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Barksdale v. Dunn

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

December 21, 2018

TONY BARKSDALE, AIS No. 0000z611, Petitioner,
v.
JEFFERSON S. DUNN, Commissioner, Alabama Department of Corrections, Respondent.

          MEMORANDUM OPINION AND ORDER

          W. Keith Watkins, CHIEF DISTRICT JUDGE

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

         I. BACKGROUND

         A. The Offense and Aftermath

         Late on the afternoon of December 1, 1995, Petitioner Tony Barksdale fatally shot 19-year-old Julie Rhodes twice - one in the face and once in the back. That fact has never been in genuine dispute. The circumstances under which Petitioner twice shot his victim, however, were actively contested and litigated fully during Petitioner's November 1996 capital murder trial.

         The Alabama Court of Criminal Appeals' opinion affirming Petitioner's conviction and sentence of death includes the following description of the relevant circumstances surrounding Petitioner's fatal shooting of Julie Rhodes, which quotes extensively from the trial court's Sentencing Order[2]:

On Thursday night [November 30, 1995], [Tony] Barksdale, [Jonathan David] Garrison, and [Kevin] Hilburn were together in the Guntersville area. Barksdale wanted to go to Alexander City, so very early Friday morning they stole a car in Guntersville and headed for Alexander City. About seven o'clock in the morning they wrecked the car near Sylacauga, but were able to obtain a ride from someone in the neighborhood, who took them to Alexander City.[3] Throughout most of the day, they visited or came in contact with persons with whom Barksdale was acquainted, and asked several of them to take them to Guntersville.[4] No. one would. During that afternoon, they made many attempts to flag down vehicles belonging to strangers, but few would stop.[5] Finally one person gave them a ride as far as a local shopping center.[6] They approached several people without success. One acquaintance testified that Barksdale said he would “jack” somebody to get back to Guntersville.[7] Several others testified to seeing him with a gun.[8] Barksdale had the gun when the three left Guntersville, and he was the only one armed. Barksdale told the other two that he would shoot someone in order to get a ride back to Guntersville, and he would rather shoot one than two.[9]
The victim, 19-year-old Julie Rhodes, worked at a store in the shopping center. As she was returning in her old Maxima automobile from her supper break to the parking area, Barksdale flagged her down and the three of them got in the car with the victim.[10] Barksdale was seated in the backseat. He gave Julie directions to drive in the neighborhood, and to turn into a “dead-end” street and stop.[11] Garrison and Hilburn got out and ran behind a nearby shed.[12] The Maxima moved along the street past several houses, turned into a driveway, backed out, and came back down the street.[13] Two shots were fired by Barksdale and the car stopped.[14] Barksdale pushed Julie out of the car and told Garrison and Hilburn to get in.[15] They went to some place in Alexander City and disposed of somethings that were in the car and then drove back to Guntersville.[16] Barksdale still had the gun and displayed it to several people. All of them were arrested several days later and the automobile and pistol were recovered.[17]
Desperately seeking help and trying to escape, Julie managed to get to some nearby houses.[18] Someone heard her screams and she was discovered lying in the yard of a house, bleeding profusely.[19] Medics were called and she was transported to a local hospital for emergency treatment and then transported by helicopter to Birmingham[20] She was dead on arrival in Birmingham.[21] She was shot once in the face and once in the back. She was bleeding to death and went into shock.[22] She was fearful and was trying to escape her assailant and expressed several times to various people, including medical personnel, that she was going to die.[23] She was correct.

Barksdale v. State, 788 So.2d 898, 901-02 (Ala.Crim.App.2000), cert. denied, 788 So.2d 915 (Ala. 2000), cert. denied, 532 U.S. 1055 (2001) (Footnotes added).

         B. Indictment

         On February 9, 1996, a Tallapoosa County grand jury indicted Petitioner and David Garrison on three counts of capital murder, i.e., three different theories concerning the fatal shooting of Julie Rhodes.[24]

         C. The Fate of Petitioner's Co-Defendants

         Although arrested with Petitioner and Garrison, by the time of Petitioner's capital murder trial Kevin Hilburn was deceased.[25] Shortly before the start of their joint capital murder trial, Petitioner's co-defendant Garrison accepted a plea bargain, entered a guilty plea to a lesser charge of murder, and received a life sentence with the possibility of parole.[26] As part of his plea bargain, Garrison agreed to testify against Petitioner.[27]

         D. Guilt-Innocence Phase of Trial

         Jury selection in Petitioner's capital murder trial commenced on November 11, 1996.[28] The guilt-innocence phase of Petitioner's capital murder trial began November 20, 1996.[29]

         1. Prosecution's Evidence

         In addition to the testimony summarized above in Section I.A., the prosecution presented and the jury heard testimony from (1) Julie's co-workers and grandmother about the events of the evening in question, [30] (2) a person who saw her vehicle driving erratically just prior to the fatal shooting, [31] (3) two people who were in the neighborhood where Julie was shot who heard gunfire, [32] (4) the law enforcement officer who took custody of Julie's bloody clothing at the hospital in Alexander City where she was initially treated, [33] (5) forensic scientists who examined the physical evidence recovered during the investigation of Julie's fatal shooting, [34] including the weapon that fired the fatal shots, [35] (6) law enforcement officers who examined, photographed, and recovered a spent bullet and multiple bloodstains from the area near the intersection in Alexander City where Julie's fatal shooting took place, [36] and (7) a number of Petitioner's acquaintances with whom Petitioner had conversations about his gun and the fatal shooting in Alexander City, [37] including the young man to whom Petitioner gave the gun Petitioner used to fatally shoot Julie Rhodes.[38] Numerous witnesses in the Guntersville and Albertville areas testified they observed Petitioner, Garrison, and Hilburn in Julie Rhodes's Nissan Maxima and heard Petitioner and his companions claim ownership of the vehicle in the hours and days after her fatal shooting.[39]

         A surgeon who treated Julie in the emergency room and operated on her at the hospital in Alexander City testified regarding her injuries and his surgical team's efforts to stabilize her prior to her transport to Birmingham.[40] The forensic pathologist who conducted Julie's autopsy testified regarding the nature of her wounds and her cause of death.[41]

         A previous owner of the pistol Petitioner used to fatally shoot Julie Rhodes testified that he bought the gun new and it jammed the first time he fired it. He had repeated problems with the mechanism that pulls the spent shell casing out of the chamber after firing. The clip that holds the retainer on the side would slide out and also cause the gun to jam, The gun's safety also moved back and forth when the gun was fired repeatedly. He traded the gun in to a dealer in 1992. He had no idea what had happened to the gun in the intervening years but, after examining it on the stand at Petitioner's trial, it was apparent that “someone has done extensive work on it.” The gun now had a new grip. The gun was a single action semi-automatic that had to be cocked the first time before it would fire, i.e., if you fire it twice, you have to pull the trigger twice. He told police he had never experienced any type of accidental discharge of the weapon.[42]

         The law enforcement officer who interviewed Petitioner on December 4, 1995 identified an audio tape recording of that interview that was played in open court for the jury as part of the prosecution's case-in-chief.[43] As recorded by the court reporter, Petitioner's recorded statement included the following exchanges:

INVESTIGATOR RIDDLE: What can you tell me about that? In your own words, explain to me what happened, okay?
MR. BARKSDALE: Well, we was stuck up at a mall. They was having a parade. She had pulled up. I asked her if she could give us a ride to one of my friend's houses. And while we was driving, she said she had to be at work. I said that she could drop us off close to where my friend's house was at. I had already had the gun on me. One of my friends had gave me a gun earlier that day. I didn't want her to be scared. I didn't want to be walking down the street with a loaded pistol.
INVESTIGATOR RIDDLE: Un, huh.
MR. BARKSDALE: I was trying to empty the chamber. As I went to empty the chamber, it got stuck. The gun went off. It went off twice. It went boom. I did it the first time. I did it like this and it went boom.
INVESTIGATOR RIDDLE: Did you know you hit her the first time?
MR. BARKSDALE: The first time when it went off, I heard her screaming. Then when it went off the second time, that is when she looked back at me. I saw blood in her mouth. I went into shock myself. I thought naw, naw I couldn't have done this. This couldn't be happening. I got out of the car. I jumped out of the driver's seat . . . . I mean, I jumped out of the passenger's seat and got in the driver's seat. I pulled around the corner where Kevin and Dave was at. They had already got out of the car. Before I got out of the car, I wanted to make sure it was unloaded and that there wouldn't none in the chamber. That was my first time really ever having an automatic pistol. So, it got jammed and went off. When it went off the first time, I don't know how it went off the second time. It just went boom, boom.
INVESTIGATOR RIDDLE: Yes, uh, what happened after you shot her? What happened then?
MR. BARKSDALE: I drove . . . I got in the car.
INVESTIGATOR RIDDLE: What did you do with her?
MR. BARKSDALE: Nothing.
INVESTIGATOR RIDDLE: Where did you leave her?
MR. BARKSDALE: I don't remember the road.
INVESTIGATOR RIDDLE: I mean, did you leave her on the road or what? When you shot her, did she get out of the car or did she stay in the car?
MR. BARKSDALE: Yea, she got out of the car. She got out of the car. I didn't force her out or nothing like that. She opened the door and got out.
INVESTIGATOR RIDDLE: Was she screaming when she got out?
MR. BARKSDALE: Yea.
INVESTIGATOR RIDDLE: You knew you had shot her?
MR. BARKSDALE: I knew I had shot her. But I didn't think I had hit her somewhere where it could have been fatal.
INVESTIGATOR RIDDLE: You do know that she did die?
MR. BARKSDALE: Yea.
INVESTIGATOR RIDDLE: Okay, after she got out of the car what happened?
MR. BARKSDALE: I am not sure. I blacked out. All I saw . . . I didn't see nothing around me. All I saw was the car and it felt like I was running in slow motion trying to get her out of the passenger side around to the car to the driver's side.
INVESTIGATOR RIDDLE: Yes, okay, did you drive the car off?
MR. BARKSDALE: Yes, I had drove it for a little bit. Then David drove.
INVESTIGATOR RIDDLE: Ya'll brought it to Guntersville. Is that correct?
MR. BARKSDALE: Yea.[44]

         The prosecution concluded its case by calling Petitioner's co-defendant Garrison to testify that he, Hilburn, and Petitioner stole a Taurus they found unlocked and drove the stolen Taurus to Alexander City. Near Sylacauga they totaled the car, i.e., drove off the road, ran over a fence, and ran into a dirt bank. A nearby homeowner agreed to drive them to Alexander City. The man dropped them off at a white house. Later they got a ride from a black guy into Alexander City to the Knollwood apartments. Later still they tried to flag down rides as they walked along the road. When it got dark, a white couple in a black truck picked them up and drove them to the Alexander City shopping center, from which they watched some of the Christmas parade. They looked for someone who would drive them back to Guntersville. Petitioner said if he had to, he would shoot someone to get a ride and preferred to shoot one person rather than two. Petitioner spoke with the female driver of a gray Maxima who agreed to give them a ride. Petitioner gave the driver directions and directed her to turn up the rap music to which she was listening. Petitioner directed her to drive into a neighborhood and to stop, The driver did as Petitioner directed. All three passengers opened their doors to get out of the car. Garrison set the Christmas packages he had been holding on the seat and saw Petitioner reach for his gun. Garrison slammed his door closed as he exited the vehicle and ran behind a shed behind a house. Hilburn followed Garrison. As they ran, they heard the female driver yell “Please don't, don't shoot me.” The female driver mashed on the gas pedal and pulled into a driveway. Dogs ran up to the car barking. Garrison heard Petitioner yell “Bitch, you ain't going to let me out right here.” The female driver backed the car out of the driveway into the road facing the opposite direction she had been moving.[45]

         Garrison testified he then heard two gunshots. He could see flashes of light through the tinted windows of the car as the car was still rolling. Garrison heard the emergency brake being pulled and tires squealing. He saw the female driver get out and Petitioner push her in the back away from the car. The female driver ran down the street. Garrison could hear her crying. Petitioner could see Garrison and Hilburn behind the shed, pointed the gun at them, and told them to get back in the car. Garrison and Hilburn got back in the car. Petitioner was wearing jeans and a stolen white jacket. They drove back to the white house. There was blood inside the car and a hole in the front driver's side window. They went to an older woman's house and took everything from inside the car into her house. Petitioner told the older woman he had just shot a girl but didn't know if she was dead. They got back in the car and drove to Guntersville. On the drive back to Guntersville, Petitioner told them to keep their mouths shut and not tell anyone what had happened. In Gunterville, they went to a place near the Kiwanis Pier where teenagers hang out. Later they went to Candace Talley's apartment. Petitioner still had his gun. They threw the Tallapoosa County license plate and smiley face front license plates off the stolen car into the lake. Petitioner told everyone at Candace Talley's apartment that he shot the girl by accident, but Petitioner never told Garrison that he shot her by accident.[46]On cross-examination, Garrison testified he had pleaded guilty to a charge of murder and received a life sentence as part of a plea agreement that required him to testify against Petitioner.[47] On re-direct, Garrison testified his plea agreement required him to testify truthfully.[48]

         2. The Defense's Evidence

         The defense presented a single witness at the guilt-innocence phase of trial, a firearms expert, who testified that (1) he had examined the 9 mm pistol identified as State Exhibit 76A in October 1996, (2) all the safeties worked according to design, (3) inserting the magazine in the unloaded weapon caused the safety to move from safe position to fire position, (4) inserting the magazine caused the slide release hold to disconnect itself, chambering a round, (5) while laying on its side, the gun's slide release disconnected, allowing the slide to move forward without anyone touching the gun, (6) once while he test-fired the gun, it jammed and he had to forcibly open the slide to extract the spent shell casing from the chamber of the weapon, (7) when he tried to unload the gun by cycling the slide, i.e., by putting each round in the chamber and ejecting it without firing, the first magazine went okay but the second magazine jammed, (8) the overall condition of the weapon was bad - it had been abused substantially, and (9) employing photographs of the gun, he was able to identify numerous marks and indentations on the gun.[49] On cross-examination, the defense expert testified that during all of his testing, the gun twice jammed but never misfired and, based upon his review of the relevant documents and his testing of the weapon, he believed the weapon was physically located above the points of entry into Julie Rhodes's body at the time both shots were fired.[50]

         3. Guilt-Innocence Phase Charge Conference

         During the guilt-innocence phase jury charge conference the trial judge expressed grave reservations with the viability of the third count of the indictment against Petitioner under the evidence presented.[51] The trial judge subsequently granted the defense's motion for acquittal on count three.[52]

         4. The Verdict

         On November 24, 1996, following closing jury argument, [53] the jury returned its verdict at the guilt-innocence phase of Petitioner's capital murder trial, unanimously finding Petitioner guilty beyond a reasonable doubt of the offenses charged in both count one and count two of the indictment.[54]

         E. Punishment Phase of Trial

         The punishment phase of Petitioner's capital murder trial commenced the same date. Both parties waived opening argument. Other than re-offering all of the evidence previously introduced and admitted, the prosecution presented only a redacted version of a certified copy of Petitioner's judgment of conviction from Virginia on a charge of robbery, which exhibit the trial court admitted without objection; then the prosecution rested.[55] The defense likewise offered a single document, a certified copy of Petitioner's birth certificate, which the Circuit Court also admitted without objection.[56] Following closing jury argument, [57] the jury returned its verdict, recommending the imposition of a sentence of death by a vote of eleven to one on each of the two counts.[58]

         F. Sentencing Hearing

         At Petitioner's sentencing hearing on December 17, 1996, both parties informed the trial court they had no additional evidence to present and focused their arguments primarily on whether Petitioner's offense qualified as “heinous, atrocious, and cruel.”[59] On January 14, 1997, the trial court issued its Sentencing Order adopting the jury's sentencing recommendation and imposed a sentence of death.[60]

         G. Direct Appeal

         Petitioner appealed his conviction and sentence.[61] In an opinion issued March 31, 2000, the Alabama Court of Criminal Appeals affirmed Petitioner's conviction and sentence. Barksdale v. State, 788 So.2d 898 (Ala.Crim.App.2000). The Alabama Supreme Court denied certiorari on December 15, 2000. Ex parte Tony Barksdale, 788 So.2d 915 (Ala. 2000). The United States Supreme Court denied certiorari May 29, 2001. Barksdale v. Alabama, 532 U.S. 1055 (2001).

         H. Rule 32 Proceeding

         On May 22, 2002, Petitioner filed his petition for relief from judgment pursuant to Rule 32, asserting nineteen multifaceted claims for relief.[62] In an Order issued January 6, 2003, the Circuit Court summarily dismissed and denied all but two of Petitioner's claims for relief, finding (1) Petitioner procedurally defaulted on most of his substantive claims by failing to present them on direct appeal, (2) Petitioner's remaining substantive claims were without merit, and (3) Petitioner failed to allege sufficient facts in support of the vast majority of his ineffective assistance claims, in violation of Rules 32.3 and 32.6(b) of the Alabama Rules of Criminal Procedure.[63]

         The Circuit Court held an evidentiary hearing on Petitioner's surviving claims on June 23-24, 2005, during which it heard testimony from Petitioner's mother, Petitioner's former trial counsel, a retired Marine Lieutenant Colonel, and a North Carolina trial attorney. In an Order issued October 4, 2005, the Circuit denied relief on Petitioner's remaining claims, concluding Petitioner's ineffective assistance claim addressing his trial counsel's alleged failure to investigate and present mitigating evidence failed to satisfy the prejudice prong of the Strickland standard and Petitioner failed to present any evidence whatsoever in support of his complaint about alleged emotional displays by the victim's family before the jury.[64]

         Petitioner appealed the trial court's denial of his Rule 32 petition.[65] On August 24, 2007, the Alabama Court of Criminal Appeals issued a memorandum affirming the trial court's denial of Rule 32 relief.[66] Petitioner filed an application for rehearing and brief in support in the Alabama Court of Criminal Appeals and, subsequently, a petition for writ of certiorari in the Alabama Supreme Court.[67] In a Certificate of Judgment issued April 26, 2008, the Alabama Supreme Court denied Petitioner's petition for writ of certiorari.[68]

         I. Proceedings in this Court

         On May 2, 2008, Petitioner filed his original federal habeas corpus petition, asserting three extremely broad categories of claims for relief (Doc. # 1).[69] Respondent filed an answer on September 4, 2008 (Doc. # 22). Respondent filed a brief regarding procedurally defaulted claims on October 14, 2009 (Doc. # 41). On November 16, 2009, Petitioner filed a brief responding to Respondent's procedural default arguments and addressing the merits of all claims (Doc. # 45). On January 11, 2010, Petitioner filed another brief addressing the merits of his claims (Doc. # 50). After a passage of more than six years, the parties filed additional briefing. More specifically, on August 26, 2016, Petitioner filed a supplementary memorandum “regarding recent authorities” in support of his petition (Doc. #57). On September 26, 2016, Respondent filed a supplemental brief responding to Petitioner's brief on recent authorities (Doc. # 58). On October 6, 2016, Petitioner filed a response to Respondent's supplemental memorandum (Doc. # 59).

         II. AEDPA STANDARD OF REVIEW

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

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

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

         As the Supreme Court has explained:

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

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

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

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

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

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

         III. ALLEGED ERRORS DURING RULE 32 PROCEEDING

         A. The Claims

         In his second group of claims for federal habeas corpus relief, Petitioner argues the state habeas court committed a litany of errors during his Rule 32 proceeding, including adopting verbatim the State's proposed findings and conclusions, improperly limiting the scope of his discovery, and erroneously applying state procedural and evidentiary rules.[70]

         B. Clearly Established Federal Law

         Federal habeas corpus relief does not lie for errors of state law, including the allegedly erroneous admission of evidence under state evidentiary rules. Estelle v. McGuire, 502 U.S. 62, 67 (1991). It is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. Id., 502 U.S. at 67-68. State court rulings on matters such as the admissibility of evidence under state evidentiary rules and the interpretation of substantive state case law bind a federal court in habeas corpus proceedings. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”); Loggins v. Thomas, 654 F.3d 1204, 1228 (11th Cir. 2011) (“Alabama law is what the Alabama courts hold that it is.”); Hendrix v. Sec'y, Fla. Dep't of Corr., 527 F.3d 1149, 1153 (11th Cir.) (state court ruling on issue of recusal under Florida state law bound federal habeas court), cert. denied, 555 U.S. 1004 (2008).

         Furthermore, defects in state collateral proceedings do not provide a basis for federal habeas relief. See Alston v. Dep't of Corr., Fla., 610 F.3d 1318, 1325-26 (11th Cir. 2010) (federal habeas relief is available to remedy defects in a defendant's conviction and sentence but not alleged defects in a collateral proceeding because a challenge to a state collateral proceeding does not undermine the legality of the detention or imprisonment), cert. denied, 562 U.S. 1113 (2010); Carroll v. Sec'y, Dep't of Corr. 74 F.3d 1354, 1365 (11th Cir.) (“a challenge to a state collateral proceeding does not undermine the legality of the detention or imprisonment, i.e., the conviction itself-and thus habeas relief is not an appropriate remedy”), cert. denied, 558 U.S. 995 (2009); Quince v. Crosby, 360 F.3d 1259, 1261-62 (11th Cir.) (“an alleged defect in a collateral proceeding does not state a basis for habeas relief”), cert. denied, 543 U.S. 960 (2004). Furthermore, such challenges often involve issues of state law, and a state's interpretation of its own laws or rules provides no basis for federal habeas corpus relief since no question of a constitutional nature is involved. Alston v. Dep't of Corr., Fla., 610 F.3d at 1326.

         C. Conclusions

         Petitioner's complaints of alleged error committed by the state trial court during Petitioner's Rule 32 proceeding, i.e., the arguments contained in paragraphs 104 through 195 of Petitioner's federal habeas corpus petition, do not furnish an arguable basis for federal habeas corpus relief. In light of the Supreme Court's holdings in Bradshaw v. Richey and Estelle v. McGuire, these voluminous complaints are without arguable legal basis and potentially a violation of Rule 11(b)(1) & 11(b)(2), Fed.R.Civ.P.

         IV. ALLEGED TRIAL COURT ERRORS

         A. Overview of the Claims

         In his third group of claims for federal habeas relief, Petitioner argues that the state trial court committed a variety of constitutional errors, including (1) refusing to give Petitioner's requested jury instructions on accident, (2) giving a misleading instruction on the burden of proof regarding mitigation, (3) finding Petitioner's offense was “heinous, atrocious, or cruel, ” (4) refusing to consider Petitioner's age as a mitigating circumstance, (5) failing to hold the State of Alabama's method of execution (at that time electrocution) was cruel and unusual, (6) failing to hold the Alabama capital sentencing scheme violates equal protection principles by disproportionately resulting in the conviction and capital sentencing of black men, (7) failing to hold Petitioner's indictment under three different theories of capital murder and conviction on two different counts of capital murder violated Double Jeopardy principles, (8) failing to hold the prosecution improperly compared Petitioner to the Nazis and Adolf Hitler during closing jury argument, and (9) improperly employing Petitioner's convictions on multiple theories of capital murder as separate and independent aggravating circumstances.[71]

         B. Failure to Give Petitioner's Requested Jury Instruction on “Accident”

         1. State Court Disposition

         In his second ground for relief on direct appeal, Petitioner argued the state trial court erred at the guilt-innocence phase of trial in refusing to give Petitioner's requested jury instructions on “accident, ” citing the Supreme Court's holding in Beck v. Alabama, 447 U.S. 625, 627-38 (1980) (a sentence of death may not be constitutionally imposed after a jury verdict of guilt of a capital offense when the jury was not permitted to consider a verdict of guilt of a non-capital offense when the evidence would have supported such a verdict).[72] The Alabama Court of Criminal Appeals rejected this argument on the merits, concluding the Petitioner's requested jury instructions contained misstatements of state law and the trial court properly refused to give the requested instructions. Barksdale v. State, 788 So.2d at 905-06. The Petitioner included the same argument in his petition for certiorari.[73]The Alabama Supreme Court denied certiorari. Ex parte Tony Barksdale, 788 So.2d at 915.

         2. Clearly Established Federal Law

         As noted previously, federal habeas corpus relief does not lie for errors of state law, including the allegedly erroneous admission of evidence under state evidentiary rules. Estelle v. McGuire, 502 U.S. at 67. It is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. Id., 502 U.S. at 67-68. State court rulings on matters such as the admissibility of evidence under state evidentiary rules and state case law bind a federal court in habeas corpus proceedings. See Bradshaw v. Richey, 546 U.S. at 76 (“We have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”); Loggins v. Thomas, 654 F.3d at 1228 (“Alabama law is what the Alabama courts hold that it is.”).

         3. AEDPA Analysis

         Petitioner's audio-recorded statement to police and the identifying testimony of a law enforcement officer established that, following his arest, Petitioner told police he did not intentionally shoot Julie Rhodes.[74] Through cross-examination, Petitioner's trial counsel elicited testimony from prosecution witnesses Antoine Harris[75] and Jason Scott Mitchell, [76] establishing that Petitioner told each of them his fatal shooting of Julie Rhodes was not an intentional act. Nonetheless, the state trial court's refusal to give Petitioner's requested jury instruction on “accident” did not violate Petitioner's federal constitutional rights. Unlike the capital murder defendant's jury in Beck, the state trial court instructed Petitioner's jury on a plethora of lesser-included offenses. Furthermore, the state appellate court concluded Petitioner's requested instruction on “accident” was an erroneous statement of applicable state law. Barksdale v. State, 788 So.2d at 906. That conclusion regarding the nature of state law binds this court's federal habeas corpus review of this claim. Bradshaw v. Richey, 546 U.S. at 76 (“We have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”). Nothing in the Constitution required the state trial court to give Petitioner's jury an instruction on “accident” that was erroneous under applicable state law.

         The state trial court instructed Petitioner's jury at the guilt-innocence phase of trial that the jury was required to find beyond a reasonable doubt that Petitioner intentionally murdered Julie Rhodes in the course of committing or attempting to commit a robbery before it could return a guilty verdict to count one of the indictment.[77] The trial court also instructed the jury on the lesser-included offenses of theft, robbery, felony murder, manslaughter, and criminally negligent homicide.[78] With regard to the second count, the state trial court instructed the jury that (1) it could convict Petitioner only if the jury concluded beyond a reasonable doubt that the Petitioner intentionally used a deadly weapon to murder Julie Rhodes while she was in a vehicle, and (2) the same lesser-included offenses applied to this charge as well.[79] The jury returned its verdict, finding beyond a reasonable doubt that Petitioner intentionally murdered Julie Rhodes (1) “during robbery” and (2) “during use of deadly weapon - V in vehicle.”[80] Thus, the state trial court properly instructed Petitioner's jury on the burden of proof required to convict Petitioner of intentional murder and furnished the jury a vehicle through which it could have found Petitioner guilty of the lesser-included offenses discussed above if the jury had determined Petitioner did not intentionally kill Julie Rhodes. The Constitution requires nothing more. See Schad v. Arizona, 501 U.S. 624, 647 (1991) (“'The goal of the Beck rule, in other words is to eliminate the distortion of the factfinding process that is created when the jury is forced into an all-or-nothing choice between capital murder and innocence.'” quoting Spaziano v. Florida, 468 U.S. 447, 455 (1984)); Roberts v. Commn'r, Ala. Dep't of Corr., 677 F.3d 1086, 1094-95 (11th Cir. 2012) (the rule in Beck was not implicated where the trial court charged the jury on the lesser-included offense of non-capital intentional murder), cert. denied, 568 U.S. 1131 (2013); Powell v. Allen, 602 F.3d 1263, 1271 (11th Cir. 2010) (the rule in Beck was inapplicable where the trial court instructed the capital murder jury on the lesser-included offenses of intentional non-capital murder and manslaughter), cert. denied, 562 U.S. 1183 (2011).

         The state trial court furnished Petitioner's jury the means to find Petitioner guilty of several different lesser-included offenses, including manslaughter and criminally negligent homicide, had the jury concluded that Petitioner's fatal shooting of Julie Rhodes was not an intentional act. Petitioner does not challenge the sufficiency of the evidence supporting the jury's guilty verdicts at the guilt-innocence phase of trial. The jury's unanimous guilty verdicts, rendered beyond a reasonable doubt, necessarily precluded a finding that Petitioner's fatal shooting of Julie Rhodes was accidental. The state trial court's rejection of Petitioner's requested jury instructions on “accident” did not violate Petitioner's federal constitutional rights.

         4. Conclusions

         The Alabama appellate court's rejection on the merits during Petitioner's direct appeal of Petitioner's complaint about the state trial court's refusal to give Petitioner's requested jury instruction on “accident” was neither contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial and direct appeal proceedings. Paragraphs 199-200 of Petitioner's federal habeas corpus petition do not warrant federal habeas corpus relief.

         C. Jury Instructions on Burden of Proof and Unanimity on Mitigation

         1. State Court Disposition

         At the conclusion of the evidentiary portion of the punishment phase of Petitioner's capital murder trial, i.e., after both parties rested, the trial judge instructed the jury as follows:

All right. Here is where we are. State has offered matters for your consideration as aggravating circumstances and the defendant has offered matters for your consideration as mitigating circumstances.
Let me simply tell you that the burden of proof is on the State to prove the aggravating circumstances beyond a reasonable doubt. And, that's the same definition of reasonable doubt that I gave you during the guilt phase.
Now, the defendant does not have the burden of proving mitigating circumstances beyond a reasonable doubt. The defendant, for you to accept them and consider, only has to offer mitigating circumstances which reasonably satisfy you of the truth of it.
Now, let me make it clear that we are not talking about numbers. We are not talking about how many aggravating circumstances on this side -- has got to be at least one -- or how many mitigating circumstances there are on that side. It is not a matter of numbers. It is a matter of simply your going back there and saying, I, all twelve of you, agree that the State has established this aggravating circumstance beyond a reasonable doubt, and that aggravating circumstance, and that aggravating circumstance beyond a reasonable doubt, if there are that many. There could be more or there could be less. And, then you say, all twelve of you have got to agree, the defendant has reasonably satisfied us by and from the evidence presented during the penalty phase -- defense can use what you heard during the guilt phase also. That they are this mitigating, this mitigating factor, that mitigating factor, that mitigating factor. Numbers don't count.
Once you unanimously agree to consider this aggravating factor or this mitigating factor, then it is your duty to weigh the, weigh them, with a view to determining do the aggravating factors outweigh the mitigating factors? And, if ten of you agree, then you could recommend the death penalty. Unless ten of you agree, you can't. And, then you weigh them and you look at them and you say, well, in my viw the mitigating factors might outweigh the aggravating factors. If seven of you feel that way, then your recommendation ought to be life without parole. Obviously, there could be disagreement. And, I'm going to tell you that you should attempt to resolve it, talk about it, vote on it, and discuss it. You have got the same foreperson that you always had.
So let's talk about aggravating factors and mitigating factors.[81]

         At that point, a brief side bar conference took place. The trial judge then continued with his punishment phase jury instructions as follows:

So, in just a moment I'm going to talk to you about aggravating factors and mitigating factors and give you further instructions as to how you are going to deal with them.
Now, at this time counsel will have an opportunity to make arguments regarding their evidence of aggravating factors and mitigating factors. As in the trial in chief, the State, because the burden is still on the State regarding the aggravating factors weighing more than the mitigating factors, the State has the right to open and close the argument. Gentlemen, you may address the jury regarding this phase.[82]

         After counsel for both parties completed their closing argument at the punishment phase, the trial judge continued his jury instructions as follows:

Ladies and gentlemen, I attempted to explain to you before the arguments the context which we were here to consider it [sic], the matter that is being submitted to you at this time. You have been reminded, perhaps not in this context, that it is real easy sometimes to have abstract views of things. It is easy, I suppose, to make snap judgments and quick opinions on a lot of things. But, I think you have been here long enough and you have been reminded of this before, that we are not talking about television, we are not talking about a conversation in the cafe on the street; this is real. And, we have to treat it as such. This is a court of law.
It probably is easy also for some people to say, well, heck, anytime there's a serious crime, you ought to shoot them. Or, anytime there is a serious crime, you ought to lock them up and throw away the key forever. Well, that is not the way the system works, either. And, if this was just real simple, we wouldn't be doing it.
Our law, and I'm rather proud of it, has set some standards that have to be met. And so, in effect, I'm going to ask you to follow those standards. Your judgment and determination is up to you. So, I'm going to try to instruct you a little bit further about the issues here of aggravating circumstances and mitigating circumstances and weighing them to decide what your recommendation is going to be. And, I have already told you before that the burden of proof is on the State to prove the aggravating circumstances beyond a reasonable doubt. Any that they don't prove beyond a reasonable doubt, you don't consider. If you are not reasonably satisfied of the existence of mitigating circumstances, you don't consider that either. But, after you have decided what aggravating circumstances exist under those standards, then you have to weigh them as they impact on your recommendation.
So, let's talk just a moment about what the State contends are aggravating circumstances in this case. Well, they say, in effect, that the defendant was previously convicted of armed robbery or robbery up in Virginia, and they have introduced a certified copy of that conviction. And, I will tell you that a previous conviction of a felony involving the use of threat or violence to a person is one of the statutory aggravating circumstances. And, if they have proved it beyond a reasonable doubt, you may consider that.
They have also told you -- they also insist that the defendant committed this capital offense while he was engaged in or was an accomplice in the commission of or attempt to commit the crime of robbery. And, you heard evidence regarding that. And, if they have proven that to you beyond a reasonable doubt, then you may consider that as an aggravating factor.
The State also contends that this offense was especially heinous, atrocious, or cruel as compared to other capital offenses. I think I need to talk with you about that a little bit.
Because they have used some words -- let me go back to robbery. I have already defined it for you. I defined it for you during the guilt phase. This is the same jury. But you remember that I told you a person commits the crime of robbery in first degree if in the course of committing a theft he uses or threaten [sic] to use the imminent use of force against a person, the owner or the person in possession of the property, with the intent to overcome his physical residence [sic] or physical powder [sic] of resistance, causes serious physical injury or death, as in this case, and is armed with a deadly weapon, a pistol. Same thing I told you before. Just simply want to remind you of it.
Now, let's talk about the third aggravating circumstance that the State claims. They say that this capital offense was especially heinous, atrocious, or cruel as compared to other capital offenses.
Now, the term heinous means extremely wicked or shockingly evil.
The term atrocious means outrageously wicked and violent.
The term cruel means designed to inflict a high degree of pain with utter indifference to or even enjoyment of the suffering of others.
What is intended to be included in this aggravating circumstance are those cases where the actual commission of the capital offense is accompanied by such additional acts, or such additional manifestations on the part of the defendant, to set that crime apart from just the ordinary capital offense.
Now, for a capital offense to be especially cruel it must be conscienceless. Be a conscienceless or pitiless crime, done without conscience, done without pity, which is unnecessarily torturous to the victim. And, I suppose that all of us probably might think that all capital offenses are heinous, atrocious, and cruel to some extend [sic]. Maybe all crimes are cruel. Maybe.
But when we look at this as an aggravating circumstance, what is intended to be covered by these aggravating circumstances are only those cases in which the degree of heinous, atrocious, and cruel exceeds that which would always exist when a capital offense is committed.
Now, as I said torture is the deliberate infliction of pain in a manner calculated to unnecessarily increase the suffering that an individual undergoes. And to constitute torture, the victim must experience and be aware of this magnified pain. It is not enough that the manner of death is despicable. The point is that the victim was deliberately made to undergo, feel, or suffer unconscionable or increased pain.
While it might be said to be cruel, some people might even call it heinous or atrocious, the shot that produced instant death, may be, even if the victim didn't know it was coming, might be less heinous, atrocious, or cruel.
If we did not have those words, every time we had a killing, we would automatically have a death penalty. That's now what the law says. Consider those three.
Consider the fact, if it be a fact, and has been proven by the State, that previously he has been convicted of a crime of violence or that he was engaged in the commission of a robbery when this crime, killing, took place and the cruel heinous and atrocious nature of it.
The State doesn't have to prove all three of them. Any one they don't prove: Don't consider.
Now, let's look over on the other side of the ledger. Most anything, most anything really, should be taken in consideration when it comes to the question of imposing the death penalty. We just do not do it lightly. Death is different.
Certainly, as the defense suggested, you can take into consideration the age of the defendant. You can also take into consideration the fact that, for whatever weight you wish to give it, that he was not the only one involved, if that be a fact and you heard them. You could also, of course, take into consideration the fact of any punishment which the evidence has shown any of the rest of them received. So, most anything could be used or considered by you, if you are reasonably satisfied it is true, with regard to mitigation.
And, then when you get through, you have got to say to yourself what does that mean to me? Don't count the numbers. I have already told you that. Don't count the numbers. See how it weights on you in the scheme of things as to what, considering the very serious nature of the crime and the very serious nature of the punishment, whichever one is imposed, neither one of these are just slaps on the wrist. And, then you weigh it all in the balance and come up with the kind of recommendation that simply puts aside the thoughts that I'm trying to this [sic] for the family, and friends, and the like. That's not the law. Put aside the fact that I'm sort of sympathetic. I don't want to see anybody sit in the electric chair if you consider it. You are not exactly the conscience of this community. You are instrument [sic] of the law, and you have to divorce yourself from the idea that I've got to do what is going to please the District Attorney, or the defense lawyer, or the judge. You don't.
You are the best twelve folks we could find to decide this important issue. Now, we have got two cases here, two counts. You remember count one, murder during a robbery, capital murder; and, count two, another capital murder, murder during use of a deadly weapon with the victim in a vehicle, I'm going to ask you to make a recommendation on both of these counts. You may say that doesn't make a lot of sense. Maybe it doesn't. I'm going to tell you you don't have to make the same recommendation on both of them. You may say that doesn't make sense, either. Be that as it may. I'm going to let you do it. Take these two verdict forms and on each one of them, one and two. And, one of them actually is a recommendation of death and the other is a recommendation of life imprisonment without parole, and it is the same way on both of them.
Now, I have got to once again remind you and so in order to help remind you, all of these forms have only: We the jury by a vote of blank to blank. Every one of them has got that. So, in every instance and each instance -- of course, you can't choose but one on each one of these forms. Whatever you choose, you have got to have the vote to put down there. I'm going to tell you right now, I'm not going to ask you -- I may ask if that's your verdict, like I did the last time. I'm not going to ask you whether this is your verdict. I'm not going to ask any of you how you voted. But if you are going to vote, and you do vote, for the imposition of death, there must be ten of you. Ten to two is the least acceptable number. Eleven to one or twelve to zero would both work. But nothing less than ten to two. And, if you are going to recommend life without parole, you need at least seven. Seven to five would do. Eight to four. And, the fact of the matter is unless you get ten to two for death, you get seven to five for life without parole, that is what your vote [sic]. That is what your verdict should be. But you can discuss it as long as you want to and vote as many times as you want to and consider it as long as you wish until such time as you arrive at the verdict in the manner if you can.
The foreperson, as I have told you before, doesn't have any more vote than anybody else. But, the foreperson, Mr. Pope, is going to get you all started talking about it and at such time as you arrive at verdicts, he can sign to reflect your verdicts, and knock on the door and let my bailiff know that you have reached a verdict, and then I'll bring you in. Just roll it up like you did before and we'll take it.
Now, there's something I have to do. I have to go back here and have just a little word with the attorneys. So, you all sit where you are for a minute, please.[83]

         At that point, the trial judge retired to confer with counsel and the following took place in chambers:

THE COURT: What says the State to the Court's oral charge?
MR. CLARK: State is satisfied.
MR. GOGGANS [sic]: What says the defendant to the court's oral charge?
MR. GOGGANS: We have a couple of things we discussed before on the record. We agree to disagree. I bring those matters forward and anticipate the same ruling.
One other thing I believe you told the jury as to mitigating circumstances that they must be unanimous on those also. I don't think the law read from McKoy v. North Carolina, Supreme Court of the United States, held that NC's capital sentencing scheme, which required jury unanimity as to the existence of a particular mitigating circumstance for purposes of determining whether aggravating circumstances outweighed mitigating circumstances and whether aggravating circumstances were sufficiently substantial when considered with mitigating circumstances to call for a death sentence violated the holding in Mills v. Maryland, that the Eighth Amendment forbids limiting the jurors in a capital sentencing proceeding to a consideration of only those mitigating circumstances they unanimously found to exist. That is my understanding of the law. That is from a brief I wrote in another case.
THE COURT: What do you say to that, Mr. Clark?
MR. CLARK: Judge, that is a United States Supreme Court case. Quite frankly I don't recall what exactly the language is you are supposed to use in instructing them.
THE COURT: I thought the scheme was that they had to be unanimous as to what they would consider and then when, with the State having the burden of proof beyond a reasonable doubt and defense only having reasonable satisfaction, then when they decided what mitigating factors they were going to consider, they weighed them. Not quantitatively but equalitatively [sic]. If that's not the law, maybe I ought to tell them differently. I don't know exactly how to tell them.
MR. GOGGANS: Tell them they don't have to be unanimous on mitigating circumstances.
THE COURT: What do they have to do?
MR. GOGGANS: I think each makes their own individual finding on mitigating. Let [sic] assume for purposes of illustration that we put forward twelve mitigating circumstances. You might have twelve and each of them finds one. They may, although twelve of them are convinced beyond a reasonable doubt, any doubt, that one is established but not the other eleven. Okay. And, my understanding of the law is that on mitigating you [sic] unanimity is not required, only statutory -- statutory aggravating.
THE COURT: Aggravating . . . .
MR. CLARK: Yes, sir.
THE COURT: Twelve -- aggravating -- if you didn't get twelve on any one of them, you wouldn't have aggravating?
MR. GOGGANS: That's correct.
THE COURT: They can consider anything they want to.
MR. GOGGANS: I'm saying they have to find it. But in finding, mitigating does not have to be unanimous.
THE COURT: What does it have to be?
MR. GOGGANS: That is . . . .
THE COURT: One?
MR. GOGGANS: That's my understanding. I may be wrong, but that is my understanding of the law.
THE COURT: Surely, it couldn't be one. You mean each one can decide for himself whether there are mitigating circumstances?
MR. GOGGANS: I think so.
THE COURT: And, then everyone weighs the unanimous against his individual ones?
MR. GOGGANS: That's my understanding.
MR. CLARK: I am sorry, I can't help you with the language, Judge.
THE COURT: Well, I really - - I don't think that is the law, but I sure would hate to be wrong about it, and I don't mind charging them differently. I'm not sure they know the difference anyway.
MR. CLARK: I do understand this somewhat. I am sure Mr. Goggans has a better grasp of the instructional language on mitigation because that's not been my area of preparation. But, I think he's correct in that in general the Court's approach to instructions to the jury on mitigation is basically anything goes.
THE COURT: All right. I'l go back and tell them that.
MR. GOGGANS: You will tell them the mitigating findings do not have to be unanimous?
MR. CLARK: Still have to go through a weighing process.[84]

         The trial judge and counsel then returned to the courtroom, where the following took place:

THE COURT: Let me supplement or, perhaps, correct something I said. I don't know whether I said it inadvertently or not. Be that as it may.
I was talking about trying to decide what aggravating and what mitigating factors exist. And, I said, I'm sure, that you needed to be unanimous in your determination about it. I'll stick with that as far as aggravating circumstances are concerned. But I'll retract, if I said or gave the impression, that you all had to unanimously agree on a mitigating circumstance before you could consider it. I would instruct you that each of you can consider what mitigating circumstances that you have heard and you believe are proven to your satisfaction, and you can factor that into the weighing process as it leads to your ultimate determination of what your ultimate recommendation should be. (WHEREUPON, A SIDE BAR COMMENCES.)
MR. CLARK: Yes, sir.
MR. GOGGANS: Just make clear mitigating doesn't have to be unanimous. We are satisfied with sticking with our other objection. (WHEREUPON, A SIDE BAR CONCLUDES.)
THE COURT: Let me just make it clear: Mitigating doesn't have to be unanimous.
All right. Gather up the exhibits that are to be submitted in connection with this phase. I believe there were two.
All right. Mr. Bice, take the exhibits and jury verdicts. The alternates may go back to their corner.
MR. CLARK: All other evidence should go back as well.
THE COURT: All right. Retire and reach your verdict. (JURY RETIRES TO DELIBERATE.)[85]

         Petitioner did not include any argument in his brief on direct appeal challenging the trial court's jury instructions at the punishment phase of trial. In his sixth ground for relief in his Rule 32 petition, however, Petitioner argued the trial court's punishment phase jury instructions erroneously imposed a burden on the defense to prove the existence of mitigating circumstances to the point the jury was “reasonably satisfied” of the truth of the mitigating factor and instructed the jury it had to unanimously find a mitigating circumstance existed before that circumstance could be weighed against the aggravating circumstances.[86] In its Order issued January 6, 2003, the state trial court ruled the foregoing arguments procedurally barred under Rules 32.2(a)(3) and 32.2(a)(5) of the Alabama Rules of Criminal Procedure based upon Petitioner's failure to raise these complaints at trial and on direct appeal.[87]

         On appeal from the denial of Petitioner's Rule 32 petition, the Alabama Court of Criminal Appeals held (1) the trial court erroneously dismissed Petitioner's complaint about the trial court's unanimity instruction regarding mitigating evidence under Rule 32(a)(3), but (2) the trial court correctly dismissed Petitioner's complaint about the trial court's erroneous unanimity instruction pursuant to Rule 32(a)(5) based on Petitioner's failure to raise that claim on direct appeal, and (3) Petitioner waived his complaint about the trial court's imposition of an erroneous burden of proof on the jury's consideration of mitigating evidence by failing to raise that complaint in Petitioner's brief appealing the Circuit Court's denial of his Rule 32 petition.[88]

         2. Clearly Established Federal Law

         The Supreme Court has established the constitutional standard for evaluating the propriety of a jury instruction at the punishment phase of a capital murder trial as “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380 (1990). The Supreme Court has consistently applied this standard to evaluate challenges to punishment-phase jury instructions. See Weeks v. Angelone, 528 U.S. 225, 226 (2000) (emphasizing the Boyde test requires a showing of a reasonable likelihood, as opposed to a mere possibility, the jury construed the jury instructions to preclude its consideration of relevant mitigating evidence); Jones v. United States, 527 U.S. 373, 390 & n.9 (1999) (holding the same); Calderon v. Coleman, 525 U.S. 141, 146 (1998) (holding the same); Buchanan v. Angelone, 522 U.S. 269, 276 (1998) (holding the same); Johnson v. Texas, 509 U.S. 350, 367 (1993) (holding Boyde requires a showing of a reasonable likelihood the jury interpreted the jury instructions so as to preclude it from considering relevant mitigating evidence).

         This “reasonable likelihood” standard does not require the petitioner to prove the jury “more likely than not” interpreted the challenged instruction in an impermissible way; however, the petitioner must demonstrate more than "only a possibility" of an impermissible interpretation. Johnson v. Texas, 509 U.S. at 367; Boyde v. California, 494 U.S. at 380. This Court must analyze the challenged language included in the jury charge within the context of the overall jury charge. Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). “In evaluating the instructions, we do not engage in a technical parsing of this language of the instructions, but instead approach the instructions in the same way that the jury would--with a ‘commonsense understanding of the instructions in the light of all that has taken place at the trial.'” Johnson v. Texas, 509 U.S. at 368; Boyde v. California, 494 U.S. at 381.

         3. De Novo Review

         Because the state trial and appellate courts disposed of Petitioner's complaints of allegedly erroneous punishment phase jury instructions on procedural grounds, without addressing the merits of those claims, this court's review of Petitioner's federal constitutional claims is de novo.[89] See Porter v. McCollum, 558 U.S. 30, 39 (2009) (holding de novo review of the allegedly deficient performance of petitioner's trial counsel was necessary because the state courts failed to address this prong of the Strickland analysis); Rompilla v. Beard, 545 U.S. 374, 390 (2005) (holding de novo review of the prejudice prong of Strickland was required where the state courts rested their rejection of an ineffective assistance claim on the deficient performance prong and never addressed the issue of prejudice).

         a. Burden of Proof

         The state trial court erred under state law when it failed to instruct the jury at the punishment phase of Petitioner's capital murder trial in a manner consistent with Alabama Code §13A-5-45(g):

The defendant shall be allowed to offer any mitigating circumstance defined in Sections 13A-5-51 and 13A-5-52. When the factual existence of an offered mitigating circumstance is in dispute, the defendant shall have the burden of interjecting the issue, but once it is interjected the state shall have the burden of disproving the factual existence of that circumstance by a preponderance of the evidence.

         It is well-settled, however, that a jury instruction that is defective under state law does not furnish a basis for federal habeas corpus relief unless the alleged errors were so critical or important to the outcome of the trial to render the entire trial fundamentally unfair. Tejada v. Dugger, 941 F.2d 1551, 1560 (11th Cir. 1991) (quoting Carrizales v. Wainwright, 699 F.2d 1053, 1054 (11th Cir. 1983)), cert. denied sub nom Tejada v. Singletary, 502 U.S. 1105 (1992). A jury instruction that was allegedly incorrect under state law is not a basis for habeas relief because federal habeas review is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States. Estelle v. McGuire, 502 U.S. 62, 68-72 (1991); Jamerson v. Sec'y for Dep't of Corr., 410 F.3d 682, 688 (11th Cir. 2009). Unlike state appellate courts, federal courts on habeas review are constrained to determine only whether the challenged instruction, viewed in the context of both the entire charge and the trial record, “so infected the entire trial that the resulting conviction violated due process.” Estelle v. McGuire, 502 U.S. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)); Jamerson v. Sec'y for Dep't of Corr., 410 F.3d at 688.

         The state trial court's erroneous use of the term “reasonably satisfied” to instruct Petitioner's jury on the burden of proof applicable to a mitigating circumstance did not render the punishment phase of Petitioner's capital murder trial fundamentally unfair. There was no factual dispute as to the existence of the mitigating circumstances identified by either the trial court in its punishment phase jury instructions[90] or Petitioner's trial counsel during closing jury argument.[91] During the guilt-innocence phase of Petitioner's trial, a law enforcement officer testified without contradiction that Petitioner was eighteen years of age on the date Petitioner gave his post-arrest statement.[92] Without objection, Petitioner's trial counsel admitted into evidence at the punishment phase of trial a certified copy of Petitioner's birth certificate.[93] Petitioner's accomplice testified without contradiction at the guilt-innocence phase of trial that he pleaded guilty to a charge of murder and received a sentence of life imprisonment with the possibility of parole for his involvement in Julie Rhodes's murder.[94] The prosecutor responded to Petitioner's trial counsel's closing argument by emphasizing, as Petitioner's own trial counsel had acknowledged, that Julie Rhodes was only nineteen years old at the time of her death but he did not challenge the factual accuracy of anything Petitioner's trial counsel had argued as the basis for a finding of a mitigating circumstance.[95] In fact, the prosecution's closing argument included no effort to challenge the factual accuracy of anything Petitioner's trial counsel argued at the punishment phase of trial.

         Thus, there was no genuine factual dispute at the punishment phase of Petitioner's capital murder trial over the existence of mitigating circumstances showing that Petitioner was only eighteen years old at the time of the offense, others were involved in the same offense, and one of Petitioner's co-defendants had received a sentence of life imprisonment with the possibility of parole. The trial court instructed the jury it could consider each of those mitigating factors.[96] Under these circumstances, the state trial court's erroneous use of the term “reasonably satisfied” in relation to “mitigating circumstances” in the punishment phase jury instructions did not render the punishment phase of Petitioner's capital murder trial fundamentally unfair. Nor is there a reasonable likelihood that the jury applied the erroneous punishment phase jury instructions in a way that prevented the jury's consideration of constitutionally relevant evidence. Boyde v. California, 494 U.S. at 380.

         b. Unanimity

         The state trial court's instructions informing the jury that it could only consider those mitigating circumstances which it unanimously concluded had been established by the evidence were inconsistent with the Supreme Court's holding in Mills v. Maryland, 486 U.S. 367 (1988). In Mills, the Supreme Court rejected a capital sentencing system in a weighing jurisdiction in which the jury was informed, both through the trial court's jury instructions as well as the verdict form, that it could not consider a mitigating circumstance or even particular mitigating evidence unless the jury unanimously agreed upon the existence of that particular mitigating circumstance:

there is a substantial probability that reasonable jurors, upon receiving the judge's instructions in this case, and in attempting to complete the verdict form as instructed, well may have thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance. Under our cases, the sentencer must be permitted to consider all mitigating evidence. The possibility that a single juror could block such consideration, and consequently require the jury to impose the death penalty, is one we dare not risk.

Mills v. Maryland, 486 U.S. at 384. Had the trial court's punishment phase jury instructions not been corrected, a constitutional error would have occurred.

         As explained above in Section IV.C.1., however, immediately after the trial court gave the erroneous instruction in question, Petitioner's trial counsel called the trial court's attention to the constitutional error and requested a corrective instruction consistent with the holding in Mills. The prosecutor agreed the trial court's instruction was inconsistent with the Supreme Court's holding in Mills and the underlying theme of Supreme Court opinions suggesting that, when it comes to mitigating evidence, “anything goes.”[97] The trial court then informed the jury that the jury's consideration of mitigating circumstances need not be unanimous. When Petitioner's trial counsel requested further clarification, the trial court instructed the jury “Let me just make it clear: Mitigating doesn't have to be unanimous.”[98] Petitioner's trial counsel requested no further clarification. Nothing in the prosecutor's closing punishment phase jury argument or the punishment phase verdict form suggested the jury could not consider a mitigating circumstance unless it concluded unanimously that the mitigating circumstance existed. Nor did the prosecutor argue Petitioner had failed to establish the factual predicate for any of the mitigating circumstances urged by Petitioner's trial counsel in his closing argument or identified by the trial court in its jury instructions.

         Petitioner argues the trial court's attempts at correcting its erroneous statements regarding the need for a unanimous determination of the existence of mitigating circumstances were confusing and ambiguous. While admittedly less than pristine, the state trial court's remedial instructions were sufficient to alert the jury to the fact the jury need not unanimously agree upon a particular mitigating circumstance before weighing that mitigating circumstance against the aggravating circumstances established by the evidence. “In evaluating the instructions, we do not engage in a technical parsing of this language of the instructions, but instead approach the instructions in the same way that the jury would--with a ‘commonsense understanding of the instructions in the light of all that has taken place at the trial.'” Johnson v. Texas, 509 U.S. at 368; Boyde v. California, 494 U.S. at 381.

         As explained above, the three mitigating circumstances of Petitioner's age, the participation of others, and the sentence of a co-defendant were established by overwhelming, uncontroverted, uncontested evidence. Petitioner identifies no other mitigating circumstances properly before the jury at the punishment phase of his capital murder trial that he believes his jury was unable to consider adequately in light of the allegedly defective punishment phase jury instructions. Under such circumstances, there is no reasonable likelihood the jury applied the challenged instruction in a way that prevented the jury's consideration of constitutionally relevant evidence. Boyde v. California, 494 U.S. at 380.

         4. Conclusions

         After conducting an independent, de novo review, Petitioner's complaints about the defects in his punishment phase jury instructions do not warrant federal habeas corpus relief. Paragraphs 201 and 202 of Petitioner's federal habeas corpus petition do not warrant federal habeas relief.

         D. Finding Petitioner's Offense Especially Heinous, Atrocious, or Cruel

         1. State Court Disposition

         In its Sentencing Order issued January 14, 1997, the Circuit Court concluded Petitioner's capital offense was “especially heinous, atrocious or cruel compared to other capital offenses, ” in part because (1) Petitioner had an apparent fascination with his weapon and stated he would use it to shoot someone, (2) Petitioner “had no moral compunction against killing a stranger to get his way, and prove to his companions that he could accomplish his stated goal, regardless of the consequences, ” (3) Petitioner committed the murder without conscience and without pity, (4) for a period of time, Petitioner appeared to be exhilarated by the crime, (5) one of the gunshots that struck Julie Rhodes struck her in the face, entered her neck, exited through the side of her shoulder, and still had enough force to make a bullet hole in the driver-side window, (6) Julie was also shot in the back, with that bullet penetrating her liver, exiting her abdomen, and lodging in her leg, (7) Julie's injuries were painful and caused profuse bleeding, (8) Petitioner dumped her in the street and left her there, (9) Julie experienced significant pain of which she was acutely aware, (10) she was acutely aware she had been assaulted by a deadly weapon, (11) she screamed for help, (12) at the scene and during her transport to the hospital, she knew and expressed the fear that she was about to die, (13) her torment lasted a significant amount of time, (14) while Petitioner may not have intentionally caused Julie's emotional suffering and mental distress, Petitioner deliberately did the acts which caused them as a natural and probable consequence of his actions, (15) this is not a case in which the victim was murdered swiftly without awareness of the circumstances that would lead to her death, (16) Petitioner acted without regard to the consequences of his action to the victim, consciously and pitilessly, and (17) the victim suffered torture, fear, and pain.[99]

         In his third ground for relief on direct appeal, Petitioner argued the trial court erred in finding at the punishment phase of trial that Petitioner's offense was heinous, atrocious, or cruel.[100] The Alabama Court of Criminal Appeals rejected this claim on the merits:

The facts of this case reveal that the victim suffered extreme physical and mental pain for approximately four and one-half hours before her death. The victim begged the appellant not to shoot her. After being shot at close range in the face, the victim turned, and he shot her again in the back.[101] The appellant then pushed the victim from her car and she managed to get to some nearby houses, she was screaming for help. She was discovered lying facedown in a crawling position, bleeding profusely, and covered in leaves. In her agony, the victim told medical personnel that she knew she was dying.
In Ex parte Kyzer, this Court held that the standard applicable to the “especially heinous, atrocious, or cruel” aggravating circumstance under § 13A-5-49(8), Ala. Code 1975, is that the crime must be one of “those conscienceless or pitiless homicides which are unnecessarily torturous to the victim.” The appellant's assertion that the murder was not unnecessarily torturous to the victim because he did not intentionally inflict prolonged pain upon the victim is without merit. It is not, as the appellant argues, incumbent upon the State to prove that he inflicted savagery or brutality upon the victim, or that he took pleasure in having committed the murder. It is necessary that the State present evidence that the victim suffered some type of physical violence beyond that necessary or sufficient to cause death. Additionally, to support this aggravating factor, the time between at least some of the injurious acts must be an appreciable lapse of time, sufficient enough to cause prolonged suffering and the victim must be conscious or aware when at least some of the additional or repeated violence is inflicted.

Barksdale v. State, 788 So.2d at 907-08 (Citations omitted and Footnote added). The Alabama Supreme Court denied certiorari. Ex parte Tony Barksdale, 788 So.2d at 915.

         2. Clearly Established Federal Law

         There is no “clearly established” federal constitutional authority mandating state appellate review of the evidentiary sufficiency underlying a capital sentencing jury's (or capital sentencing court's) consideration and weighing of aggravating factors beyond the Supreme Court's holding in Jackson v. Virginia, 443 U.S. 307 (1979). See Lewis v. Jeffers, 497 U.S. 764, 781-84 (1990) (“in determining whether a state court's application of its constitutionally adequate aggravating circumstance was so erroneous as to raise an independent due process or Eighth Amendment violation, we think the more appropriate standard of review is the ‘rational factfinder' standard established in Jackson v. Virginia.” (Citation omitted)). In Jackson, the Supreme Court declared the proper standard for evaluating the sufficiency of the evidence to support a criminal conviction is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Lewis v. Jeffers, 497 U.S. at 781 (quoting Jackson v. Virginia, 443 U.S. at 319).

These considerations apply with equal force to federal habeas review of a state court's finding of aggravating circumstances. Although aggravating circumstances are not “elements” of any offense, the standard of federal review for determining whether a state court has violated the Fourteenth Amendment's guarantee against wholly arbitrary deprivations of liberty is equally applicable in safeguarding the Eighth Amendment's bedrock guarantee against the arbitrary or capricious imposition of the death penalty. Like findings of fact, state court findings of aggravating circumstances often require a sentencer to “resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'

Lewis v. Jeffers, 497 U.S. at 782 (quoting Jackson v. Virginia, 443 U.S. at 319).

Moreover, a federal court should adhere to the Jackson standard even when reviewing the decision of a state appellate court that has independently reviewed the evidence, for the underlying question remains the same. If a State's aggravating circumstances adequately perform their constitutional function, then a state court's application of those circumstances raises, apart from due process and Eighth Amendment concerns, only a question of the proper application of state law. A state court's finding of an aggravating circumstance in a particular case-including a de novo finding by an appellate court that a particular offense is “especially heinous . . . or depraved” -- is arbitrary or capricious if and only if no reasonable sentencer could have so concluded.

Id., at 783.

         3. AEDPA Review

         Insofar as Petitioner's claim attacks the state appellate court's application of state law, this claim fails to furnish a basis for federal habeas corpus relief. See Estelle v. McGuire, 502 U.S. at 67-68 (federal habeas relief does not lie for errors of state law and it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions). State court rulings on matters such as the requirements of state case law bind a federal court in habeas corpus proceedings. See Bradshaw v. Richey, 546 U.S. at 76 (“We have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”); Loggins v. Thomas, 654 F.3d at 1228 (“Alabama law is what the Alabama courts hold that it is.”). Thus, insofar as Petitioner argues the state appellate court erroneously construed or applied state law in affirming the Circuit Court's Sentencing Order finding that Petitioner's capital offense was especially heinous, atrocious, or cruel, Petitioner's argument furnishes no basis for federal habeas relief.

         Viewed in the light most favorable to the prosecution, the evidence at Petitioner's capital murder trial established that (1) Petitioner convinced Julie Rhodes to give him and his two companions a ride on a December evening, [102] (2) Petitioner directed Julie to a relatively quiet neighborhood, [103] (3) Julie complied in all respects with Petitioner's directives, [104] (4) when Petitioner displayed the handgun he was carrying and called her “Bitch, ” Julie begged him not to shoot her, [105] (5) Petitioner never instructed, directed, or asked Julie to exit her vehicle before he shot her the first time, [106] (6) Petitioner never gave Julie a reasonable opportunity to exit her vehicle before he shot her the second time, [107] (7) Petitioner fatally shot Julie Rhodes twice while she was inside her vehicle and while he was in the course of committing or attempting to commit the robbery of Julie's vehicle from her, [108] (8) one of the 9 mm bullets Petitioner fired broke Julie's jaw, broke her incisors, penetrated her neck (where it damaged her larynx and jugular vein and caused a hematoma), exited her neck, entered her shoulder, exited her shoulder, and broke the driver's side front window of her vehicle, [109] (9) the other 9 mm bullet Petitioner fired entered Julie's back, broke a rib, perforated and all but eviscerated her liver, exited her abdominal wall, passed through her left thigh, and lodged in her left calf, [110] (10) severely wounded, Julie exited her vehicle and Petitioner pushed her away from the vehicle, [111] (11) Julie made her way to nearby houses, screaming for help and pounding on the doors of multiple houses, leaving blood stains along her path, [112] (12) the people who responded to her cries for help found Julie bleeding profusely and covered in leaves on the front porch of a house, [113] (13) Julie was still sufficiently conscious to advise those persons that she had been shot by a black man and to express her awareness that she was dying, [114] and (14) despite her blood loss and the onset of shock, Julie repeated her assessment that she was dying to the two paramedics who arrived to transport her to the hospital and to one of the surgeons who treated her at the hospital in Alexander City.[115]

         Alabama law defines “especially heinous, atrocious, or cruel” as encompassing those “conscienceless or pitiless homicides which are unnecessarily torturous to the victim.” Ex parte Key, 891 So.2d 384, 389 (Ala.) (quoting Ex parte Kyzer, 399 So. 330, 334 (Ala. 1981)), cert. denied, 543 U.S. 1005 (2004).

         Judged by any rational standard, Julie Rhodes's death was extremely painful physically (her injuries included a fractured jaw, broken teeth, a fractured rib, ruptured liver, damaged larynx and jugular vein, a neck hematoma, and bullet wounds in her jaw, neck, shoulder, back, abdomen, left thigh and left calf).[116] The injuries Petitioner inflicted upon her were equally traumatic emotionally: she was fully aware of her impending demise throughout the time it took emergency medical personnel to arrive at the scene and transport her to the hospital where, upon reaching the emergency room and prior to being intubated, she told one of her surgeons she knew she was dying.[117] The jury and trial judge could rationally have concluded the evidence established beyond a reasonable doubt that Julie's death was “unnecessarily torturous, ” i.e., involved prolonged suffering, which took place while she was fully aware of her dire circumstances.

         The circumstances of Petitioner's fatal shooting of Julie demonstrated his utter disregard for her life and the pain he inflicted upon her. While Petitioner told an acquaintance that his gun accidentally went off while he was shaking it in Julie's face in an effort to get her out of the vehicle, Petitioner did not tell the same friend that he ever gave Julie a reasonable opportunity to exit her vehicle before his gun went off the first time, possibly in her face.[118] Nor did Petitioner offer his friend or the law enforcement officer to whom Petitioner later gave his tape-recorded statement any rational explanation as to why he fired a second shot at Julie from a completely different angle after the first, allegedly accidental, misfiring of his handgun. A prosecution witness who heard a pair of shots fired in the relevant neighborhood on the evening in question testified the second shot did not immediately follow the first.[119] Petitioner offered his acquaintances who questioned him after the shooting no rational explanation for his failure to either remove Julie from her vehicle without resort to shooting her or to take her to the hospital after he shot her. Petitioner told another acquaintance he had shot a girl but did not know if he had killed her.[120] Not until Petitioner and his companions returned to Guntersville did Petitioner first claim his shooting of Julie Rhodes was accidental.[121] For these reasons, the state trial judge could reasonably have concluded the evidence established beyond a reasonable doubt that Petitioner's fatal shooting of Julie Rhodes was “conscienceless and pitiless.”

         4. Conclusions

         Viewed in the light most favorable to the prosecution, the evidence at Petitioner's trial fully supported the trial judge's conclusion that Petitioner's capital offense was “especially heinous, atrocious, or cruel compared to other capital offenses.” The state appellate court's rejection on the merits of Petitioner's challenge to the trial judge's finding that Petitioner's capital offense was heinous, atrocious, or cruel was neither contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's trial. Paragraphs 203-05 in Petitioner's federal habeas corpus petition do not warrant federal habeas relief.

         E. Failing to Consider Petitioner's Age as a Mitigating Circumstance

         1. State Court Disposition

         The fact that Petitioner was eighteen years of age on the date of his capital offense is not subject to rational dispute. The state trial court instructed the jury at the punishment phase of trial that it could consider Petitioner's age as a mitigating factor to be weighed against the aggravating factors identified by the prosecution.[122]In his Sentencing Order, the trial judge addressed the Petitioner's age as a mitigating factor in the following manner:

7. The age of the defendant at the time of the crime. The defendant was nineteen [sic] years of age. He was a wise and experienced nineteen [sic] year old person, who exhibited all the traits of a person who influenced others, had had some worldly experience, and had been out on his own. There is nothing significant about his age that indicates that he had led a very sheltered life, or that he was not acquainted with the ways of the world. A consideration of the acquaintances he made and the lifestyle he led, together with the fact that two years earlier he had been involved in a serious felony, convinces this Court that age is not a real factor.
8. At the sentencing phase before the jury, the defendant offered nothing in particular regarding anything other than the available statutory factors. At the pre-sentencing hearing before the Court, the defendant offered nothing other than these factors, including the pre-sentence investigation report. Nevertheless, the Court has considered everything available to the Court in making this determination. Defendant was reared by parents who were either divorced or separated, with the defendant living variously with one or the other. When he was with his father, he moved from place to place. He apparently had a good relationship with his family and reports no adverse events during his adolescent years. He received some schooling, mostly in Virginia. He has a GED equivalent. There is nothing especially remarkable about his background. There is nothing to indicate to this Court that he is not a person based on background and experience that would not know right from wrong at the age of nineteen [sic]. Age should not mitigate this crime.[123]

         In his fourth claim in his brief on direct appeal, citing only to § 13A-5-51 of the Alabama Code, Petitioner argued the trial court failed to give Petitioner's age sufficient consideration as a mitigating factor and erroneously found the aggravating circumstances substantially outweighed the mitigating circumstances.[124] The Alabama Court of Criminal Appeals rejected these arguments on the merits and found (1) Petitioner failed to raise a timely objection on this basis at trial, (2) the record indicated the trial court fully considered all of the Petitioner's proffered mitigating evidence in determining the existence of statutory or non-statutory mitigating circumstances, (3) the trial court allowed Petitioner to introduce evidence of his age in mitigation and instructed the jury that it could consider age as a mitigating factor, and (4) the trial court “considered age as a mitigating factor and, in its discretion, properly found it was not a mitigating factor.” Barksdale v. State, 788 So.2d at 908 (quoting the language from the trial court's Sentencing Order set forth above).

         Petitioner urged a slightly more elaborate version of the same claim as his eleventh ground for relief in his Rule 32 petition.[125] In its Order issued January 6, 2003, the Circuit Court summarily dismissed this claim on the basis it had been raised on appeal.[126] In its Memorandum issued August 24, 2007 affirming the trial court's denial of Petitioner's Rule 32 petition, the Alabama Court of Criminal Appeals noted that while Petitioner raised this claim in his Rule 32 petition, he did not include the same argument in his brief on appeal and, thereby abandoned this claim.[127]

         2. Clearly Established Federal Law

         A plurality of the Supreme Court held in Lockett v. Ohio, 438 U.S. 586, 604 (1978), that the Eighth and Fourteenth Amendments require that a capital sentencer ordinarily not be precluded from considering as a mitigating factor any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence of less than death. In Eddings v. Oklahoma, 455 U.S. 104, 114-16 (1982), the Supreme Court applied its holding in Lockett to conclude that a sentencer may not refuse to consider, as a matter of law, any relevant mitigating evidence, including the defendant's youth at the time of the offense and the defendant's “violent background.”

         3. AEDPA Review

         The Alabama capital sentencing statute identifies the age of a defendant as a statutory mitigating factor. Ala. Code § 13A-5-51(7). Contrary to the Petitioner's arguments in his Rule 32 petition, the state trial judge did instruct the jury on age as a mitigating factor and did not “refuse” or “fail” to consider Petitioner's youth as a mitigating circumstance in his sentencing decision. Rather, as the Alabama Court of Criminal Appeals correctly noted in its opinion affirming Petitioner's conviction and sentence on direct appeal, it is clear the trial court considered Petitioner's age as a mitigating circumstance but determined, in light of Petitioner's background and the aggravating circumstances in Petitioner's capital offense, that Petitioner's youth did not carry much weight as a mitigating factor and did not mandate the imposition of a life sentence.

         The trial judge's Sentencing Order was the antithesis of a “refusal” or “failure” to consider the Petitioner's age as a mitigating circumstance. In his Sentencing Order, the trial judge took great pains to explain why, in view of the Petitioner's background (as set forth in Petitioner's pre-sentence report) and the context of Petitioner's capital offense, the Petitioner's youth did not carry much weight as a mitigating circumstance. The trial judge's Sentencing Order may have used in-artful language (i.e., “age is not a real factor”). The Alabama Court of Criminal Appeals' opinion affirming Petitioner's sentence may have been equally ambiguous (i.e., “the trial court considered age as a mitigating factor and, in its discretion, properly found it was not a mitigating factor”). The word choices in the Sentencing Order and appellate opinion do not alter the fact the state trial court expressly considered Petitioner‘s youth as a mitigating factor but determined (in light of the evidence presented at trial and the information about Petitioner's background contained in Petitioner's pre-sentence report) that Petitioner's youth at the time of his capital offense did not justify a life sentence. Upon de novo review, the trial judge's Sentencing Order was wholly consistent with the Supreme Court's holdings in Lockett and Eddings.

         4. Conclusions

         Petitioner's argument that the state trial court failed to instruct the jury that it could consider Petitioner's age as a mitigating factor is factually inaccurate, conclusively refuted by the record, and potentially a violation of Rule 11(b)(3), Fed.R.Civ.P. The Alabama appellate court's rejection on the merits during Petitioner's direct appeal of Petitioner's complaint about the state trial court's alleged failure or refusal to consider Petitioner's age as a mitigating circumstance was neither contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial and direct appeal proceedings. Paragraphs 206-07 of Petitioner's federal habeas corpus petition do not warrant federal habeas corpus relief.

         F. Alabama's Method of Execution

         1. State Court Disposition

         On December 12, 1996, Petitioner filed a post-trial motion seeking to prohibit the imposition of a sentence of death in which he argued that the sentencing jury's recommendation was not binding on the trial court and Alabama's capital sentencing scheme, which permitted a trial court to override a jury's recommendation, violated equal protection principles.[128] Nothing in that motion attacked the method of execution then employed by the State of Alabama. Despite that fact, Petitioner's fifth ground for relief in his direct appeal brief cited the sentencing court's implicit denial of this motion and argued Alabama's method of execution (electrocution) violated the Eighth Amendment's prohibition against cruel and unusual punishment.[129] The Alabama Court of Criminal Appeals rejected this argument on the merits. Barksdale v. State, 788 So.2d at 908-09.

         2. Clearly Established Federal Law

         In In re Kemmler, 136 U.S. 436, 446-49 (1890), the United States Supreme Court denied federal habeas corpus relief and upheld electrocution as a method of execution in an Eighth Amendment challenge to the State of New York's adoption of electrocution as a means of executing an inmate convicted of murder in the first degree. In 2015, the United States Supreme Court upheld, against an Eighth Amendment challenge, the exact same three-drug lethal injection execution protocol authorized under current Alabama law. See Glossip v. Gross, 135 S.Ct. 2726, 2737-38 (2015) (holding a condemned prisoner challenging a lethal injection protocol must establish that “the State's lethal injection protocol creates a demonstrated risk of severe pain [and] must show that the risk is substantial when compared to the known and available alternatives” (quoting Baze v. Rees, 553 U.S. 35, 61 (2008).[130]

         3. AEDPA Review

         Petitioner identifies no Supreme Court opinion striking down as a violation of the Eighth Amendment's prohibition against cruel or unusual punishments any of the methods of execution currently authorized by Alabama law. This court's independent research has identified no such legal authority. Petitioner has alleged no specific facts showing that either any method of execution currently authorized by Alabama law creates a demonstrated risk of severe pain or the risk is substantial when compared to the known and available alternatives. Allegations in a federal habeas corpus petition must be factual and specific, not conclusory. Harris v. Commn'r, Ala. Dep't of Corr., 874 F.3d 682, 691 (11th Cir. 2017), cert. denied, 2018 WL 1509511 (May 29, 2018); Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1061 (11th Cir. 2011), cert. denied, 565 U.S. 1120 (2012).

         4. Conclusions

         The Alabama appellate court's rejection on the merits during Petitioner's direct appeal of Petitioner's Eighth Amendment challenge to the State of Alabama's method of execution was neither contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial and direct appeal proceedings. Paragraph 208 of Petitioner's federal habeas corpus petition does not warrant habeas corpus relief.

         G. Equal Protection Challenges to Alabama's Capital Sentencing Scheme

         1. State Court Disposition

         Petitioner's post-trial motion seeking to prohibit the imposition of a sentence of death attacked the judicial override aspect of Alabama's capital sentencing scheme as a violation of Equal Protection principles.[131] On direct appeal, Petitioner's fifth ground for relief argued Alabama's judicial override provision effectively prevented uniform state appellate review of the imposition of death sentences.[132] The Alabama Court of Criminal Appeals rejected this argument on the merits, finding Petitioner's Equal Protection argument unsubstantiated by any allegation of purposeful discrimination. Barksdale v. State, 788 So.2d at 909.

         In his tenth claim for relief in his Rule 32 petition, Petitioner argued his conviction and death sentence were the products of racial bias because his two co-defendants were white and were offered deals by the state to testify against Petitioner, while Petitioner was never asked if he possessed information regarding the guilt of his co-defendants.[133] The trial court held this complaint was procedurally barred because it could have been but was not raised on direct appeal.[134] The Alabama Court of Criminal Appeals pointed out Petitioner failed to challenge on appeal the trial court's summary dismissal of this claim.[135]

         2. Clearly Established Federal Law

         A defendant who alleges an equal protection violation has the burden of proving the existence of purposeful discrimination and that the purposeful discrimination had a discriminatory effect on him. McCleskey v. Kemp, 481 U.S. 279, 292 (1987). Thus, to prevail under the Equal Protection Clause, a criminal defendant must prove that the decision-makers in his case acted with discriminatory purpose. Id.

         3. AEDPA & De Novo Review

         “To demonstrate an equal protection claim, a prisoner must demonstrate that he is similarly situated to other prisoners who received more favorable treatment and the state engaged in invidious discrimination against him based on race, religion, national origin, or some other constitutionally protected basis.” Sweet v. Sec'y, Dep't of Corr., 467 F.3d 1311, 1318-19 (11th Cir. 2006), cert. denied, 550 U.S. 922 (2007). Like Sweet, Petitioner's equal protection claim fails because he has not shown that he was treated differently from other, similarly situated prisoners.[136]Like McCleskey, Petitioner offers no evidence and no facts specific to his own case that would support an inference that racial considerations played a part in his sentence. The fact that Petitioner is black and Julie Rhodes is white, standing alone, does not establish either purposeful discrimination by Petitioner's jury or sentencing judge or different treatment of Petitioner from other, similarly situated prisoners. The sentencing judge accepted the jury's 11-1 recommendation in favor of a sentence of death; thus, Petitioner's complaints about allegedly inconsistent application of the judicial override provision of Alabama's former capital sentencing statute have no application to his case.[137] Petitioner alleges no facts showing the existence of purposeful discrimination or that the purposeful discrimination had a discriminatory effect on him. Allegations in a federal habeas corpus petition must be factual and specific, not conclusory. Harris v. Commn'r, Ala. Dep't of Corr., 874 F.3d at 691; Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d at 1061.

         4. Conclusions

         The Alabama appellate court's rejection on the merits during Petitioner's direct appeal of Petitioner's conclusory Equal Protection challenge to the State of Alabama's capital sentencing scheme was neither contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial and direct appeal proceedings. Upon independent, de novo, review there is no arguable merit to the conclusory equal protection claim contained in Petitioner's tenth claim in his Rule 32 petition. Paragraphs 209-10 of Petitioner's federal habeas corpus petition are without arguable legal or factual support, do not warrant federal habeas corpus relief, and potentially violate Rule 11(b)(1), (b)(2), & (b)(3), Fed.R.Civ.P.

         H. Double Jeopardy Claim

         1. State Court Disposition

         In his sixth ground for relief on direct appeal, Petitioner argued his indictment was “fatally defective” because it was duplicitous, multiplicitous, and allowed the State to present different theories of capital murder when there was actually only one theory to sustain a capital murder verdict, in violation of the Double Jeopardy principles announced by the Supreme Court in United States v. Dixon, 509 U.S. 699 (1993), and Blockburger v. United States, 284 U.S. 299 (1932).[138] The Alabama Court of Criminal Appeals rejected this argument on the merits after concluding Petitioner had been convicted of two counts of capital murder that each charged him with the intentional killing of Julie Rhodes but under separate theories that contained elements not contained in the other. Barksdale v. State, 788 So.2d at 910.

         2. Clearly Established Federal Law

         The Double Jeopardy Clause of the Fifth Amendment states that no person shall be “subject to the same offense to be twice put in jeopardy of life or limb”; it protects against successive prosecutions for the same offense after acquittal or conviction and against multiple criminal punishments for the same offense. See Bravo-Fernandez v. United States, 137 S.Ct. 352, 357-58, 363 (2016) (the Double Jeopardy Clause does not bar retrial after a jury returned irreconcilably inconsistent verdicts of conviction and acquittal and the convictions were later vacated for legal error unrelated to the inconsistency); Monge v. California, 524 U.S. 721, 727-28, 734 (1998) (the Double Jeopardy Clause does not preclude retrial on a prior conviction allegation in a noncapital sentencing context); Hudson v. United States, 522 U.S. 93, 99 (1997) (the Double Jeopardy Clause protects against multiple criminal punishments for the same offense); Schiro v. Farley, 510 U.S. 222, 229 (1994) (the Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense). The Clause guarantees that the State shall not be permitted to make repeated attempts to convict the accused, thereby subjecting him to the embarrassment, expense, and ordeal of multiple trials and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. Blueford v. Arkansas, 566 U.S. 599, 605 (2012); Schiro v. Farley, 510 U.S. at 229-30. Where, however, there is no threat of either multiple punishment or successive prosecutions, the Double Jeopardy Clause is not offended. Schiro v. Farley, 510 U.S. at 230; United States v. Wilson, 420 U.S. 332, 344 (1975).

         3. AEDPA Analysis

         The short answers to Petitioner's Double Jeopardy argument are (1) Petitioner was subjected to neither multiple nor successive prosecutions for the same offense, i.e., Petitioner was tried only once for the capital murder of Julie Rhodes, and (2) there was only one criminal punishment imposed upon him, i.e, , despite the wording of the Petitioner's Sentencing Order there is no allegation before this court that the State of Alabama plans to execute Petitioner more than once.[139] Petitioner's single trial for capital murder did not violate any of the principles underlying the Double Jeopardy Clause discussed by the Supreme Court in Blueford. Thus, the prohibitions of the Double Jeopardy Clause simply have no application to Petitioner's capital murder trial, conviction, and sentence of death.[140] Contrary to the arguments underlying Petitioner's Double Jeopardy Claim, the rule of statutory construction applied in Blockburger does not preclude the imposition of multiple punishments in a single trial where separate and distinct statutes authorize such multiple punishments. See Missouri v. Hunter, 459 U.S. 359, 368 (1983) (”[S]imply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes.”).

         In the course of Petitioner's direct appeal, both Petitioner and the Alabama Court of Criminal Appeals focused their respective arguments and analyses on the issue of whether Petitioner's indictment, trial, and convictions under multiple factual theories of capital murder violated the rule announced by the Supreme Court in Blockburger v. United States. The problem with Petitioner's Blockburger argument, and the Alabama Court of Criminal Appeals' Blockburger analysis, is that the Supreme Court's holding in Blockburger has no application to the facts of Petitioner's capital murder trial. See Illinois v. Vitale, 447 U.S. 410, 416 (1980) (holding the Blockburger standard is used to determine whether two offenses are the same for purposes of barring successive prosecutions). Petitioner was not subjected to either successive trials or cumulative punishments.

         In Blockburger, the Supreme Court addressed whether the constitutional rights of a criminal defendant charged with five counts of selling morphine hydrochloride (and convicted on three of those counts) were violated when he received consecutive sentences of up to five years imprisonment and separate fines of two thousand dollars on each count for which he was convicted. Blockburger argued that he had made two of the sales for which he was convicted to the same person and, therefore, they should be considered a single offense under the applicable federal statute and two of the counts identified an identical sale. The Supreme Court held the two sales to the same purchaser were distinct sales made at different times and the federal statute penalized any sale made in the absence of the requirements set forth in that statute. See Blockburger v. United States, 284 U.S. at 301-02 (“Each of several successive sales constitutes a distinct offense, however closely they may follow each other.”). As to Blockburger's complaint that two of the counts of the indictment against him alleged multiple crimes arising from the same sale of narcotics, the Supreme Court noted the applicable federal statute separately penalized both selling any forbidden drug except in or from the original stamped package and selling any of the forbidden drugs not in pursuance of a written order of the person to whom the drug is sold. Id., 284 U.S. at 303-04. The Supreme Court held (1) the applicable rule for determining whether the same act or transaction constitutes a violation of two distinct statutory provisions is whether each provision requires proof of a fact which the other does not, (2) the two statutory prohibitions each required proof of a different element, (3) applying the relevant test, both sections of the statute were violated by the same sale, and (4) two separate offenses were committed. Id., 284 U.S. at 304. Blockburger made multiple sales of illicit narcotics, some to the same purchaser. In contrast, the offense of murder with which the Petitioner was charged is not capable of repetition; nor did Petitioner's criminal conduct result in multiple deaths.

         Petitioner's capital offense involved a single murder victim and, necessarily, constituted a single criminal offense.[141] Contrary to Petitioner's arguments on direct appeal, the indictment against Petitioner did not charge him with multiple criminal offenses.[142] Rather, what the indictment against Petitioner did charge was multiple theories of a single capital offense, i.e., allegations that Petitioner intentionally fatally shot Julie Rhodes with a deadly weapon (1) during the course of robbing her, (2) while Julie Rhodes was in a vehicle, and (3) while Petitioner was in a vehicle. Under applicable Alabama statute, each of the three circumstances listed in Petitioner's indictment was sufficient to raise the Petitioner's fatal shooting of Julie Rhodes to a capital offense. See Ala. Code §13A-5-40(a)(2), (a)(17), & (a)(18).[143]

         Nothing in the Double Jeopardy Clause or any other provision in the Constitution prevented or prohibited the State of Alabama from charging Petitioner with multiple theories underlying a single offense of capital murder. Where two statutory sections operate independently of one another, as is the case with the Alabama capital murder statute's list of those criminal acts which elevate an ordinary murder to the level of capital murder, there is no bar to the Government's proceeding with prosecution simultaneously under the two statutes. Ball v. United States, 470 U.S. 856, 860 (1985). In such circumstances, the Double Jeopardy Clause imposes no prohibition to simultaneous prosecutions. Id., 470 U.S. at 860 n.7. Even where the Double Jeopardy Clause bars cumulative punishment for a group of offenses, it does not prohibit the State from prosecuting the defendant for such multiple offenses in a single prosecution. Ohio v. Johnson, 467 U.S. 493, 500 (1984).

         The Supreme Court discussed the application of this rule in the context of capital murder prosecutions in Schad v. Arizona, 501 U.S. 624, 631 (1991): “Our cases reflect a long-established rule of the criminal law that an indictment need not specify which overt act, among several named, was the means by which a crime was committed.” The four-Justice plurality in Schad cited several of that court's prior opinions, as well as Rule 7(c)(1) of the Federal Rules of Criminal Procedure, for the rule that, in cases of murder, it is “immaterial whether death was caused by one means or the other.” Id.[144]Concurring separately, Justice Scalia explained the rationale for this long-established rule: “As the plurality observes, it has long been the general rule that when a single crime can be committed in various ways, jurors need not agree upon the mode of commission. That rule is not only constitutional, it is probably indispensable in a system that requires a unanimous jury verdict to convict.” Schad, 501 U.S. 649-50 (Scalia concurring and citations omitted).[145]

         That the Alabama Court of Criminal Appeals applied the Blockburger standard to analyze the multiple theories underlying the capital murder charge against Petitioner and reject Petitioner's Double Jeopardy claim on the merits does not mandate relief under the AEDPA. On the contrary, under the AEDPA, federal habeas corpus review of the state appellate court's decision rejecting Petitioner's Double Jeopardy claim on the merits must focus on the state appellate court's ultimate decision or ultimate conclusion and not the rationale for that decision set forth in the state appellate court's opinion. See Harrington v. Richter, 562 U.S. 86, 98-99 (2011) (holding § 2254(d) bars re-litigation of any claim adjudicated on the merits in state court subject only to statutory exceptions, the statute refers only to a “decision” which resulted in an “adjudication, ” and there is no requirement that a state court issue an opinion explaining its reasoning); Gill v. Mecusker, 633 F.3d 1272, 1291 (11th Cir.) (the precise question that must be answered under the AEDPA standard must focus on the state court's ultimate conclusion, not the reasoning set forth in the state court's opinion), cert. denied, 565 U.S. 1084 (2011). “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. at 101.

         The state appellate court's rejection on the merits of Petitioner's Double Jeopardy claim was wholly consistent with the Supreme Court's holding in Schad v. Arizona, recognizing that when multiple methods of committing a single capital murder are available under applicable state law and supported by the evidence, the State is free to charge multiple theories underlying that criminal offense and the jury is not required to unanimously agree on which of the theories it believes support a finding of guilt beyond a reasonable doubt. See Sims v. Singletary, 155 F.3d 1297, 1313 (11th Cir. 1998) (holding that a Florida jury did not need to agree on the precise theory of first degree murder; that a general verdict was permissible (citing Schad v. Arizona, 501 U.S. at 644-45)), cert. denied sub nom. Sims v. Moore, 527 U.S. 1025 (1999). Petitioner has identified no Supreme Court authority holding that, where there is but a single victim, separate theories of capital murder authorized under state statute must satisfy the Blockburger standard. See Coe v. Bell, 161 F.3d 320, 348 (6th Cir. 1998) (“Admittedly, it is acceptable for a first-degree murder conviction to be based on two alternative theories even if there is no basis to conclude which one (if only one) the jury used.” (citing Schad v. Arizona, 501 U.S. at 636-37), cert. denied, 528 U.S. 842 (1999). This court's independent research has identified no such Supreme Court authority. Indeed, the Supreme Court's holding in Schad precludes such a rule. Nothing in clearly established Supreme Court precedent mandates the reversal of Petitioner's capital conviction or sentence based upon Double Jeopardy principles.[146]

         4. Conclusions

         The Alabama appellate court's rejection on the merits during Petitioner's direct appeal of Petitioner's Double Jeopardy claim was neither contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial and direct appeal proceedings. Paragraphs 211-12 of Petitioner's federal habeas corpus petition do not warrant habeas corpus relief.

         I. Improper Prosecutorial Jury Argument at Guilt-Innocence Phase

1. State Court Disposition

         In his seventh ground for relief on direct appeal, Petitioner argued that the prosecutor's closing guilt-innocence phase jury argument improperly equated Petitioner with the Nazis and Hitler.[147] The Alabama Court of Criminal Appeals rejected this argument on the merits:

An examination of the record does not indicate that the prosecutor's remark, in the context in which it was made was intended to inflame the passion of the jury, or to be a comment on the appellant's character, nor would the jury have considered it that way when the comment is viewed within the entire charge. It was not calculated to produce a wrongful conviction. The prosecutor was attempting to make a historical analogy to the evidence in the case. The comment was not a statement of fact, but merely an argument of the prosecutor in drawing an inference from the evidence.

Barksdale v. State, 788 So.2d at 911. The state appellate court concluded the comment was not improper in the context of the entire argument. Id., 788 So.2d at 912-13.

         Petitioner's trial counsel argued the testimony showing there was pleasant conversation about music inside Julie's car prior to the shooting belied the prosecution's contention that Petitioner planned to rob Julie.[148] In response, during the prosecutor's final closing argument, the following exchanges occurred:

[MR. CLARK]: When I was a kid -- you know, when I was a kid and I did something I shouldn't have done, if I managed to have done it without any witnesses, and i didn't get caught, and the evidence of what I had done later, you know, a broken lamp or broken window or whatever it was, was discovered later, and I knew nobody had the goods on me, if my daddy said “Rea, did you do this?”
I might say, “No, Daddy, I didn't do it.”
Deny it. You know, hope you get lucky. Deny it. But if you get caught, you get caught, somebody, you know, my little brother saw me do it, “Rea, did you do this? Billy said did you.”
“Yes, Daddy, I did it. It was an accident. It was an accident.” Whether it was or wasn't, you know. That's sort of the way you go depending on how tough the pressure is on you, you know. It was an accident. It was accident. And, that's all that happened in this case, ladies and gentlemen. They got back up there among some of his running buddies, some of whom were female, word gets back up there that there's a girl killed in Alex City and they are driving around in her car, blood in it, bullet holes in the window, or a hole in the window. “What about it, Tony, did you kill this girl in Alex City?”
“It was an accident. It was an accident.”
It was an accident twice. It was not an accident with the seconds between the shots. It was not an accident with no holes in the back seat, no holes in the back of the seat, no holes in the floor, no holes in the roof, no holes in him. There are aimed, cocked shots.
Now, friendly conversation in the car. Is that a reason to doubt or is that something that makes perfect sense to you based on everything else that you heard, considering where he was at the moment, in the back seat and looking for a place to pull this off. Heck, the Nazis used to have orchestras playing for the Jews . . . .
MR. GOGGANS: Objection, Your Honor.
THE COURT: Yes, that may be just a little extreme.
MR. CLARK: Well, the point is: Putting your victim at ease, you know. I am not saying he is a member of that group.
MR. GOGGANS: Your Honor, I object to this and move for a mistrial.
THE COURT: I'm going to deny it. He didn't say that. Don't infer it. Don't even talk about that.
MR. CLARK: I don't infer that at all. The point is putting your victim at ease for what purpose? For what purpose? For what purpose? To make them easy to handle until you are ready. Until you are ready. Keep them calm until you are ready. And, that is all he did. That was what the conversation was. That is what the conversation was.
Now, the friendly stranger. Antione Harris. Antione Harris told the police I think she may have known Josh. I think she may have known Tony. The only problem with that is that -- and, he said he thought he had seen her somewhere. Well, later, in a telephone conversation, he asked Barksadale, “Did you know her? Did you know her?”
And, he said “No.” he said no.
And, Garrison -- Garrison told you that while she was still in the car with him, still in the car with him, he asked her what her name was -- what her name was. She happen [sic] to be the victim that presented the opportunity at the time they were looking for one.
Now, there's nothing about Charlotte Lane that is an unlikely scenario in that kind of crime. Nothing whatsoever. The shopping center, but not Charlotte Lane. Not Charlotte Lane.[149]

         2. Clearly Established Federal Law

         In reviewing the propriety of prosecutorial closing argument, the relevant question is whether the prosecutor's comments “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)).

         3. AEDPA Review

         To find prosecutorial misconduct warranting a new trial, the Eleventh Circuit applies a two-pronged test: the remarks must be improper and the remarks must prejudicially affect the substantial rights of the defendant. Conner v. GDCP Warden, 784 F.3d 752, 769 (11th Cir. 2015), cert. denied, 136 S.Ct. 1246 (2017). To satisfy the second prong, the prosecutor's improper comments must have “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Id. (quoting Darden v. Wainwright, 477 U.S. at 181). In determining whether prosecutorial arguments are sufficiently egregious to result in the denial of due process, the Eleventh Circuit considers the statements in the context of the entire proceeding, including factors such as (1) whether the remarks were isolated, ambiguous, or unintentional; (2) whether there was a contemporaneous objection by defense counsel; (3) the trial court's instructions; and (4) the weight of aggravating and mitigating factors. Conner v. GDCP Warden, 784 F.3d at 769 (quoting Land v. Allen, 573 F.3d 1211, 1219-20 (11th Cir. 2009), cert. denied, 559 U.S. 1072 (2010)).[150]

         Federal courts recognize as proper four areas for prosecutorial jury argument: (1) summation of the evidence; (2) reasonable inferences drawn from the evidence; (3) replies or answers to opposing counsel's argument; and (4) pleas for law enforcement and justice.[151]

         Alabama law likewise recognizes as appropriate these same four areas of prosecutorial jury argument.[152]

         Contrary to Petitioner's assertion, nothing in the prosecutor's comment about the Nazis having an orchestra playing at their concentration camps amounted to a direct comparison of Petitioner with Hitler. In fact, the prosecutor never mentioned or alluded to Hitler by name or otherwise. Petitioner's own trial counsel urged the jury to consider the testimony showing Petitioner and Julie engaged in “pleasant conversation” prior to the fatal shooting and suggested this evidence negated the prosecution's theory that Petitioner was then planning to rob Julie. The thrust of the prosecutor's argument in rebuttal, i.e., the prosecutor's suggestion that Petitioner engaged in pleasant conversation with Julie for the purpose of keeping Julie calm until Petitioner was ready to rob her, was an eminently reasonable and permissible inference drawn from the evidence then before the jury. The jury could reasonably have inferred from the testimony before it that Petitioner chose not to rob Julie near the shopping center where she picked up Petitioner, Garrison, and Hilburn (where many people were watching the Christmas parade) and Petitioner chose instead to wait until they were in a far more remote location to rob her. Thus, the gist of the prosecutor's argument was a proper rebuttal to the guilt-innocence phase jury argument first made by Petitioner's trial counsel and based upon reasonable inferences drawn from the evidence.

         The prosecutor's allusion or “historical analogy” to the prisoner orchestras which played at Nazi concentration camps was hyperbolic and arguably improper. Nonetheless, in the context of the Petitioner's trial, the prosecutor's comment did not render the guilt-innocence phase of Petitioner's capital murder trial fundamentally unfair. The prosecutor's comment about the Nazis was isolated and drew a swift objection from Petitioner's trial counsel. The trial judge just as swiftly rebuked the prosecutor and instructed the prosecutor on the record not to complete the analogy the prosecutor was attempting to draw. The prosecutor abided by the trial judge's instructions and made no further reference to the Nazis.

         Viewed in the light most favorable to the jury's verdict, the evidence of Petitioner's guilt was overwhelming. Petitioner admitted he was inside Julie Rhodes's vehicle when two shots from his gun struck her. Garrison and another witness each testified that, earlier that same day, the Petitioner expressed a desire to “jack” someone and a preference for robbing one person, rather than a couple of people. Garrison testified without rebuttal that Julie begged Petitioner not to shoot her but Petitioner did - twice. The uncontroverted testimony of the medical examiner established Julie was shot once in the face and once in the back. The jury could reasonably have believed Garrison's testimony that, after shooting Julie, Petitioner exited the vehicle, pushed Julie away from the vehicle, and got behind the steering wheel. It was undisputed that, immediately after the shooting, Petitioner, Garrison, and Hilburn drove away from the scene of the shooting without making any effort to obtain or render assistance to Julie or to alert anyone else who might have been able to do so. Petitioner told one acquaintance that he had shot a girl but did not know if he had killed her. When Petitioner, Garrison, and Hilburn returned to the Guntersville area, Petitioner told numerous people that he had purchased Julie's vehicle and, for the first time, asserted his fatal shooting of Julie had been accidental.

         Considering all the circumstances, the prosecutor's isolated remark about the Nazis did not prejudicially affect the substantial rights of the defendant. There is simply no reasonable probability that the prosecutor's reference to the Nazis playing music changed the outcome of the guilt-innocence phase of Petitioner's capital murder trial. The Alabama Court of Criminal Appeals could have reasonably concluded the prosecutor's isolated remark did not rise above the level of harmless error.

         4. Conclusions

         The Alabama appellate court's rejection on the merits during Petitioner's direct appeal of Petitioner's claim based upon the prosecution's alleged improper guilt-innocence phase jury argument was neither contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial and direct appeal proceedings. Paragraphs 213-15 of Petitioner's federal habeas corpus petition do not warrant habeas corpus relief.

         J. Consideration of All Aggravating Factors at Punishment Phase

         1. State Court Disposition

         At the punishment phase of Petitioner's capital murder trial, the trial judge instructed the jury that if it were convinced beyond a reasonable doubt of the existence of any of three, specific aggravating circumstances, the jury could consider and weigh those factors when making its sentencing recommendation; those factors were (1) the Petitioner was previously convicted of a felony involving the use or threat or violence to a person, (2) Petitioner committed this capital offense while he was engaged in or was an accomplice in the commission of or attempt to commit the crime of robbery, and (3) the offense was especially heinous, atrocious, or cruel compared to other capital offenses.[153] In his Sentencing Order, the trial judge concluded these same three aggravating circumstances had been established by the evidence.[154]

         In his eighth ground for relief on direct appeal, Petitioner argued the sentencing court erred in considering as aggravating circumstances the facts, which the jury concluded at the guilt-innocence phase of trial had been established beyond a reasonable doubt, that the Petitioner intentionally shot Julie Rhodes both while he was engaged in the robbery or attempted robbery of Julie Rhodes and while she was inside a vehicle.[155] The Alabama Court of Criminal Appeals rejected these arguments on the merits:

Moreover, our statutes allow “double-counting” or “overlap” and provide that the jury, by its verdict of guilty of the capital offense, finds the aggravating circumstances encompassed in the indictment to exist beyond a reasonable doubt. See §§13A-5-45(e) and (50). “The fact that a particular capital offense as defined in section 13A-5-4(a) necessarily includes one or more aggravating circumstances as specified in section 13A-5-49 shall not be construed to preclude the finding and consideration of that relevant circumstance or circumstances in determining sentence. § 13A-5-50.”

Barksdale v. State, 788 So.2d at 913 (quoting Coral v. State, 628 So.2d 954, 965-66 (Ala.Crim.App.1992), aff'd, 628 So.2d 1004 (Ala. 1993), cert. denied, 511 U.S. 1012 (1994)).

Clearly, § 13A-5-50 provides that a jury may consider an element of capital murder as an aggravating circumstance if that element is listed in § 13A-5-49. Further, this court has repeatedly held that the use of an element of capital murder in such a way does not, as the appellant argues, punish a defendant twice for the same offense. “A capital punishment scheme, under which the same felony may form the basis of an essential element of the crime and an aggravating circumstance for consideration by the jury in recommending a sentence does not constitute a denial of the guarantee against double jeopardy.”

Id., at 913-14 (quoting Burton v. State, 651 So.2d 641, 657-58 (Ala.Crim.App.1993), aff'd, 651 So.2d 659 (Ala. 1994), cert. denied, 514 U.S. 1115 (1995)).

         Petitioner presented a somewhat similar argument as his thirteenth claim for relief in his Rule 32 petition.[156] The state trial court concluded Petitioner had procedurally defaulted on this claim by failing to raise it at trial and because it was raised on direct appeal.[157] The Alabama Court of Criminal Appeals noted that Petitioner did not include any complaint about the trial court's disposition of this claim in Petitioner's appeal from the denial of his Rule 32 petition.[158]

         2. Clearly Established Federal Law

         In Jones v. United States, 527 U.S. 373, 398 (1999), the Supreme Court declined to adopt the rule underlying Petitioner's eighth claim before the Alabama Court of Criminal Appeals: “We have never before held that aggravating factors could be duplicative so as to render them constitutionally invalid, nor have we passed on the ‘double counting' theory . . . . What we have said is that the weighing process may be impermissibly skewed if the sentencing jury considers an invalid factor.” Jones, 527 U.S. at 398 (citation omitted).

         In their opinion dissenting from the denial of certiorari in Wiley v. Mississippi, 479 U.S. 906 (1986), Justices Marshall and Brennan argued, as had a dissenting Justice in the Mississippi Supreme Court, that a “single legally indivisible act of the defendant may rationally aggravate a murder but once.” Wiley v. Mississippi, 479 U.S. at 305-06 (Marshall and Brennan dissenting).

         3. AEDPA Review

         At no point in the trial court's punishment phase jury instructions did the trial judge instruct the jury to consider as an aggravating circumstance the fact the Petitioner fatally shot Julie Rhodes while she was inside a vehicle. Nor did the trial court's Sentencing Order mention the evidence establishing this undisputed fact as supporting an independent aggravating circumstance. Thus, insofar as Petitioner argued before the Alabama Court of Criminal Appeals that the sentencing jury and sentencing court improperly considered as an aggravating circumstance the evidence showing the Petitioner fatally shot Julie Rhodes while she was inside a vehicle, Petitioner's argument was premised upon a factually inaccurate assertion. There is nothing in the record currently before this court even remotely suggesting, much less establishing, that either the Petitioner's sentencing jury or sentencing court actually considered the fact Petitioner shot Julie Rhodes while she was inside a vehicle as an aggravating circumstance when weighing the aggravating and mitigating circumstances at the punishment phase of trial.

         Insofar as Petitioner argues his sentencing jury and the sentencing court were constitutionally precluded from considering the evidence showing Petitioner fatally shot Julie Rhodes while in the course of robbing her, Petitioner argues for the adoption of a new rule of constitutional criminal procedure, a rule the Supreme Court has not yet adopted. The new rule advocated by Petitioner falls within neither of the two narrow categories of cases recognized by the Supreme Court in Teague v. Lane as exceptions to the general rule against applying new rules of criminal procedure within the context of a federal habeas corpus proceeding. Petitioner's proposed rule neither places certain kinds of primary, private individual conduct beyond the power of criminal law-making authority to proscribe nor requires the observance of those procedures that are implicit in the concept of ordered liberty. Teague v. Lane, 489 U.S. at 307. Therefore, this court is precluded from adopting this new rule in the context of this federal habeas corpus proceeding.

         Moreover, the new rule advocated by Petitioner would warp the capital sentencing weighing process in jurisdictions such as Alabama by preventing the sentencing jury and sentencing judge from considering and giving weight to the very evidence which justified holding a capital sentencing proceeding in the first place.

         In Lowenfield v. Phelps, 484 U.S. 231 (1988), the Supreme Court confronted a Louisiana capital murder conviction premised upon the jury's conclusion at the guilt-innocence phase of trial that the defendant knowingly created a risk of death or great bodily harm to more than one person. Lowenfield complained that the sole aggravating circumstance found by the jury at the sentencing phase of his trial and upheld by the Supreme Court of Louisiana merely duplicated this same element of his capital murder charge and, thereby, violated the Eighth Amendment. The Supreme Court rejected this argument, explaining what it perceived to be the proper role of “aggravating circumstances”:

The use of “aggravating circumstances” is not an end in itself, but a means of genuinely narrrowing the class of death-eligible persons and thereby channeling the jury's discretion. We see no reason why this narrowing function may not be performed by jury findings at either the sentencing phase of the trial or the guilt phase.

Lowenfield v. Phelps, 484 U.S. at 244-25. After discussing its precedents addressing the nature of the constitutionally mandated narrowing function implicit in capital sentencing, the Supreme Court declared as follows:

It seems clear to us from this discussion that the narrowing function required for a regime of capital punishment may be provided in either of these two ways: The legislature may itself narrow the definition of capital offenses, as Texas and Louisiana have done, so that the jury finding of guilt responds to this concern, or the legislature may more broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase.
Here, the “narrowing function” was performed by the jury at the guilt phase when it found defendant guilty of three counts of murder under the provision that “the offender had a specific intent to kill or to inflict great bodily harm upon more than one person.” The fact that the sentencing is also required to find the existence of an aggravating circumstance in addition is no part of the constitutionally required narrowing process, and so the fact that the aggravating circumstance duplicated one of the elements of the crime does not make this sentence constitutionally infirm. There is no question but that the Louisiana scheme narrows the class of death-eligible murderers and then at the sentencing phase allows for the consideration of mitigating circumstances and the exercise of discretion. The Constitution requires no more.

Id., 484 U.S. at 246.

         Unlike the Texas and Louisiana capital sentencing schemes the Supreme Court discussed in Lowenfield, the Alabama capital sentencing scheme performs the constitutionally mandated narrowing function at the punishment phase of trial by requiring a weighing of aggravating and mitigating factors. Petitioner's proposed new rule would distort the constitutionally mandated narrowing function by prohibiting both the judge and jury from considering (as part of the weighing process) the very evidence the jury unanimously concluded supported a finding that a capital murder, as defined by Alabama statute, had been established beyond a reasonable doubt. To adopt the new rule advocated by Petitioner, i.e., to prohibit the sentencing jury and sentencing court from considering and weighing as an aggravating factor the evidence concerning the nature of the offense which the jury unanimously concluded at the guilt-innocence phase of trial had been established beyond a reasonable doubt, would skew the capital sentencing weighing process in a manner that is neither logical nor constitutionally mandated. The Supreme Court held in Lowenfield that such a rule was not required by the Eighth Amendment's prohibition against cruel and unusual punishment. Petitioner has cited no Supreme Court opinion holding such a rule is mandated by either the Due Process or Double Jeopardy Clauses of the Fifth Amendment or the Due Process or Equal Protection Clauses of the Fourteenth Amendment.[159] This court's independent research has revealed no Supreme Court majority opinion prohibiting the “double counting” of which Petitioner complains. On the contrary, the Supreme Court majority's failure to adopt such a rule in Jones and Wiley furnishes at least some indication that no such rule of constitutional criminal procedure currently exists.[160]

         4. Conclusions

         In the absence of any clearly established Supreme Court authority prohibiting the “double counting” about which Petitioner complains, the state appellate court's rejection on the merits of this claim during the course of Petitioner's direct appeal was neither contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the Petitioner's state trial and direct appeal proceedings. Paragraphs 216-17 of Petitioner's federal habeas corpus petition do not warrant habeas corpus relief.

         V. INEFFECTIVE ASSISTANCE BY TRIAL COUNSEL

         A. Overview of the Claims

         In paragraphs 9 through 101 of his federal habeas corpus petition, [161] Petitioner argues that his trial counsel rendered ineffective assistance in violation of his Sixth Amendment right to counsel by failing to (1) investigate the case against Petitioner and present evidence showing the fatal shooting of Julie Rhodes was an accident, (2) adequately cross-examine prosecution witness Jonathan David Garrison, (3) move for a continuance and seek a new defense investigator after Garrison accepted a plea bargain on the eve of trial, (4) investigate Petitioner's background and present available mitigating evidence at the punishment phase of trial, (5) challenge the prosecution's argument (and the trial court's finding) that Petitioner's offense was “heinous, atrocious, and cruel, ” (6) undermine the aggravating evidence showing Petitioner had a prior conviction for armed robbery as a teenager, (7) raise a Batson challenge to the prosecution's use of its peremptory challenges to strike black members of the jury venire, i.e., the prosecution's striking of two of the six black members of the jury venire, (8) raise a challenge to the prosecution's use of its peremptory challenges to strike female members of the jury venire, i.e., the prosecution's use of sixteen of its twenty-one peremptory strikes against women, (9) raise a fair cross-section challenge to Tallapoosa County's method of choosing prospective jurors, i.e., only eleven percent of Petitioner's jury venire was black while thirty-six percent of Tallapoosa County residents were black, (10) object to the prosecution's improper comparison of the Petitioner's age to the victim's age during closing jury argument at the punishment phase of trial, and (11) object to the trial court's erroneous jury instructions which failed to properly instruct the jury (a) on the burden of proof for establishing the existence of mitigating circumstances, (b) on the jury's duty to recommend a life sentence if the mitigating and aggravating circumstances were equally balanced, (c) that it did not need to unanimously find the existence of a particular mitigating circumstances before weighing that mitigating circumstance against the aggravating factors, and (d) on the meaning of the term “life without parole, ” as used in the punishment phase jury instructions.[162]

         B. Overview of State Court Disposition

         Petitioner presented highly conclusory versions of these same ineffective assistance claims, bereft of any fact-specific support, in his Rule 32 proceeding.[163]In an Order issued January 6, 2003, the state trial court concluded the vast majority (all but two) of Petitioner's ineffective assistance claims were not supported by any fact specific allegations and summarily dismissed them.[164] On June 23-24, 2005, the state trial court held an evidentiary hearing on Petitioner's remaining ineffective assistance claims (i.e., Petitioner's Wiggins claim and complaint about his trial counsel's failure to object to the allegedly prejudicial behavior of the victim's relatives in the courtroom) and heard testimony from Petitioner's former trial counsel, Petitioner's mother, the father of a childhood friend of Petitioner, and a North Carolina attorney.[165] In an Order issued October 4, 2005, the state trial court denied the Petitioner's remaining ineffective assistance claims on the merits.[166]Petitioner appealed. In a Memorandum issued August 24, 2007, the Alabama Court of Criminal Appeals affirmed the state trial court's denial of Petitioner's Rule 32 petition.[167] On April 25, 2008, the Alabama Supreme Court denied Petitioner's petition for writ of certiorari.[168]

         C. Clearly Established Federal Law

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

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

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

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

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

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

         A habeas petitioner has the burden to prove both prongs of the Strickland ineffective assistance standard by a preponderance of the evidence. Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir.), cert. denied, 562 U.S. 1082 (2010); Mills v. Singletary, 63 F.3d 999, 1020 (11th Cir. 1995), cert. denied, 517 U.S. 1214 (1996); Wiley v. Wainwright, 709 F.2d 1412, 1413 (11th Cir. 1983). See also Chandler v. United States, 218 F.3d 1305, 1314 n.15 (11th Cir. 2000) (“Petitioner continually bears the burden of persuasion on the constitutional issue of competence and further, (adding the prejudice element) on the issue of ineffective assistance of counsel.”), cert. denied, 531 U.S. 1204 (2001). Under the well-settled Strickland standard, the Supreme Court recognizes a strong presumption ...


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