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Reeves v. Dunn

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

January 8, 2019

JEFFERSON D. DUNN, Respondent.



         Petitioner, Matthew Reeves, a state prisoner currently in the custody of the Alabama Department of Corrections, has petitioned this Court for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. Reeves challenges the validity of his 1998 conviction for capital murder in the Circuit Court of Dallas County, Alabama. (Doc. 24). This matter is now before the Court on Reeves's petition, Respondent's answer, and the briefs, responses, and exhibits filed by the parties, as well as the 32-volume record of state-court proceedings. Following a thorough review of the petition and record, the undersigned finds that an evidentiary hearing is not warranted on the issues.[1] For the reasons set forth below, the Court finds that Petitioner Reeves's petition for writ of habeas corpus is due to be DENIED, and that if Reeves seeks the issuance of a certificate of appealability, his request be denied, along with any request to appeal in forma pauperis.

         I. Background and Facts.

         The Alabama Court of Criminal Appeals found the facts of this case to be as follows:[2]

"On November 27, 1996, the appellant (who was 18 years old at the time) and his younger brother, Julius, visited Brenda Suttles and Suttles's 15- year-old cousin, Emanuel, at Suttles's house on Lavender Street in Selma. There, according to Suttles, everyone agreed to go out 'looking for some robberies.' (R. 684.) Shortly after noon that day, the foursome left Suttles's house on foot and walked to a nearby McDonald's restaurant, where they saw Jason Powell driving by in his car. The appellant's brother, Julius, flagged Powell down, and Powell agreed to give the group a ride.”
"Brenda Suttles and Emanuel Suttles testified that after the foursome got into Powell's car, Julius Reeves suggested that they go to White Hall, a town in neighboring Lowndes County, to rob a drug dealer. According to Brenda Suttles, everyone in the car agreed to the plan. (Powell, who also testified at trial, denied hearing the discussion about a robbery.) Before leaving Selma, the group stopped at an apartment on Broad Street. Julius Reeves went inside the apartment and returned to the car a short time later carrying a shotgun, which he handed to the appellant. With Powell driving, the group then headed for White Hall.”
"Before they reached White Hall, however, Powell's car broke down on a dirt road off Highway 80. Shortly thereafter, a passing motorist, Duane Smith, stopped and told the group that he was in a hurry to meet some friends to go hunting, but that he would return around sunset and would take them to get help then. For the next couple of hours, the group sat in Powell's car and listened to music, until another passing motorist, Willie Johnson, stopped in his pickup truck and offered to tow Powell's car to Selma. Using some chains that he kept in his pickup truck, Johnson hooked Powell's car to the back of his truck. With Julius Reeves riding in the truck with him and the others in Powell's car, Johnson towed the car to the Selma residence where the appellant and Julius lived with their mother.”
"When they arrived at the Reeveses' house, Julius Reeves got out of Johnson's truck and told the others that Johnson wanted $25 for towing them. However, no one had any money to pay Johnson. Julius Reeves then offered to give Johnson a ring as payment if Johnson would drive him to his girlfriend's house to get the ring. Johnson agreed and he unhooked Powell's car from his truck. According to Jason Powell and Emanuel Suttles, Julius Reeves at this point told the others that Johnson was going to be their robbery victim. While Jason Powell and Emanuel Suttles stayed behind with Powell's car in front of the Reeveses' house, Julius Reeves got back in the cab of the truck with Johnson, and Brenda Suttles climbed into the rear bed of the truck. Testimony indicated that when Johnson started the truck, the appellant jumped into the rear bed of the truck with the shotgun, hiding the weapon behind his leg as he did so.”
"When they arrived at Julius's girlfriend's house in Johnson's truck, Julius went inside and retrieved the ring he had promised to give Johnson as payment. According to Brenda Suttles, when Julius came out of the house, he walked to the rear of Johnson's truck and told her and the appellant that he was not going to let Johnson keep the ring. After Julius got back in the cab of the truck, Johnson drove everyone back to the Reeveses' house. "Jason Powell and Emanuel Suttles, who had remained at the house with Powell's car, testified that sometime around 7:00 p.m., they saw Johnson's truck drive by the house and turn into an alley -- known as Crockett's Alley -- behind the house. According to Brenda Suttles, who was in the rear bed of the truck with the appellant, just as the truck came to a stop in the alley, she heard a loud 'pow' sound. (R. 704.) Suttles testified that when she looked up, the appellant was withdrawing the barrel of the shotgun from the open rear window of the truck's cab. Johnson had been shot in the neck and was slumped over in the driver's seat. Suttles testified that Julius Reeves jumped out of the truck's cab and asked the appellant what he had done, and that the appellant then told Julius and Suttles to go through Johnson's pockets to 'get his money.' (R. 704.) Suttles stated that Julius then pulled Johnson out of the truck and went through his pockets, giving the money he found in the pockets to the appellant. After Julius had gone through Johnson's pockets, Suttles helped him put Johnson back in the truck's cab. According to Suttles, Johnson was bleeding heavily and making 'gagging' noises. (R. 721.)”
"Jason Powell and Emanuel Suttles testified that they heard the gunshot after Johnson's truck pulled into Crockett's Alley and that a short time later they saw the appellant, Julius Reeves, and Brenda Suttles run out of the alley and into the Reeveses' house. The appellant was carrying a shotgun, they said. They followed the appellant, Julius Reeves, and Brenda Suttles into the Reeveses' house and saw the appellant place the shotgun under a bed in his bedroom. The appellant told Julius and Brenda Suttles to change out of their bloodstained clothes and shoes, and he took the clothes and shoes and stuffed them under a dresser in his bedroom. According to Emanuel Suttles, as the appellant, Julius, and Brenda changed their clothes, they were 'jumping and hollering' and celebrating about 'all the stuff [they] got' from Johnson. (R. 842.) Jason Powell testified that he heard the appellant say, 'I made the money.' (R. 786.)”
"After changing their clothes, the appellant, Julius Reeves, and Brenda Suttles ran to Suttles's house. On the way, the appellant stopped to talk to his girlfriend, telling her that if she should be questioned by the police, to tell them that he had been with her all day. At Suttles's house, the appellant divided the money taken from Johnson -- approximately $360 -- among himself, Julius Reeves, and Brenda Suttles. Testimony indicated that throughout the evening, the appellant continued to brag about having shot Johnson. Several witnesses who were present at Suttles's house that evening testified that they saw the appellant dancing, 'throwing up' gang signs, and pretending to pump a shotgun. Brenda Suttles testified that as the appellant danced, he would jerk his body around in a manner 'mock[ing] the way that Willie Johnson had died.' (R. 713.) The appellant was also heard to say that the shooting would earn him a 'teardrop,' a gang tattoo acquired for killing someone. (R. 720.)”
"Yolanda Blevins, who was present during the post-shooting 'celebration' at Suttles's house, testified that the appellant called her into the kitchen and told her that he had shot a man in a truck after catching a ride with him. Blevins noticed that there was what appeared to be dried blood on the appellant's hands. LaTosha Rodgers, who was also present at Suttles's house, testified that the appellant told her that he had 'just shot somebody' in the alley. (R. 924.)”
"At around 2:00 a.m. on November 28, 1996 (approximately seven hours after the shooting), Selma police received a report of a suspicious vehicle parked in Crockett's Alley. When police officers investigated, they found Johnson's body slumped across the seat of his pickup truck. There was a pool of blood on the ground on the driver's side of the truck. Several coins and a diamond ring were on the ground near the truck. On the floorboard of the truck, police found wadding from a shotgun shell. The pockets of Johnson's pants had been turned inside out and were empty. Testimony at trial indicated that Johnson was a longtime employee of the Selma Housing Authority and that on the afternoon of November 27, 1996, he had cashed his paycheck, which had been in the amount of $500.”
"At the shooting scene on the morning of November 28, police also discovered a trail of blood leading from Johnson's truck to the Reeveses' house. Randy Tucker, a canine-patrol officer with the Selma Police Department, testified that his dog tracked the blood trail from the pool of blood next to Johnson's truck, down Crockett's Alley, through the yard at 2126 Selma Avenue (the residence next to the alley), and ultimately to the front steps of the Reeveses' house at 2128 Selma Avenue.”
"Pat Grindle, the detective in charge of investigating Johnson's murder, went to the Reeveses' house after learning that the blood trail led there. Det. Grindle testified that he obtained the consent of the appellant's mother, Marzetta Reeves, to search the house. In a bedroom shared by the appellant and Julius, Det. Grindle found bloodstained clothes and bloodstained shoes; under a bed in this bedroom, Det. Grindle found a shotgun. In searching the kitchen, Det. Grindle found a pair of bloodstained pants. After making these discoveries, Det. Grindle questioned Marzetta Reeves and several other persons who were in the house at that time. Det. Grindle stated that he learned that the bloodstained clothes and shoes belonged to Julius Reeves, Brenda Suttles, and the appellant. Det. Grindle then went to Suttles's house in an attempt to locate the three. At Suttles's house, Det. Grindle found the appellant lying on a couch in a front room. The appellant was placed under arrest, and the officers seized a balled-up bloodstained jacket he was using as a headrest on the couch. Det. Grindle later returned to the Reeveses' residence, where he seized a 12 gauge shotgun shell from a garbage can in the bathroom.
"An autopsy revealed that Johnson had died from a shotgun wound to his neck that severed the carotid artery, causing him to bleed to death over a period of several minutes. Bloodstain patterns in Johnson's truck indicated that he was sitting upright in the driver's seat, facing forward, when he was shot from behind, through the open rear window. The bloodstain patterns also indicated that the driver's side door had been opened and closed shortly after Johnson was shot.”
"Testimony indicated that the appellant's fingerprints were found on the shotgun that Det. Grindle had seized from under the bed in the appellant's bedroom. Brenda Suttles's and Julius Reeves's fingerprints were found on a fender of Johnson's truck. Joseph Saloom, a firearms expert with the Alabama Department of Forensic Sciences, testified that the shotgun shell seized from the bathroom at the Reeveses' residence was of the type commonly fired from the shotgun seized from the appellant's bedroom. Saloom stated that shotgun-shell wadding found on the floorboard of Johnson's truck was of the type commonly found in the kind of shotgun shell seized from the bathroom at the Reeveses' residence."

Reeves v. State, (CR-13, 1504), 226 So.3d 711, 718-22 (Ala.Crim.App.2016) (quoting Reeves v. State, 807 So.2d 18');">807 So.2d 18, 24-26 (Ala.Crim.App.2000) (Doc. 23-31 at 3-9).

         In January, 1997, Petitioner Reeves was indicted by the Dallas County, Alabama Grand Jury of capital murder in violation of Ala. Code § 31A-5-40(a)(2) (“Murder by the defendant during a robbery in the first degree or an attempt thereof committed by the defendant.”. (Doc. 23-1 at 10-11; Vol. 1, JR-1, pp. 10-11). Reeves entered a plea of not guilty to the charges (Doc. 23-1 at 27-28; Vol. 1, JR-1, pp. 27-28), and, following a jury trial in the Circuit Court of Dallas County, Alabama, Petitioner was convicted of the indicted charge. (Doc. 23-8 at 85-86; Vol. 8, JR-19). The trial judge accepted the jury's recommendation and, on August 20, 1998, sentenced Reeves to death. (Doc. 23-8 at 212; Vol. 8; JR-31; Doc. 23-2 at 20-26; Vol. 2; JR-3 at 233-39).

         Through representation of counsel, Reeves filed a motion for new trial which was denied on December 8, 1998. On August 22, 2000, the Court of Criminal Appeals upheld Reeves's conviction and death sentence. Reeves filed an application for rehearing that was overruled on October 27, 2000. See Reeves v. State, 807 So.2d 18');">807 So.2d 18 (Ala.Crim.App.2000) (Doc. 23-10 at 43-104; Vol. 10, JR-35). Reeves was denied certiorari review by the Alabama Supreme Court on June 8, 2001, and by the United States Supreme Court on November 13, 2001. (Doc. 23-10 at 106-98; Vol. 10, JR-36; Doc. 23-11 at 136; Vol. 11, JR-41); see also, Reeves v. Alabama, 534 U.S. 1026 (2001).

         On October 30, 2002, Reeves executed a post-conviction Rule 32 petition. (Doc. 23-12 at 1758; Vol. 12, JR-42). He filed an amended petition on February 26, 2003 (Doc. 23-12 at 124-86; Vol. 12, JR-47) and a second amended and superseding petition on August 31, 2006. (Doc. 23-14 at 149-201; Doc. 23-15 at 1-17; Vol. 14, JR-60; Vol. 15, JR. 60). The State answered the petition on October 28, 2006, and the Circuit Court conducted an evidentiary hearing on the petition on November 28-29, 2006. (Docs. 23-24, 23-25, 23-26 at 1-10; Vols. 24-26, JR-85). On May 7, 2008, the State filed a proposed order denying Reeves's Rule 32 petition (Doc. 23-15 at 174-201, Doc. 23-16 at 1-57; Vols. 15-16, JR-63) and on September 9, 2008, Reeves filed a written objection to the State's proposed order and a brief in support of his Rule 32 petition. (Doc. 23-16 at 58-134; Vol. 16, JR 64). The Circuit Court denied Reeves's Rule 32 Petition on October 26, 2009; however, the Circuit Court Clerk did not serve the denial order on the parties, and the denial order was not entered into the case docket, until January 7, 2013.[3] (Doc. 23-16 at 135-67; Vol. 16, JR-65).

         Reeves was granted an out-of-time appeal on May 30, 2014 (Doc. 23-19 at 95; Vol. 193, JR-82), and on December 10, 2014, appealed the denial of his Rule 32 petition, asserting the following claims:

1. The Circuit Court erroneously adopted verbatim the portion of the State's proposed order addressing his claim of intellectual disability,
2. The Circuit Court erred in denying his claim of intellectual disability under Atkins,
3. The Circuit Court erred in denying his claims of ineffective assistance of trial and appellate counsel for:
(1) not hiring Dr. Goff, or another neuropsychologist, to evaluate Reeves for intellectual disability despite having court-approved funds to do so,
(2) relying on the testimony of Dr. Ronan, the court-appointed psychologist who examined Reeves to determine his competency to stand trial, to present mitigation evidence during the penalty phase,
(3) failing to object during the penalty phase to Dr. Ronan's testimony that Reeves was not intellectually disabled,
(4) failing to conduct an adequate mitigation investigation and presenting the evidence during the penalty phase of the trial,
(5) failing to preserve claims for direct appeal, including not objecting during the trial to prosecutor's urging to the jury to consider non-statutory aggravating circumstances to impose a death sentence, prosecutor's argument and reference that Reeves was involved in a gang, prosecutor's reference during the penalty phase that the jury's verdict was a recommendation, and the trial court's instruction to the jury during the penalty phase that its verdict was a recommendation,
(6) failing to raise the aforementioned claims regarding trial counsels' ineffectiveness on appeal.
4. The Circuit Court erred in summarily dismissing his claims of juror misconduct,
5. The Circuit Court erred in denying on procedural grounds that claim that lethal injection constitutes cruel and unusual punishment in violation of the Eighth Amendment.

(Doc. 23-29 at 2-115; Vol. 29, JR-90). The Criminal Appeals Court affirmed the Circuit Court's judgment and denied the application for rehearing. (Doc. 23-31 at 2-105; Vol. 31, JR-94; Reeves v. State, 226 So.3d 711 (Ala.Crim.App.2016), rehearing denied by, (CR-13-1504), 2016 Ala. Crim. App. LEXIS 1011 (Ala. Crim. App., Oct. 14, 2016)). And, Reeves's petition for writ of certiorari in the Supreme Court of Alabama was denied (Docs. 23-31 at 106-299, 23-32 at 1-48; Vols. 31, 32, JR-95; Vol. 32, JR-96), as well as his petition for writ of certiorari in the United States Supreme Court, Reeves v. Alabama, __ U.S. __, 138 S.Ct. 22, 199 L.Ed.2d 341 (2017) (Sotomayor, J., dissenting); (Doc. 23-32 at 288-301; Vol. 32, JR-100).

         Reeves timely filed the instant petition for federal habeas relief on February 1, 2017, challenging his 1998 conviction for capital murder. (Docs. 1, 24).

         II. Grounds for Relief.

         In his petition for habeas relief, Reeves raises the following grounds for relief:

1. Capital sentence violates the constitutional prohibition on the execution of intellectually disabled persons.
2. Constitutional right to Due Process was denied when the Circuit Court adopted word-for-word language from the State's proposed order denying Reeves's Atkins claim that contained serious factual omissions and relied on inappropriate considerations.
3. Ineffective Assistance of Counsel:
a. Court of Criminal Appeals unreasonably concluded that counsel's testimony is required to overcome Strickland's presumption of sound trial strategy.
b. Counsel failed to investigate his alleged intellectual disability.
c. Counsel failed to retain mitigating expert and failed to present crucial mitigating evidence.
d. Counsel failed to preserve certain arguments for and present on appeal.
4. Denied a fair trial due to juror misconduct.
5. Alabama's method of execution is unconstitutional.
6. Death sentence violates the Eighth Amendment.
7. Death sentence violates the Sixth Amendment.

(Doc. 24). The habeas petition has been fully briefed and is ripe for consideration. The Court will consider each of Reeves' claims in turn.

         III. Standard of Review.

         This Court's review of Reeves's petition is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). Under AEDPA, "the role of the federal court . . . is strictly limited." Jones v. Walker, 496 F.3d 1216, 1226 (11th Cir. 2007). Specifically, § 2254(d) provides:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - -
(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 facts in light of the evidence presented in the State court proceeding.
(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

28 U.S.C. § 2254(d).

         According to subsection (1), "[a] federal habeas court may issue the writ under the 'contrary to' clause if the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts." Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). "A state court's decision is not 'contrary to ... clearly established Federal law' simply because the court did not cite our opinions." Mitchell v. Esparza, 540 U.S. 12, 16, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003). Indeed, "a state court need not even be aware of our precedents, so long as neither the reasoning nor the result of the state-court decision contradicts them." Id. (internal quotes omitted).

         The "clearly established Federal law" contemplated by subsection (1) "refers to the holdings, as opposed to the dicta, of [U.S. Supreme] Court's decisions as of the time of the relevant state-court decision." Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (internal quotes omitted); accord Greene v. Fisher, 565 U.S. 34, 37-38, 132 S.Ct. 38, 181 L.Ed.2d 336 (2011). Moreover, review under Section 2254(d)(1) is "limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. 170, 181, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011).

         Importantly, "[f]or purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law." Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (internal quotes omitted, emphasis in original). Thus, "[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." Id. (internal quotes omitted). That is, "an unreasonable application of those holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice." White v. Woodall, 572 U.S. 415, 419, 134 S.Ct. 1697, 1702, 188 L.Ed.2d 698 (2014) (internal quotes omitted); Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (A federal habeas court “may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that the application must also be unreasonable.”). "To satisfy this high bar, a habeas petitioner is required to 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." Woods v. Donald, 135 S.Ct. 1372, 1376, 191 L.Ed.2d 464 (2015) (internal quotes omitted). And "[t]he more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations." Harrington, 562 U.S. at 101 (internal quotes omitted). However, "even a general standard may be applied in an unreasonable manner." Panetti v. Quarterman, 551 U.S. 930, 953, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007). The petitioner bears the burden of showing that the state court's ruling was contrary to, or involved an unreasonable application of, controlling Supreme Court precedent. Harrington, 562 U.S. at 98; Woodford v. Visciotti, 537 U.S. 19, 25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002).

         Likewise, with respect to §2254(d)(2), “a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Burt v. Titlow, 571 U.S. 12, 134 S.Ct. 10, 15, 187 L.Ed.2d 348 (2013) (internal quotes omitted). In other words, "if some fair-minded jurists could agree with the state court's decision, although others might disagree, federal habeas relief must be denied. . .[T]he deference due is heavy and purposely presents a daunting hurdle for a habeas petitioner to clear." Loggins v. Thomas, 654 F.3d 1204, 1220 (11th Cir. 2011); see also Greene v. Fisher, 565 U.S. 34, 132 S.Ct. 38, 181 L.Ed.2d 336 (2011) (AEDPA standard is purposely onerous because "federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice system, and not as a means of error correction") (citations and internal quotation marks omitted); Cullen v. Pinholster, 563 U.S. 170, 181, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011) (AEDPA standard "is a difficult to meet ... and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt")(citations and internal quotation marks omitted); Holsey v. Warden, Georgia Diagnostic Prison, 694 F.3d 1230, 1257 (11th Cir. 2012) ("if some fairminded jurists could agree with the state court's decision, although others might disagree, federal habeas relief must be denied") (citation omitted).

         Accordingly, in evaluating Reeves's § 2254 petition, the Court takes great care to abide by the stricture that "[a] federal court may not grant habeas relief on a claim a state court has rejected on the merits simply because the state court held a view different from its own." Hill v. Humphrey, 662 F.3d 1335, 1355 (11th Cir. 2011); see also Reese v. Sec'y, Fla. Dep't of Corr., 675 F.3d 1277, 1286, 2012 U.S. App. LEXIS 6501 (11th Cir. 2012) ("This inquiry is different from determining whether we would decide de novo that the petitioner's claim had merit."). "If this standard is difficult to meet, that is because it was meant to be." Holsey, 694 F.3d at 1257 (citation omitted). "Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." Harrington, 562 U.S. at 102-03 (citation and internal quotation marks omitted).

         Additionally, when a state court refuses to decide a federal claim on state procedural grounds, the federal habeas court is generally precluded from reviewing the claim at all. See, e.g., Williams v. Alabama, 791 F.3d 1267, 1273 (11th Cir. 2015) ("[I]t is well established that federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that is independent of the federal question and adequate to support the judgment.") (citation omitted); Conner v. Hall, 645 F.3d 1277, 1287 (11th Cir. 2011) ("a federal habeas court will not review a claim rejected by a state court if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment"). If, however, the state court's procedural ruling is not adequate to bar federal review, then the federal habeas court must review the claim de novo, and is not confined to the state-court record. See Williams, 791 F.3d at 1273.

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

         Having established the proper standard of review, the Court turns to the claims asserted in Reeves's petition.

         IV. Analysis of Claims.

         In addressing Petitioner Reeves's claims, the Court numbers them as does the Petitioner.

         1. Whether Reeves's Capital Sentence Violates the Constitutional Prohibition of the Execution of Intellectually Disabled Individuals

         Petitioner Reeves asserts that he is intellectually disabled[4] and his capital sentence, thus, violates the Eighth Amendment pursuant to the holding of Atkins. In Atkins, the Court held that that execution of intellectually disabled persons contravenes the Eighth Amendment's prohibition on cruel and unusual punishment. Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); see also Ford v. Wainwright, 477 U.S. 399, 405, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (“[T]he execution of mentally retarded criminals will [not] measurably advance the deterrent or the retributive purpose of the death penalty. . . [W]e therefore conclude that such punishment is excessive and that the constitution ‘places a substantive restriction on the State's power to take the life' of a mentally retarded offender.”)(citation omitted). In reaching its holding, the Court reasoned that intellectually disabled defendants “frequently know the difference in right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.” Id. at 318. The Atkins noted that “clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18”[5] and identified “an IQ between 70 and 75 or lower” as the typical “cutoff IQ score for the intellectual function prong of the mental retardation definition. However, the Court did not dictate a national standard for determining whether a criminal defendant is intellectually disabled and expressly left “to the States the task of developing appropriate ways to enforce the constitutional restriction upon their execution of sentences.” Atkins, 536 U.S. at 309, n.5, 317-18 (internal quotation marks and citation omitted).

         In regard to establishing intellectual functioning, the first prong of the Atkins analysis, the Supreme Court has instructed that sentencing courts must consider the standard error of measurement (“SEM”) when assessing intellectual disability. See Hall v. Florida, __ U.S. __, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014). The Supreme Court observed that:

The professionals who design, administer, and interpret IQ tests have agreed, for years now, that IQ test scores should be read not as a single fixed number but as a range. See D. Wechsler, The Measurement of Adult Intelligence 133 (3d ed. 1944) (reporting the range of error on an early IQ test). Each IQ test has a “standard error of measurement, ” ibid., often referred to by the abbreviation “SEM.” A test's SEM is a statistical fact, a reflection of the inherent imprecision of the test itself. See R. Furr & V. Bacharach, Psychometrics 118 (2d ed. 2014) (identifying the SEM as “one of the most important concepts in measurement theory”).

Hall, 134 S.Ct. at 1995-96. Accordingly, the Court determined that “a State must afford these test scores the same studied skepticism that those who design and use the tests do, and understand that an IQ test score represents a range rather than a fixed number. . . . [otherwise, the State] risks executing a person who suffers from intellectual disability.” Id. at 2000-01. Thus, “when a defendant's IQ test score falls within the test's acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits”, as well as “medical histories, behavioral records, school tests and reports, and testimony regarding past behavior and family circumstances.”[6] Id. at 1994, 2001. Notably, Hall was decided in 2014, after the Circuit Court's denial of Reeves's Rule 32 petition.

         In light of the reasoning and guidance of Atkins, the Alabama Supreme Court set forth its three-prong test for intellectual disability in Ex parte Perkins:

[T]he Alabama Supreme Court has defined the test for mental retardation that rises to the level of prohibiting execution as having three components: (1) significant subaverage intellectual functioning (an IQ of 70 or below); (2) significant or substantial deficits in adaptive behavior; and (3) the manifestation of these problems during the defendant's developmental period (i.e., before the defendant reached age 18).

Ex parte Perkins, 851 So.2d 453, 456 (Ala. 2002).[7]

         Reeves previously presented this claim in his Rule 32 post-conviction proceedings. The Alabama Court of Criminal Appeals, in a memorandum opinion, affirmed the circuit court's denial of Reeves's claim of intellectual disability. Reeves now bears the burden of proving by clear and convincing evidence that the state court's determination that he is not intellectually disabled is objectively unreasonable based on the record. Fults v. GDCP Warden, 764 F.3d 1311, 1319 (11th Cir. 2014) (the determination as to whether a person is intellectually disabled is a finding of fact). In accordance with the State's definition for intellectual disability, the Court will review each prong of Alabama's test.

         a. Significantly Subaverage Intellectual Functioning.

         Reeves argues that the trial court unreasonably determined that he did not have significantly subaverage intellectual functioning because: (1) it misapplied factual evidence, when it ignored his full-scale IQ score of 68, (2) it failed to adjust his scores of 71 and 73 downward for the Flynn Effect and SEM, and (3) it looked beyond the numerical IQ scores to determine his intellectual functioning. Reeves presented the same argument to the Alabama Court of Criminal Appeals during his Rule 32 proceedings, and, in its memorandum opinion affirming the trial court's denial of relief, the court stated:

In this case, Reeves had full-scale IQ scores of 68, 71, and 73. Considering the SEM [Standard Error of Measurement], these scores indicate that Reeves's IQ could be as low as 63 or as high as 78. Reeves's expert, Dr. Goff, concluded, based on Reeves's IQ scores as well as all other information before him, that Reeves suffered from significantly subaverage intellectual functioning. On the other hand, the State's expert, Dr. King, concluded, based on Reeves's IQ scores and all other information before him, that Reeves falls within the borderline range of intellectual functioning. The circuit court, after considering all the evidence presented at the hearing, and after observing Reeves when Reeves testified at a pretrial hearing, resolved the conflicting expert testimony as to Reeves's intellectual functioning adversely to Reeves, finding that, although Reeves's intellectual functioning was subaverage, it was not significantly subaverage as required to meet the first prong of intellectual disability. "Conflicting evidence is always a question for the finder of fact to determine, and a verdict rendered thereon will not be disturbed on appeal." Padgett v. State, 668 So.2d 78, 86 (Ala.Crim.App.1995). There is ample evidence in the record to support the circuit court's finding and we will not disturb the circuit court's resolution of the conflicting expert testimony. Therefore, we find no abuse of discretion on the part of the circuit court in concluding that Reeves failed to prove by a preponderance of the evidence that he suffered from significantly subaverage intellectual functioning.

Reeves v. State, 226 So.3d 711, 741 (Ala.Crim.App.2016); Doc. 23-31 at 61-62; Vol. 31, JR-94, pp. 60-61). (emphasis added)

         Having reviewed the record in this matter, the Circuit Court did not make an unreasonable factual determination that Reeves did not suffer from significant subaverage intellectual functioning. Nor is the state court decision “contrary to . . . clearly established Federal law.” 28 U.S.C. § 2254(d)(1).

         The record evidence, including school, medical, mental health, juvenile-court, and Department of Youth Services records, supports that Reeves functioned in the range of borderline intellectual functioning. The records indicate that Reeves was habitually truant and exhibited emotional and behavioral problems in school. Evidence shows that Reeves began mental health treatment when he was 8 years old, beginning with a diagnosis of attention deficit disorder with hyperactivity, and at that time his intelligence level was “estimated to be low average.” (Doc. 23-19 at 1037, Vol. 19-3, JR-84, p. 1515). Although therapy services were terminated after approximately a year and a half due noncompliance (doc. 23-19 at 1061; vol. 19-3, JR-84, p. 1539), Reeves was readmitted approximately 8 months later and “it [wa]s estimated that his intelligence [wa]s somewhat below average, but not within the [intellectual disability] range.” (Doc. 23-19 at 1065; Vol. 19-3, JR-84, p. 1543). Reeves was later diagnosed with conduct disorder. (Doc. 23-19 at 1109; Vol. 19-3, JR-84, p. 1587).

         The record reveals that Reeves failed and repeated the first, third, and fourth grades and that he was "socially" promoted to the seventh grade when he was 14 years old based only on his "level of maturity." (Doc. 23-20 at 89; Vol. 20, JR-84, p. 1688). According to Reeves's mother, Reeves was tested for placement into the Special Education Program at 11 years old, but he "did not qualify" (Doc. 23-19 at 1065; Vol. 19-3, JR-84, p. 1543.) and was later placed in special-education classes for emotional conflict. (Doc. 23-20 at 55; Vol. 20, JR-84, p. 1654).

         Reeves was administered the Wechsler Intelligence Scale for Children, Revised ("WISC-R") when he was 14 and half years old, and he attained a verbal IQ score of 75, a performance IQ score of 74, and a full-scale IQ score of 73, and was classified as being in the borderline range of intellectual functioning. (Doc. 23-20 at 57-58; Vol. 20, JR-84, pp. 1656-58). Reeves was subsequently expelled from school for behavioral reasons in the eighth grade, after a failed attempt at homebound services.[8] When Reeves was 17 years old, the Department of Youth Services reported in its Service Plan Evaluation that “Matthew's background, interview, and test data indicate that he has a conduct disorder with borderline intelligence who is in need of intensive academic/vocational guidance and training in anger management. There was no evidence of a major psychiatric disturbance and he did not display symptoms of ADHD.” (Doc. 23-20 at 13; Vol. 20, JR-84, p. 1612).

         At the Rule 32 hearing, Dr. King opined that Reeves's exhibited borderline intellectual functioning, despite Reeves's full-scale score of 68 on the administered Wechsler Adult Intelligence Scale, Third (“WAIS-III”).[9] In his clinical judgement, Dr. King discredited the validity of the IQ score when compared against the achieved scores of the Wide Range Achievement Test, on which Reeves scored a 75, 74, and 70 for reading (5th grade level), spelling (5th grade level) and arithmetic (4th grade level), respectively.[10](Doc. 23-25 at 24). According to Dr. King, Reeves's achievement scores "indicate[d] a level of functioning higher than the IQ scores actually indicated" which created a discrepancy making Dr. King unable to reach a conclusion about Reeves's intellectual ability based on those tests alone. (Doc. 23-25 at 25-26). After completing adaptive functioning tests, neurological functioning tests, personally observing Reeves, analyzing Reeves's other IQ scores (of 71, 73, and a partial score of 74 on the verbal portion) and reviewing Reeves's childhood and adolescent academic records, Dr. King concluded that Reeves was functioning in the borderline intellectual range and did not exhibit significant subaverage intellectual functioning.

         Dr. Goff, on the other hand, testified that Reeves exhibited subaverage intellectual functioning, with an achieved IQ score of 71 on the administered WAIS-III, on which Reeves attained a verbal IQ score of 71, a performance IQ score of 76, and a full-scale IQ score of 71. (Doc. 23-24 at 43). Dr. Goff opined that Reeves's full-scale score of 71 should be adjusted downward to account for the SEM and the "Flynn Effect”, [11] thereby, reflecting an adjusted full-scale IQ score of 66 (subtracting three points for the "Flynn Effect" and an additional two points for the SEM).[12] (Doc. 23-24 at 43). Nonetheless, Dr. Goff testified that for purposes of diagnosing Reeves as intellectually disabled "[i]t doesn't matter" whether his full-scale IQ score was adjusted "because the criteria is that the IQ score has to be around 70 [and] he qualifies because 71 is around 70." (Doc. 23-24 at 44-45).

To be entitled to federal habeas relief under § 2254, a petitioner must show that the state court's ruling was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S., 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011). "A state court's application of clearly established federal law or its determination of the facts is unreasonable only if no 'fairminded jurist' could agree with the state court's determination or conclusion." Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1257 (11th Cir. 2012) (quoting Harrington, 562 U.S. at, 131 S.Ct. at 780).

Lee v. Comm'r, Ala. Dep't of Corr. 726 F.3d 1172, 1192 (11th Cir. 2013).

         Although Alabama requires all three prongs of the Perkins test to be established, when considering the first prong, “a court should not look at a raw IQ score as a precise measurement of intellectual functioning.”[13] Thomas v. Allen, 614 F.Supp.2d 1257, 1281 (N.D. Ala., S.D. 2009). The state appellate court correctly noted[14] that Reeves's IQ could be anywhere in the range of 63 to 78[15] and correctly identified the trial court's struggle with conflicting expert testimony as to Reeves's intellectual functioning. In assessing the credibility of the experts, the trial court credited the consistency of Reeves's full-scale IQ scores of 73 (from when he was 14 years old) and 71 (achieved on the test administered by Dr. Goff). See Ledford v. Warden, Georgia Diagnostic & Classification Prison, 818 F.3d 600, 635 (11th Cir. 2016) (When assessing credibility, the court considered the fact that one expert's opinion was corroborated with another expert's opinion.). This reasoning is substantiated by Reeves's school records which indicate, although Reeves performed poorly in school, he was habitually truant and that his struggles stemmed mostly from behavioral and emotional issues, rather than lack of intellectual ability. Likewise, Reeves did not qualify for Special Education classes in school. Additionally, evidence showed that Reeves was capable of attaining and holding a job, of showing up on time, and completing skilled construction tasks. See Smith v. Dunn, 2017 U.S. Dist. LEXIS 113862, *15 (N.D. Ala. S.D., July 21, 2017) (“In light of the conflicting evidence, it was reasonable for the Alabama Court of Criminal Appeals to look to Petitioner's demonstrated adaptive abilities (or lack thereof) to reconcile the test scores and determine which ones were credible.”). In light of the record evidence, the state court's reliance on Dr. King's expert opinion, which was corroborated by the record, cannot be said to be an unreasonable determination based on the facts.[16] See Smith v. State, 213 So.3d 264, 270-71 (Ala.Crim.App.2009), remanded on other grounds, Ex parte Smith, 213 So.3d 313 (Ala. 2010) (court looked beyond test scores to the record evidence in resolving conflicting expert opinions). Thus, the Court cannot say that “no fair minded jurist” could conclude that Reeves failed to establish he suffered from significant sub-average intellectual functioning based on the entirety of the record, and neither was the decision contrary to, or an unreasonable application of, clearly established Supreme Court precedent. Accordingly, under AEDPA this Court is barred from granting habeas relief.

         b. Significant or Substantial Deficits in Adaptive Behavior.

         Turning to the second prong of establishing intellectual disability, Reeves must show that he has significant limitations in adaptive functioning in at least two skill areas. Due to Reeves's scores being within the margin of error, Atkins and Hall require that Reeves be allowed to present evidence of his adaptive functioning - which clearly he was allowed to do evidenced by the two-day evidentiary hearing, briefing opportunities, and the introduction of hundreds of pages of school, medical, mental health, and detention records. In affirming the Circuit Court's dismissal of Reeves's intellectual disability claim, the Alabama Court of Criminal Appeals stated:

As for the adaptive-functioning prong of intellectual disability, Reeves contends that he "presented evidence of significant deficits in at least six areas of adaptive functioning and therefore [he] meets" the requirements for the second prong of intellectual disability -- significant deficits in at least two areas of adaptive functioning -- and that the circuit court erred in not so finding. (Reeves's brief, p. 45.) Specifically, Reeves asserts that the circuit court "erroneously discounted Dr. Goff's findings by pointing to anecdotal tasks that Mr. Reeves can perform, such as his purported planning of the crime, his earning of Job Corps certificates in welding, brick masonry, and auto mechanics, his extremely brief construction employment, and his purported drug selling activities," none of which, Reeves claims, undermines or refutes Dr. Goff's opinion that Reeves suffers from significant deficits in multiple areas of adaptive functioning. (Reeves's brief, pp. 50-51.) At oral argument, Reeves further argued that even discounting Dr. Goff's testimony, Dr. King testified that on the ABS-RC-II test, Reeves scored in the 25th percentile in the prevocational/vocational, self-direction, and domestic-activity domains, thus conclusively establishing that Reeves suffered significant deficits in those three areas of adaptive functioning. Therefore, Reeves concludes, the circuit court was required to find that he suffered from significant deficits in at least two areas of adaptive functioning.
Reeves's arguments in this regard appear to be based solely on his scores on the ABAS test administered by Dr. Goff and the ABS-RC-II test administered by Dr. King. However, contrary to Reeves's apparent belief, a circuit court is not required to find that a person suffers from significant deficits in adaptive functioning merely because that person's scores on a standardized test indicate such deficits. Just as an IQ test is necessarily imprecise and, therefore, not determinative of the intellectual-functioning prong of intellectual disability, standardized tests for adaptive functioning are also necessarily imprecise and, therefore, are not determinative of the adaptive-functioning prong of intellectual disability. Cf., United States v. Davis, 611 F.Supp.2d 472, 493 (D. Maryland, 2009) (noting that "nearly all methods of assessing an individual's adaptive functioning -- particularly in a retroactive analysis -- are imperfect" and that, therefore, "the typical approach used in forensic assessments of adaptive functioning is to collect information from a multitude of sources and look for convergence of findings in order to confirm one's conclusions"); and Singleton v. Astrue, [No. 2:11CV512-CSC, February 29, 2012) 2012 U.S. Dist. LEXIS 26069 (M.D. Ala. 2012) (not reported) (noting that scores on the ABAS-II test are not determinative as to adaptive functioning for purposes of qualification for social security disability). Although standardized tests for adaptive functioning are certainly useful in assessing a person's adaptive functioning, a court should assess such test scores in light of the circumstances of each case and in light of all other relevant evidence regarding adaptive functioning, including the person's actions at the time of the crime.
In this case, the evidence regarding Reeves's adaptive functioning was conflicting. Although Reeves scored low in the domains of domestic activity, self-direction, and work on the ABS-RC-II test administered by Dr. King and in the areas of self-direction, work, leisure activities, health and safety, self-care, and functional academics on the ABAS test administered by Dr. Goff, thus indicating significant deficits in those areas of adaptive functioning, other evidence was presented that either called into question the validity of those scores and/or indicated that Reeves's deficits in those areas were not, in fact, significant.
For example, Dr. King testified that Reeves scored in the 25th percentile in the domain of domestic activity because Reeves had never been required to do any type of domestic activity growing up and had been incarcerated since he was 18 years old. Dr. Goff testified that it is not unusual for someone who is incarcerated to have low adaptive functioning. Dr. King also testified that he would have scored Reeves higher in the self-direction domain if he had known at the time that he evaluated Reeves that, from an early age, Reeves had been "involved in a lot of drug activity and was actually directing the behaviors and activities of others in this drug related activity." (R. 231-32.) Additionally, Reeves was described in his juvenile mental-health records as "extremely goal-directed," even at a young age. (C. 1556.)
Dr. King further testified that he believed that Reeves's low score in the work domain was because Reeves "did not get to the age where he might be able to master use of complex job tools or equipment" before he went to prison, and because school records indicated that Reeves often missed school and had "pretty poor school habits." (R. 230-31.) Dr. Goff concurred, stating that Reeves's deficit in the work area "may be because he had a lack of opportunity." (R. 62.) Dr. Goff further testified that the validity of Reeves's low score in this area was questionable in light of the fact that Beverly Seroy, the person to whom he administered the ABAS test, had simply guessed on the majority of questions in this area. Additionally, as the circuit court noted in its order, Reeves had obtained certificates in brick masonry, welding, and automobile mechanics, all of which require some level of technical skill, and the record indicates that Reeves held a construction job while his brother was incarcerated and that he was a good employee. Furthermore, the evidence indicated that Reeves's "poor school habits" were more a product of his defiant behavior in school than of any deficits in adaptive functioning.
Additionally, although Reeves scored low in the health and safety, self-care, and leisure-activity areas on the ABAS test administered by Dr. Goff, on the ABS-RC-II test administered by Dr. King, Reeves achieved the highest score possible in the domain of independent functioning, which included such things as self-care and health and safety, and Reeves also scored high in the domains of responsibility and socialization. Moreover, the evidence indicated that Reeves sold drugs to make money and that he used that money to buy personal belongings for himself, including a car, and to help pay the household bills.
Finally, Reeves scored in the 5th percentile in the area of functional academics on the ABAS test administered by Dr. Goff, and Dr. Goff testified that Reeves was functionally illiterate and could read only at a third-grade level and, therefore, that Reeves suffered from a significant deficit in this area. However, Dr. Goff indicated that the ability to read at about a fifth- or sixth-grade level would not qualify as a significant deficit in functional academics. Dr. King testified that Reeves was able to read at a fifth-grade level, thus indicating that Reeves did not have a significant deficient in functional academics.
Simply put, the circuit court in this case was faced with conflicting evidence regarding Reeves's adaptive functioning, including conflicting expert testimony. Reeves's expert, Dr. Goff, testified that Reeves suffered from significant deficits in six areas of adaptive functioning. On the other hand, the State's expert, Dr. King, indicated that, although Reeves scored low on the ABS-RC-II test in three areas of adaptive functioning, those scores were questionable for various reasons. It was for the circuit court to resolve the conflicting evidence and the conflicting expert testimony, and it obviously resolved the conflicts adversely to Reeves. In doing so, the court appropriately looked at evidence regarding Reeves's adaptive functioning other than the expert testimony -- such as Reeves's technical abilities in brick masonry, welding, and automobile mechanics; Reeves's ability to work construction and do so reliably when he was not around his brother, Julius; Reeves's participation in a drug-sale enterprise in which he was able to make thousands of dollars a week that he then used to purchase personal items and a car; and particularly Reeves's cold and calculated actions surrounding the murder, including planning the robbery with his codefendants, hiding incriminating evidence after he had shot the victim, splitting the proceeds of the robbery with his codefendants, and bragging about the murder, claiming that he would earn a "teardrop" - a gang tattoo indicating that a gang member had killed someone - for the murder See, e.g., Ex parte Smith, [Ms. 1080973, October 22, 2010] 213 So.3d 313, 2010 Ala. LEXIS 210 (Ala. 2010) ("We find especially persuasive Smith's behavior during the commission of these murders.") There is ample evidence in the record to support the circuit court's finding that Reeves did not suffer from significant deficits in at least two areas of adaptive functioning, and we will not disturb the circuit court's resolution of the conflicting evidence. Therefore, we find no abuse of discretion on the part of the circuit court in finding that Reeves failed to prove by a preponderance of the evidence that he suffered from significant deficits in at least two areas of adaptive functioning.

Reeves v. State, 226 So.3d 711, 741-43 (Ala.Crim.App.2016).

         Having reviewed the record in this matter, the Circuit Court did not make an unreasonable factual determination that Reeves failed to establish significant subaverage intellectual functioning. “Alabama courts routinely look to factors besides test scores to evaluate whether a defendant has met his burden of proving deficiencies in his adaptive behavior.” Smith v. Dunn, 2:13-CV-00557-RDP, 2017 U.S. Dist. LEXIS 45274, *93-95 (N.D. Ala., S.D., March 28, 2017) (referencing Ex parte Perkins, 851 So.2d at 456 (finding it instructive that Perkins maintained interpersonal relationships and had a job for a short period when analyzing his "adaptive behavior"); Lewis v. State, 889 So.2d 623, 698 (Ala.Crim.App.2003) ("the nature and circumstances surrounding the crimes in this case - including Lewis's articulate and detailed statement to the police - suggest goal-directed behavior, thus indicating that Lewis does not suffer from deficits in adaptive behavior.")). This practice was supported by Reeves's expert, Dr. Goff, as well. Dr. Goff explained that the concern regarding adaptive functioning “is whether it's an impediment to functioning in the community or to functioning on a day-today basis.” (Doc. 23-24 at 54-55, Vol. 24, JR-85, pp. 53-54). Dr. Goff further explained:

If one has an IQ of 64 but is working at the Coca-cola plant, reads well enough to read the newspaper, drives and car, does all of these other things and doesn't demonstrate any of these adaptive skills deficits, then you don't make the diagnosis. He has to have some deficits in some areas in order for the diagnosis to hold.

(Doc. 23-24 at 55; Vol. 24, JR-85, p. 54). Accordingly, the state courts' consideration of the record was neither impermissible nor unreasonable. See Tharpe v. Warden, 834 F.3d 1323 (11th Cir. 2016) (overruled on other grounds) (Where expert opinions were conflicting as to defendant's adaptive deficiencies, state courts did not err in viewing the entire record in making a determination regarding adaptive behavior.). Reeves has not shown that the deficiencies in his adaptive functioning were so significant "that no fair minded jurist could reasonably conclude" that he had failed to prove that his impaired behavior qualified him as intellectually disabled for purposes of Alabama's death penalty law.[17] Accordingly, the state court's decision was not unreasonable determination of the facts in light of the evidence presented at the Rule 32 hearing and was not contrary to or an unreasonable application of clearly established Supreme Court precedent.

         c. Function deficits manifested before age 18.

         Reeves argues that his intellectual disability manifested before the age of 18, and Respondent argues that Reeves has failed to prove the same. While the record again reflects conflicting expert testimony on this issue, [18] the state courts failed to address the merits of this prong. Given that Alabama requires a positive finding of all three prongs of the Perkins test in order to establish intellectual disability, and the State determined that Reeves has failed to establish two of the prongs (significant subaverage intellectual and adaptive functioning), it is unnecessary for the Court to discuss the merits of the third prong.

         2. Whether the Constitutional Right to Due Process was Denied by the Circuit Court's Verbatim Adoption of Language from the State's Proposed Order Denying Reeves' Atkins Claim.

         Petitioner Reeves contends that the Circuit Court adopted, word-for-word, the State's proposed order denying Reeves's intellectual disability claim in its denial of his Rule 32 petition in violation of his right to due process. Reeves presented this claim to the Alabama Court of Criminal Appeals, and, in finding no error in the verbatim adoption, it stated:

“Alabama courts have consistently held that even when a trial court adopts verbatim a party's proposed order, the findings of fact and conclusions of law are those of the trial court and they may be reversed only if they are clearly erroneous." McGahee v. State, 885 So.2d 191, 229-30 (Ala.Crim.App.2003). "While the practice of adopting the state's proposed findings and conclusions is subject to criticism, the general rule is that even when the court adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous." Bell v. State, 593 So.2d 123, 126 (Ala.Crim.App.1991). "[T]he general rule is that, where a trial court does in fact adopt the proposed order as its own, deference is owed to that order in the same measure as any other order of the trial court." Ex parte Ingram, 51 So.3d 1119, 1122 (Ala. 2010). Only "when the record before this Court clearly establishes that the order signed by the trial court denying postconviction relief is not the product of the trial court's independent judgment" will the circuit court's adoption of the State's proposed order be held erroneous. Ex parte Jenkins, 105 So.3d 1250, 1260 (Ala. 2012).

Reeves v. State, 226 So. 3d. 711, 723-24 (Ala.Crim.App.2016).

         “[T]he practice of adopting verbatim findings of fact prepared by the prevailing party in the context of a death penalty case is especially troublesome, given that factfinding procedures in capital proceedings are to "aspire to a heightened standard of reliability," Jefferson v. Sellers, 250 F.Supp.3d 1340, 1351-1352 (N.D.Ga. 2017) (citing Ford v. Wignwright, 477 U.S. 399, 411, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). While the practice is condemned, reasoning it leads to “an appearance of impartiality”, Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1373 n.46 (11th Cir. 1997), Reeves offers no authority for the proposition that the practice, in-and-of-itself, by a state postconviction court warrants habeas relief. Clemons v. Thomas, 2:10-CV-02218-LSC, 2016 U.S. Dist. LEXIS 40104, *27-28, 2016 WL 1180113 (N.D. Ala., S.D., March 28, 2016). “[W]hen the trial judge adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous. Anderson v. Bessemer City, 470 U.S. 564, 572, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (citation omitted).

         A review of the trial court's order reflects that the section titled, “Claim that Reeves is Mentally Retarded” is identical to the state's proposed order. (Doc. 23-26 at 93-95, 105-114; Vol. 26, JR-87, pp. 1-3, 13-21). Reeves therefore contends that the trial court's order was not the independent judgment of the trial court and clearly erroneous, evidenced most strongly by the omission of the mentioning of the IQ score of 68 and contrary to established law because the adopted order was unsolicited and drafted before the Court reached a conclusion on the issue of Reeves's intellectual disability. Reeves relies on the reasoning of Anderson to support that the Alabama Criminal Court of Appeals unreasonably applied federal law in upholding the Circuit Court's verbatim adoption.

         In Anderson, after a two-day trial, the trial court issued a memorandum explaining the rationale for its findings; the trial court then “requested that petitioner's counsel submit proposed findings of fact and conclusions of law expanding upon those set forth in the memorandum.” Anderson, 470 U.S. at 568. The trial court then requested and received a response from respondent objecting to the proposed findings. Id. The Supreme Court found the trial court's adoption of petitioner's proposed findings of fact and conclusions of law, was not “uncritically accepted findings prepared without judicial guidance by the prevailing party” because

[t]he court itself provided the framework for the proposed findings when it issued its preliminary memorandum, which set forth its essential findings and directed petitioner's counsel to submit a more detailed set of findings consistent with them. Further, respondent was provided and availed itself of the opportunity to respond at length to the proposed findings. Nor did the District Court simply adopt petitioner's proposed findings: the findings it ultimately issued -- and particularly the crucial findings . . . vary considerably in organization and content from those submitted by petitioner's counsel. Under these circumstances, we see no reason to doubt that the findings issued by the District Court represent the judge's own considered conclusions. There is no reason to subject those findings to a more stringent appellate review than is called for by the applicable rules.

Id. at 572-73.

         As previously mentioned, the trial court's order is identical to the State's proposed order in the section titled “Claim that Reeves is Mentally Retarded”. However, there is sufficient reason to conclude that the trial court's order represents an independent decision based on the additional facts that the trial court articulated in its order denying Reeves's Rule 32 petition. For instance, the trial court expounded on the finding of facts, adding that Brenda Suttles testimony illustrated a premeditated plan on the part of Reeves rather than an impulsive act. (Doc. 23-16 at 136; Vol. 16, JR-65, p. 2). The trial court then articulated the testimony supporting its reasoning. The trial court's order also contains findings of facts from the penalty phase which are absent from the State's proposed order, and notably summaries of the testimony of Detective Grindle, Marzetta Reeves, and Dr. Kathaleen Ronan. (Doc. 23-16 at 137-141; Vol. 16, JR-65, pp. 3-7). Additionally, the findings of facts from the Rule 32 hearing are completely different in organization and wording and identify Reeves's IQ score of 68. (Doc. 23-16 at 141-145, ...

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