial counsel concerning that issue. As the Eleventh Circuit has explained, the petitioner must show “more than the mere fact [collateral counsel] failed to raise potentially meritorious claims; he must show that no competent counsel, in the exercise of reasonable professional judgment, would have omitted those claims.” Hittson v. GDCP Warden, 759 F.3d 1210, 1263 (11th Cir. 2014). In this limited case, “a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial.” Martinez, 566 U.S. at 17, 132 S.Ct. at 1320.

         The Martinez rule applies only in initial-review collateral proceedings; it “does not concern attorney errors in other kinds of proceedings, including appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts.” Id. The Eleventh Circuit has held that Martinez does not serve as a vehicle to allege a freestanding claim of ineffective assistance of state post-conviction counsel. Lambrix v. Sec'y, Fla. Dept. of Corrs., 756 F.3d 1246, 1262-63 (11th Cir. 2014), see also 28 U.S.C. § 2261(e) (“The ineffectiveness or incompetence of counsel during State or Federal post-conviction proceedings in a capital case shall not be a ground for relief in a proceeding arising under section 2254.”).


         A. Woods's claim that he was denied the rights to due process and equal protection when his direct appeal counsel failed to petition for rehearing or file a petition for certiorari

         Woods argues that because his direct appeal counsel failed to file an application for rehearing in the Alabama Court of Criminal Appeals or a petition for certiorari in the Alabama Supreme Court, he was prejudiced and should have been permitted to file further direct appeals out of time.

         This claim is exhausted because Woods raised it during his direct appeal proceedings when he filed the motion for an out-of-time appeal in the Alabama Supreme Court and again on all levels of his Rule 32 proceedings. On appeal from the denial of his Rule 32 petition, the Alabama Court of Criminal Appeals held that the circuit court had been correct that the claim was both precluded under Rule 32.2(a) of the Alabama Rules of Criminal Procedure because it had already been raised and rejected and also held that the circuit court correctly rejected it on its merits. Woods, 221 So.3d at 1144-47. Accordingly, this Court conducts the deferential AEDPA review of the state courts' decision pursuant to 28 U.S.C. § 2254(d).

         As the Alabama Court of Criminal Appeals explained, this claim is meritless. A defendant is constitutionally entitled to counsel on his first direct appeal. See Douglas v. California, 372 U.S. 353, 357-58, 83 S.Ct. 814, 816-17 (1963) (holding that a state may not deny an indigent defendant the assistance of counsel in the defendant's first appeal which is granted by the state as a matter of right); Penson v. Ohio, 488 U.S. 75, 81-82, 109 S.Ct. 346, 350-51 (1988); Jenkins v. State, 972 So.2d 111, 125-26 (Ala.Crim.App.2004), rev'd in part on other grounds, Ex parte Jenkins, 972 So.2d 159 (Ala. 2005). However, the United States Supreme Court has held that there is no right to counsel to pursue application for review by the United States Supreme Court or discretionary state appeals, see Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 834-35 (1985); Wainwright v. Torna, 455 U.S. 586, 587, 102 S.Ct. 1300, 1301 (1982); Ross v. Moffitt, 417 U.S. 600, 615-16, 94 S.Ct. 2437, 2446 (1974), which includes applications for rehearing and certiorari review in Alabama, even in capital cases. See Birdsong v. State, 929 So.2d 1027, 1028 (Ala.Crim.App.2005) (no right to counsel in an application for certiorari review to the Alabama Supreme Court); Kinsey v. State, 545 So.2d 200, 203-04 (Ala.Crim.App.1989) (no right to counsel in applications for rehearing to the Alabama Court of Criminal Appeals); Thomas v. State, 511 So.2d 248, 258 (Ala.Crim.App.1987) (applying rule to death penalty cases); Ala. R. App. P. 39(a).[1] Thus, the fact that Woods's counsel failed to file applications for discretionary appeals does not excuse Woods's own failure to do so. Where there is no right to counsel, the appellant must bear the burden of counsel's actions. See Evitts, 469 U.S. at 396 n.7, 105 S.Ct. at 836 n.7 (“the right to effective assistance of counsel is dependent on the right to counsel itself”).

         Moreover, contrary to Woods's assertion, there is nothing in the Eighth or Fourteenth Amendments that requires the Alabama Supreme Court to grant certiorari review in death penalty cases, particularly in a case such as Woods's, where the would-be petitioner failed to make a timely filing. Woods can point to no United States Supreme Court decision, statute, or rule mandating that an inmate sentenced to death must be granted certiorari review by a state supreme court.

         Relatedly, as Woods was not entitled to counsel in proceedings following the Alabama Court of Criminal Appeals' decision on his first direct appeal, he could not have suffered Strickland prejudice. The cases upon which Woods relies, see, e.g., Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029 (2000), concern direct appeals, not subsequent discretionary appeals, and are therefore inapposite here.

         As this claim is meritless, the state courts' decisions were neither contrary to or involved an unreasonable application of clearly established Federal law, nor an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d). This claim is due to be dismissed.

         B. Woods's claim that his direct appeal counsel was constitutionally ineffective for failing to appeal his attempted murder conviction

         Woods argues that because his direct appeal counsel failed to appeal his attempted murder conviction specifically, he was denied his right to effective assistance of counsel and he should have been permitted to file further direct appeals out of time.

         This claim has not been exhausted because while Woods raised it in his Rule 32 proceedings in the circuit court and the Alabama Court of Criminal Appeals, he failed to raise it in his petition for certiorari in the Alabama Supreme Court. See Pruitt, 348 F.3d at 1359 (citing O'Sullivan, 526 U.S. at 845, 119 S.Ct. at 1732-33). Dismissal of his habeas petition to allow Woods to present this claim fairly as a federal claim in state court now would be futile because it is too late for him to return to state court to exhaust the claim by petitioning the Alabama Supreme Court for certiorari. See Bailey, 172 F.3d at 1305. Thus, because any state remedy with respect to this claim is procedurally barred by the state procedural rules noted above, Woods's claim is procedurally defaulted from habeas review.

         Assuming solely for argument that the claim was not barred, it fails on the merits. It is unclear what relief Woods could hope to gain from an appeal of his non-capital conviction. As the circuit court discussed in dismissing a related claim:

It is also important to note that Woods's four capital convictions (which were appealed) and his attempted murder conviction all stemmed from the same occurrence-the shootings of four Birmingham police officers. There was absolutely no evidence in this case (nor does Woods even allege) that the capital murders and the attempted murder were separate and distinct crimes. Rather, the four capital murders and the attempted murder were all committed as part of a single course of conduct. Further, on appeal from Woods's capital convictions and sentences of death, the Alabama Court of Criminal Appeals scrupulously searched the record for any error that adversely affected Woods's substantial rights and failed to find any.

Vol. 30, Tab #R-62, at ¶ 41-42. Therefore, this claim is due to be dismissed.

         C. Woods's claim that the State withheld evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763 (1972)

         Woods contends that the State violated its obligations under Brady v. Maryland and Giglio v. United States because it failed to disclose that two State witnesses, Fernando Belser and Marquita McClure, were allegedly threatened or induced into giving testimony favorable to the State, plus other unspecified “exculpatory and impeachment evidence.”

         Woods raised this claim for the first time in his Rule 32 petition. The circuit court dismissed it for three reasons: it was precluded by Rules 32.2(a)(3) and (a)(5) of the Alabama Rules of Criminal Procedure because it could have been raised at trial or on direct appeal, but was not; it was insufficiently pleaded under Rule 32.3 and 32.6(b) of the Alabama Rules of Criminal Procedure; and it was facially meritless. While Woods raised this claim in the Alabama Court of Criminal Appeals on appeal from the denial of his Rule 32 petition, that court failed to fully address the issue. Thus, the circuit court is the last court to have given a reasoned denial of the claim. See Ylst, 501 U.S. at 804, 111 S.Ct. at 2594 (“Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.”).

         First, the circuit court found that the claim was precluded by Rules 32.2(a)(3) and (a)(5) because it could have been raised at trial or on direct appeal, but was not. The Alabama Court of Criminal Appeals has held that a Brady claim raised on Rule 32 review is precluded unless it concerns newly discovered evidence or evidence that was allegedly suppressed until such time as the evidence could not be presented at trial. Boyd v. State, 913 So.2d 1113, 1142 (Ala.Crim.App.2003). The circuit court found that Woods did not base his Brady claim on newly discovered evidence or evidence that was allegedly suppressed until such time as the evidence could not be presented at trial. In this circuit, claims barred under Rules 32.2(a)(3) and (a)(5) are procedurally defaulted from habeas review. Boyd v. Comm'r, Ala. Dep't of Corrs., 697 F.3d 1320, 1335 (11th Cir. 2012). Accordingly, Woods is due no relief.

         As noted, the circuit court also found that the claim was insufficiently pleaded under Rules 32.3 and 32.6(b) based on Woods's failure to plead facts sufficient to satisfy the five-part test in Rule 32.1(e) for newly discovered evidence and that it was facially meritless. A Rule 32 dismissal for lack of specificity is a merits ruling in this circuit. Borden v. Allen, 646 F.3d 785, 812-13 (11th Cir. 2011). As such, this Court conducts the deferential AEDPA review of the state court's decision pursuant to 28 U.S.C. § 2254(d). The circuit court's decision was not contrary to, nor did it involve an unreasonable application of, Brady, nor did it result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented. As explained by the Eleventh Circuit:

A Brady violation has three components: “[1] The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [2] that evidence must have been suppressed by the State, either willfully or inadvertently; and [3] prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Evidence is not considered to have been suppressed if “the evidence itself . . . proves that [the petitioner] was aware of the existence of that evidence before trial.” Felker v. Thomas, 52 F.3d 907, 910 (11th Cir. 1995). The prejudice or materiality requirement is satisfied if “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); see also Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Materiality is determined by asking whether the government's evidentiary suppression undermines confidence in the guilty verdict. See Kyles, 514 U.S. at 434, 436-37 & n. 10, 115 S.Ct. 1555.

Boyd, 697 F.3d at 1334-35. Woods failed to plead exactly what information was withheld or how it was material to the defense, relying instead on vague assertions that the witnesses were “threatened or offered inducements.” Moreover, the State told the trial court that it “intends to provide the defendant with open file discovery and items within its possession, custody and control.” Vol. 1 at C. 140. Accordingly, Woods has not established that he is entitled to relief pursuant to 28 U.S.C. § 2254(d).

         D. Woods's claim that evidence of prior bad acts was erroneously admitted in violation of his rights to due process, a fair trial, and a reliable sentence under the Sixth, Eighth, and Fourteenth Amendments

         Woods raises five sub-issues within this claim: (a) the trial court improperly admitted a misdemeanor domestic violence warrant for Woods and the fact that police officers located him in the “city files” that exist “if you have been arrested;” (b) the court improperly admitted evidence of his contemporaneous drug sales and gun use; (c) the court improperly admitted evidence of his conduct toward police officers on other occasions, such as the instance when he was stopped by police for looking suspicious and he told Fairfield officer Greg Parker that he “could have” shot him and the instance when he allegedly said to Deputy Powell at the county jail that Powell was “hiding behind [his] badge just like the three other mother fuckers; and that if he wins his case, he was going to come look for [Powell];” (d) the court improperly admitted items found in Woods's jail cell, including the violent drawings and rap lyrics; and (e) the court's limiting instructions were inadequate.

         Woods raised this entire claim for the first time in his Rule 32 proceedings, but he did not raise it on appeal from the Rule 32 denial in the Alabama Court of Criminal Appeals or in his petition for certiorari to the Alabama Supreme Court.[2]The claim has thus not been exhausted and is not properly before this Court. Dismissal of his habeas petition to allow Woods to present this claim fairly as a federal claim in state court now would be futile because it is too late for him to return to state court to exhaust the claim by appealing and/or petitioning the Alabama Supreme Court for certiorari. Bailey, 172 F.3d at 1305. Thus, because ...

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