Saunders v. Stewart

          ORDER

          KRISTI K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE

         Timothy Wade Saunders, a death row inmate at Holman Correctional Facility in Atmore, Alabama, challenges the validity of his 2005 conviction in Baldwin County, Alabama Circuit Court, for which the trial court sentenced Saunders to death by lethal injection. Respondent Cynthia Stewart serves as Holman Correctional Facility's warden.^[1] Below, the Court considers Saunders's amended petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254.^[2] As the Court will explain, Saunders's amended petition is due to be DENIED.

         I. Background

         A. Facts of the Underlying Crime^[3]

         On July 9, 2004, Timothy Wade Saunders murdered 77-year-old Melvin Clemons and severely injured Mr. Clemons' wife, Agnes Clemons. Earlier, Saunders borrowed a crowbar from Mr. Clemons. When Saunders failed to return the crowbar, Mr. Clemons left his house to go outside. He did not return. Later, Mrs. Clemons found Saunders sitting on the Clemons' porch. Noticing Saunders sweating profusely, Mrs. Clemons opened her door and asked Saunders if he was OK. He informed her that he was suffering an asthma attack. Mrs. Clemons took a glass of water and washcloth to him. Saunders asked to use her restroom, which Mrs. Clemons allowed him to do. Later, as Mrs. Clemons attempted to call Saunders's mother, as he requested, he approached her from behind. Saunders proceeded to rob, physically intimidate, and assault Mrs. Clemons. At one point, after dragging Mrs. Clemons throughout the home, repeatedly striking her, and blocking her from leaving the bathroom, Saunders smoked crack cocaine. He also unsuccessfully tried to play cards with Mrs. Clemons. Then he asked her to pose provocatively, like the naked women depicted on the cards posed. She refused, telling “Saunders that she would fight him until she died; that he was not going to make her pose; and that she wanted to leave the bathroom because he was scaring her. Saunders then moved his leg and allowed her to leave the bathroom.” Saunders v. State, 10 So.3d 53, 64 (Ala.Crim.App.2007) (Saunders I).

         Mrs. Clemons managed to call police after breaking free and obtaining a shotgun. Saunders fled. At 9:48 that night, Mrs. Clemons telephoned 911. Police arrived to find Mr. Clemons'

body approximately 50 to 75 yards from the residence, near a hedgerow that separated the Clemons[‘] property from a mobile home park. Mr. Clemons appeared to have sustained severe head wounds and was dead when the officers found him. One of the pockets on Mr. Clemons's pants was turned inside out and there appeared to be an area of blood on the pocket. An opened knife sheath was on Mr. Clemons's belt, and a folded or unopened knife was found under Mr. Clemons's body. In addition, a crowbar with what appeared to be blood, tissue, and hair on it was found on the back patio, leaning against the Clemons[‘] house.

Id. at 65-66.

         Dr. Kathleen Enstice, who performed the autopsy on Mr. Clemons' body, concluded Mr. Clemons' cause of death was blunt-force trauma to the head. The injuries Mrs. Clemons sustained resulted in her hospitalization for several days. She suffered a concussion, severe bruising, and pulmonary contusions. The following day, she experienced heart failure. She spent a portion of her hospitalization in the intensive-care unit.

         B. Trial Court Proceedings and Saunders's Conviction and Sentence

         A Baldwin County, Alabama grand jury indicted Saunders in a five-count indictment:

robbery-murder, a violation of section 13A-5-40(a)(2) of the Code of Alabama (1975), and burglary-murder, a violation of section 13A-5-40(a)(5)[;] one count of attempted murder, a violation of sections 13A-4-2 and 13A-6-2; one count of attempted rape, a violation of sections 13A-4-2 and 13A-6-61(a)(1); and one count of burglary, a violation of section 13A-7-5.

(Doc. 47 (Respondent's Response) at 20) (citing 41-46 (Timothy W. Saunders's Indictment) at 19).^[4] Two court-appointed attorneys, Thomas Dasinger and Samuel Jovings (“trial counsel”), represented Saunders during the trial. Saunders initially pleaded not guilty by reason of mental defect, but later that plea was withdrawn, and he pleaded not guilty. (Doc. 41-46 at 10-11).

         Trial began on or about August 24, 2005. (Id. at 8). Saunders testified as the only witness for the defense. The case was submitted to the jury on August 26, 2005. (Id. at 8.) The jury convicted Saunders of both capital murder counts (robbery-murder and burglary-murder) and of attempted murder. It acquitted Saunders of attempted rape. (Id. at 8; id. at 142-45).

         The penalty phase began on August 31, 2005. (Id. at 9; id. at 146). Saunders presented four witnesses during the penalty phase: Saunders's sister, a correctional officer, a clinical psychologist, and a social worker. (Doc. 47 at 21-22). The jury unanimously recommended Saunders be sentenced to death.^[5] The trial court subsequently sentenced Saunders to die by lethal injection. (Doc. 41-25 at 21).

         C. Procedural Background

         Following imposition of sentence, trial counsel successfully moved to withdraw in open court. (Doc. 41-25 at 22-23; Doc. 41-46 at 195-96). On December 21, 2008, the CCA affirmed Saunders's convictions and sentence. Saunders I, 10 So.3d 53. The Alabama Supreme Court denied his petition for writ of certiorari. (Doc. 41-33 at 2). The United States Supreme Court also denied Saunders's petition for writ of certiorari, on May 26, 2009. Saunders v. Alabama, 129 S.Ct. 2433 (2009) (mem.).

         The Respondent described Saunders's postconviction proceedings as “Gordian in their travels through the various courts.” (Doc. 47 at 26). This apparently resulted from an administrative mishap. The parties first became aware of the state circuit court's summary dismissal of Saunders's first petition for postconviction relief on July 9, despite the court issuing the order on February 11. (Doc. 47-6 at 22-23, ¶ 4). Saunders filed an unopposed motion for an out-of-time appeal. (Id. at 2-37). The CCA dismissed the appeal in June 2011, concluding the petition was void due to Saunders neither paying a filing fee nor applying to proceed in forma pauperis.

         Saunders then filed a second Rule 32 petition, which was both an out-of-time appeal and unopposed. Finally, Saunders filed a third Rule 32 petition. (Id. at 327). The CCA ordered this petition to be held in abeyance pending the conclusion of Saunders's second appeal. (Id. at 334).

         The CCA consolidated all three Rule 32 petitions for appeal. (Id. at 336). It affirmed the circuit court's summary dismissal of Saunders's Rule 32 petition. (Doc. 41-41 at 2-45; Saunders v. State, 249 So.3d 1153 (2016) (Saunders II). The Alabama Supreme Court denied Saunders's petition for writ of certiorari on September 22, 2017. (Doc. 41-45 at 2).^[6]

         Saunders originally filed his petition for writ of habeas corpus in 2010, (Doc. 1), with a motion to hold the petition in abeyance pending ongoing state Rule 32 proceedings. (Doc. 2). The Respondent did not oppose Saunders's motion for stay and abeyance (Doc. 5), and the Court granted Saunders's motion. (Doc. 6). It later ordered the parties to file joint status reports. (Doc. 7). On October 8, 2017, Saunders's counsel requested the Court lift the stay and enter a scheduling order (Doc. 37), which the Court granted. (Doc. 39).

         II. Overview of Relevant Law

         A. 28 U.S.C. § 2254 and AEDPA

         Title 28 U.S.C. § 2254 governs the authority of the federal courts to consider applications for writs of habeas corpus submitted by state prisoners. Henderson v. Campbell, 353 F.3d 880, 889-90 (11th Cir. 2003). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) amended § 2254, and it became effective April 24, 1996. Id. AEDPA applies to all petitions filed after its effective date. Id. Since Saunders filed this petition after April 24, 1996, AEDPA applies. 28 U.S.C. § 2254(d) provides that:

(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 [f]ederal 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.

         In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court recognized that “§ 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court.” Id. at 412.

         A state-court decision is contrary to the Supreme Court's clearly established precedent “(1) if the state court applies a rule that contradicts the governing law as set forth in Supreme Court case law, or (2) if the state court confronts a set of facts that are materially indistinguishable from those in a decision of the Supreme Court and nevertheless arrives at a result different from Supreme Court precedent.” Stephens v. Hall, 407 F.3d 1195, 1202 (11th Cir. 2005) (quoting Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000)).

         A state court decision involves an unreasonable application of Supreme Court precedent “if the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case.” Williams, 529 U.S. at 407. In addition, a state court decision results in an unreasonable application of Supreme Court precedent “if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id.

         “[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). As a result, “even if ‘[r]easonable minds reviewing the record might disagree' about the finding in question, ‘on habeas review that does not suffice to supersede the trial court's ... determination.'” Id., 558 U.S. at 301 (quoting Rice v. Collins, 546 U.S. 333, 342 (2006)).

         “[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the prisoner's claim on the merits.” Greene v. Fisher, 565 U.S. 34, 38336 (2011) (citing Cullen v. Pinholster, 563 U.S. 170, 171 (2011)). The Act, as amended, presumes as correct all determinations of factual issues made by a state court and places the burden upon the petitioner of rebutting such a presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e).

         B. Exhaustion and Procedural Default

         “The habeas statute requires applicants to exhaust all available state law remedies.” Jimenez v. Fla. Dep't of Corr., 481 F.3d 1337, 1342 (11th Cir. 2007). This provides “state courts an opportunity to review and correct the claimed violations of his federal rights.” Id. To exhaust the claims in state court, “a federal claim must be fairly presented to the state courts.” McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005). The Eleventh Circuit requires “a petitioner present[] his claims to the state court ‘such that a reasonable reader would understand each claim's particular legal basis and specific factual foundation.'” Id. (quoting Kelley v. Sec'y Dept. of Corr., 377 F.3d 1317, 1344-45 (11th Cir. 2004)).

         A claim is procedurally defaulted when the petitioner failed to properly exhaust his or her state remedies. Woodford v. Ngo, 548 U.S. 81, 92 (2006).

Thus, if state-court remedies are no longer available because the prisoner failed to comply with the deadline for seeking state-court review or for taking an appeal, those remedies are technically exhausted, but exhaustion in this sense does not automatically entitle the habeas petitioner to litigate his or her claims in federal court. Instead, if the petitioner procedurally defaulted those claims, the prisoner generally is barred from asserting those claims in a federal habeas proceeding.

Id. at 93 (internal citation omitted). “The purpose of this doctrine is to ensure that state prisoners not only become ineligible for state relief before raising their claims in federal court, but also that they give state courts a sufficient opportunity to decide those claims before doing so.” O'Sullivan v. Boerckel, 526 U.S. 838, 853 (1999) (Souter, J. concurring).

         Although procedurally defaulted claims are generally barred from habeas review, certain exceptions exist. These exceptions include instances in which the petitioner demonstrates (1) both cause and prejudice or (2) fundamental miscarriage of justice. Bishop v. Warden, GDCP, 726 F.3d 1243, 1258 (11th Cir. 2013). See also Coleman v. Thompson, 501 U.S. 722, 750 (1991), holding modified by Martinez v. Ryan, 566 U.S. 1 (2012) (“In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.”). “As a general matter, ‘cause' for procedural default exists if ‘the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.'” Bishop, 726 F.3d at 1258 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). “To establish ‘prejudice,' a petitioner must show that there is at least a reasonable probability that the result of the proceeding would have been different.” Henderson, 353 F.3d at 892.

         An alternative way to overcome the procedural default's general bar is by demonstrating a fundamental miscarriage of justice. This “narrowly-drawn[, ]” Butts v. GDCP Warden, 850 F.3d 1201, 1211 (11th Cir. 2017), cert. denied sub nom. Butts v. Sellers, 138 S.Ct. 925 (2018), exception arises when a petitioner proves “‘a constitutional violation that has probably resulted in the conviction of one who is actually innocent.'” Id. (quoting Hill v. Jones, 81 F.3d 1015, 1023 (11th Cir. 1996)) (brackets omitted). To successfully assert this argument on a sentencing- phase claim, the petitioner must demonstrate “‘but for constitutional error at his sentencing hearing, no reasonable juror could have found him eligible for the death penalty under [state] law.'” Id.

         C. Relevant Alabama State Court Procedural Rules

         The Alabama Rules of Criminal Procedure and the Alabama Rules of Appellate Procedure govern the process by which a petitioner may seek direct and collateral relief in Alabama state courts. Those rules, in turn, apply to a petitioner's federal habeas claim because failure to abide by the rules may result in a claim's procedural default, thus barring habeas review. Because the CCA held several of Saunders's claims were procedurally defaulted, the Court provides a general overview of these relevant rules.

         Alabama Rule of Criminal Procedure 32 applies to Post-Conviction Remedies. After a criminal defendant exhausts all direct appeals, Rule 32 offers rules that govern Alabama's collateral review process. Rule 32.1 defines the scope of remedies, and it provides that

any defendant who has been convicted of a criminal offense may institute a proceeding in the court of original conviction to secure appropriate relief on the ground that:

(a) The constitution of the United States or of the State of Alabama requires a new trial, a new sentence proceeding, or other relief.

(b) The court was without jurisdiction to render judgment or to impose sentence.

(c) The sentence imposed exceeds the maximum authorized by law or is otherwise not authorized by law.

(d) The petitioner is being held in custody after the petitioner's sentence has expired.

(e) Newly discovered material facts exist which require that the conviction or sentence be vacated by the court, because:

(1) The facts relied upon were not known by the petitioner or the petitioner's counsel at the time of trial or sentencing or in time to file a posttrial motion pursuant to Rule 24, or in time to be included in any previous collateral proceeding and could not have been discovered by any of those times through the exercise of reasonable diligence;

(2) The facts are not merely cumulative to other facts that were known;

(3) The facts do not merely amount to impeachment evidence;

(4) If the facts had been known at the time of trial or of sentencing, the result probably would have been different; and

(5) The facts establish that the petitioner is innocent of the crime for which the petitioner was convicted or should not have received the sentence that the petitioner received.

(f) The petitioner failed to appeal within the prescribed time from the conviction or sentence itself or from the dismissal or denial of a petition previously filed pursuant to this rule and that failure was without fault on the petitioner's part.

A petition that challenges multiple judgments entered in more than a single trial or guilty-plea proceeding shall be dismissed without prejudice.

Ala. R. Crim. P. 32.1. Rule 32.2 specifies instances under which relief is unavailable to a petitioner. It provides as follows:

(a) Preclusion of Grounds. A petitioner will not be given relief under this rule based upon any ground:

(1) Which may still be raised on direct appeal under the Alabama Rules of Appellate Procedure or by posttrial motion under Rule 24; or

(2) Which was raised or addressed at trial; or

(3) Which could have been but was not raised at trial, unless the ground for relief arises under Rule 32.1(b); or

(4) Which was raised or addressed on appeal or in any previous collateral proceeding not dismissed pursuant to the last sentence of Rule 32. 1 as a petition that challenges multiple judgments, whether or not the previous collateral proceeding was adjudicated on the merits of the grounds raised; or

(5) Which could have been but was not raised on appeal, unless the ground for relief arises under Rule 32.1(b).

(b) Successive Petitions. If a petitioner has previously filed a petition that challenges any judgment, all subsequent petitions by that petitioner challenging any judgment arising out of that same trial or guilty-plea proceeding shall be treated as successive petitions under this rule. The court shall not grant relief on a successive petition on the same or similar grounds on behalf of the same petitioner. A successive petition on different grounds shall be denied unless (1) the petitioner is entitled to relief on the ground that the court was without jurisdiction to render a judgment or to impose sentence or (2) the petitioner shows both that good cause exists why the new ground or grounds were not known or could not have been ascertained through reasonable diligence when the first petition was heard, and that failure to entertain the petition will result in a miscarriage of justice.

(c) Limitations Period. Subject to the further provisions hereinafter set out in this section, the court shall not entertain any petition for relief from a conviction or sentence on the grounds specified in Rule 32.1(a) and (f), unless the petition is filed: (1) In the case of a conviction appealed to the Court of Criminal Appeals, within one (1) year after the issuance of the certificate of judgment by the Court of Criminal Appeals under Rule 41, Ala.R.App.P.; or (2) in the case of a conviction not appealed to the Court of Criminal Appeals, within one (1) year after the time for filing an appeal lapses; provided, however, that the time for filing a petition under Rule 32.1(f) to seek an out-of-time appeal from the dismissal or denial of a petition previously filed under any provision of Rule 32.1 shall be six (6) months from the date the petitioner discovers the dismissal or denial, irrespective of the one-year deadlines specified in the preceding subparts (1) and (2) of this sentence; and provided further that the immediately preceding proviso shall not extend either of those one-year deadlines as they may apply to the previously filed petition. The court shall not entertain a petition based on the grounds specified in Rule 32.1(e) unless the petition is filed within the applicable one-year period specified in the first sentence of this section, or within six (6) months after the discovery of the newly discovered material facts, whichever is later; provided, however, that the one-year period during which a petition may be brought shall in no case be deemed to have begun to run before the effective date of the precursor of this rule, i.e., April 1, 1987.

(d) Claims of Ineffective Assistance of Counsel. Any claim that counsel was ineffective must be raised as soon as practicable, either at trial, on direct appeal, or in the first Rule 32 petition, whichever is applicable. In no event can relief be granted on a claim of ineffective assistance of trial or appellate counsel raised in a successive petition.

Ala. R. Crim. P. 32.2.

         Rule 32.6(b) mandates each claim be specifically pleaded, with a clear and specific statement of the grounds upon which relief is sought. Rule 32.7(d) permits summary dismissal of petitions and provides that

If the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition. Leave to amend shall be freely granted. Otherwise, the court shall direct that the proceedings continue and set a date for hearing.

         Under Alabama case law, as the CCA has held, “‘Where a simple reading of the petition for post-conviction relief shows that, assuming every allegation of the petition to be true, it is obviously without merit or is precluded, the circuit court may summarily dismiss that petition.'” Bryant v. State, 181 So.3d 1087, 1102 (Ala.Crim.App.2011) (emphasis in original) (internal brackets omitted) (quoting Bishop v. State, 608 So.2d 345, 347-48 (Ala. 1992)). See also Id. (quoting Hodges v. State, 147 So.3d 916, 946 (Ala.Crim.App.2007)) (“[A] postconviction claim is ‘due to be summarily dismissed [when] it is meritless on its face[.]'”).

         Failure to conform to the aforementioned rules sometimes results in improper exhaustion and precludes habeas review. At times, the Respondent cites the CCA's holding with respect to these rules in order to argue Saunders's habeas review is precluded on certain claims Saunders raises.

         D. Ineffective Assistance of Counsel Habeas Review

         Saunders raises multiple ineffective assistance of counsel claims. “The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment . . . .” Strickland v. Washington, 466 U.S. 668, 684-85 (1984). “The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment . . . .” Id. at 685.

         “When conducting an ineffectiveness review, the court's role ‘is not to grade counsel's performance.'” Haliburton v. Sec'y For Dep't Of Corr., 342 F.3d 1233, 1243 (11th Cir. 2003) (quoting Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000)). Strickland, the landmark ineffective assistance of counsel case, sets a “high bar” for petitioners. Padilla v. Kentucky, 559 U.S. 356, 371 (2010). The present inquiry involves two components, both of which a petitioner must satisfy in order to successfully assert an ineffective assistance of counsel claim. As the Supreme Court has previously described,

A petitioner must show that counsel's performance was deficient, and that the deficiency prejudiced the defense. To establish deficient performance, a petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness. We have declined to articulate specific guidelines for appropriate attorney conduct and instead have emphasized that the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.

Wiggins v. Smith, 539 U.S. 510, 521 (2003) (internal citations, brackets, and quotation marks omitted). In order to show that the deficient performance prejudiced the defense, a petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. 668, 694 (1984).

         Strickland's high bar, coupled with § 2254(d)'s deference, imposes an even higher bar. See Harrington v. Richter, 562 U.S. 86, 105 (2011) (“Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult.”). As the Supreme Court has held

The standards created by Strickland and § 2254(d) are both “highly deferential, ” id., at 689, 104 S.Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is “doubly” so, Knowles, 556 U.S., at 123, 129 S.Ct. at 1420. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S., at 123, 129 S.Ct. at 1420. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.

Id.^[7] The Eleventh Circuit has further elaborated on this difficult, but not insurmountable, burden stating that,

When faced with an ineffective assistance of counsel claim that was denied on the merits by the state courts, a federal habeas court “must determine what arguments or theories supported or, [if none were stated], could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” [Harrington, 562 U.S. at 102], 131 S.Ct. at 786. So long as fairminded jurists could disagree about whether the state court's denial of the claim was inconsistent with an earlier Supreme Court decision, federal habeas relief must be denied. Id., 131 S.Ct. at 786. Stated the other way, only if “there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents” may relief be granted. Id., 131 S.Ct. at 786.

Johnson v. Sec'y, DOC, 643 F.3d 907, 911 (11th Cir. 2011). As a result of this difficult burden, “it will be a rare case in which an ineffective assistance of counsel claim that was denied on the merits in state court is found to merit relief in a federal habeas proceeding.” Id.

         The circuit court dismissed all of Saunders's ineffective assistance of counsel claims on the pleadings and without conducting an evidentiary hearing. The CCA affirmed. “Summary dismissals under Rules 32.6(b) and 32.7(d) are adjudications on the merits and subject to AEDPA review.” Daniel v. Comm'r, Alabama Dep't of Corr., 822 F.3d 1248, 1260 (11th Cir. 2016). Thus, AEDPA requires the Court evaluate whether the CCA's determination was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[, ]” 28 U.S.C. § 2254(d)(1); Borden v. Allen, 646 F.3d 785, 817-18 (11th Cir. 2011), or if the CCA's decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).

         To do so, the Court must follow Eleventh Circuit instructions in Borden: “examine the ineffective assistance of counsel allegations that were before the Court of Criminal Appeals under the standards set forth by AEDPA. ... That is, accepting as true the facts asserted in support of [petitioner's] ineffective assistance of counsel claims, did the Alabama Court of Criminal Appeals unreasonably apply Strickland and its progeny?” Borden, 646 F.3d at 815 (emphasis in original).^[8]

         The Eleventh Circuit in Daniel confronted an ineffective assistance of counsel claim that the Alabama state courts had dismissed for failure to plead the claim with sufficient specificity. It addressed this summary dismissal under the following rubric:

Thus, AEDPA requires us “to evaluate whether the Court of Criminal Appeals's determination that [Mr. Daniel's] relevant ineffective assistance of counsel claims were due to be dismissed for failure to state a claim with sufficient specificity under Rule 32.6(b) was ‘contrary to, or involved an unreasonable application of, clearly established Federal law, '” Borden, 646 F.3d at 817-18 (quoting 28 U.S.C. § 2254(d)(1)), or whether it “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” 28 U.S.C. § 2254(d)(2). See also Powell v. Allen, 602 F.3d 1263, 1273 (11th Cir. 2010) (per curiam) (“AEDPA limits our review to whether the state court's determination that Powell failed to plead sufficient facts in his Rule 32 petition to support a claim of ineffective assistance of counsel was contrary to or an unreasonable application of Supreme Court precedent.”). We must therefore answer two questions to resolve this habeas appeal. First, whether Mr. Daniel's second amended Rule 32 petition and its attached exhibits pleaded enough specific facts that, if proven, amount to a valid penalty phase ineffective assistance of counsel claim. Second, if we answer the first question in the affirmative, we must determine whether the Alabama Court of Criminal Appeals's decision to the contrary was unreasonable under § 2254(d).

Daniel, 822 F.3d at 1261. Here, the CCA similarly affirmed the summary dismissal of Saunders's ineffective assistance of counsel claims. However, it did so because, according to the CCA, Saunders's claims contained “no material issue of fact or law [that] would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings . . .[.]” Ala. R. Crim. P. 32.7(d). The Court must determine whether the CCA's decision that Saunders's claims, as he presented in his Rule 32 petition, does not present a valid ineffective assistance claim was contrary to or an unreasonable application of clearly established federal law or whether it resulted in a decision based on an unreasonable determination of the facts in lights of the evidence presented.

         III. Petitioner's Claims^[9]

         A. Overview

         Saunders's petition raises seventeen bases as grounds supporting the petition for relief. Two bases (ineffective assistance of counsel at both the guilt and penalty phase) include eight subclaims. Saunders presented his claims as follows:

1. MR. SAUNDERS WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT THE GUILT PHASE OF HIS TRIAL.

a. Mr. Saunders's trial counsel was ineffective during the guilt phase because trial counsel failed to discover and present substantial mitigation evidence regarding his drug and alcohol use.

b. Mr. Saunders's trial counsel was ineffective during the guilt phase because even if trial counsel's decision to call Mr. Saunders to testify during the guilt phase was made for strategic reasons, trial counsel's execution of that decision was ineffective at best, and, at worst, tended to establish the inference that Mr. Saunders was guilty of capital murder.

2. MR. SAUNDERS WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT THE PENALTY PHASE OF HIS TRIAL.

a. Mr. Saunders's trial counsel provided ineffective assistance at the penalty phase of the trial by failing to follow up with two individuals who wrote letters on Mr. Saunders's behalf, and to introduce those letters into evidence.

b. Mr. Saunders's trial counsel provided ineffective assistance at the penalty phase of the trial by failing to follow up with Mrs. Clemons, who would have testified that she did not want Mr. Saunders to receive the death penalty.

c. Mr. Saunders's trial counsel provided ineffective assistance at the penalty phase of the trial by failing to investigate and develop evidence of the extreme abuse Mr. Saunders experienced during his childhood, and his own mental illness and drug abuse.

d. Mr. Saunders's trial counsel provided ineffective assistance at the penalty phase of the trial by failing to investigate and present to the jury evidence of the extreme abuse that Mr. Saunders experienced as a child.

e. Mr. Saunders's trial counsel provided ineffective assistance at the penalty phase of the trial by failing to investigate and present to the jury evidence of Mr. Saunders's family's history of mental illness and substance abuse.

f. Mr. Saunders's trial counsel provided ineffective assistance at the penalty phase of the trial by failing to investigate and adequately present evidence of Mr. Saunders's mental illness and drug and alcohol usage.

3. MR. SAUNDERS WAS DENIED DUE PROCESS BECAUSE THE COURT OF CRIMINAL APPEALS' HOLDING THAT THE TRIAL COURT COMPLIED WITH RULE 32 IS IN CONFLICT WITH PRIOR DECISIONS FROM THE ALABAMA COURT OF CRIMINAL APPEALS REQUIRING THE TRIAL COURT TO STATE ITS REASONS WHEN THE DENIAL OF A RULE 32 PETITION IS BASED ON THE COURT'S OWN KNOWLEDGE.

4. MR. SAUNDERS WAS DENIED DUE PROCESS DURING HIS TRIAL BECAUSE JURORS WERE IMPROPERLY EXCUSED FOR CAUSE.

5. THE IMPOSITION OF THE DEATH PENALTY IN THIS CASE CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT DUE TO MR. SAUNDERS'S MENTAL DISABILITY.

6. ALABAMA'S METHOD OF EXECUTION BY LETHAL INJECTION IS CRUEL AND UNUSUAL PUNISHMENT.

7. THE ALABAMA CAPITAL STATUTE IS UNCONSTITUTIONAL ON ITS FACE.

8. THE PROSECUTOR UTILIZED HER PEREMPTORY CHALLENGES IN A RACIALLY DISCRIMINATORY MANNER.

9. IT WAS ERROR TO DENY SUPPRESSION OF A STATEMENT.

10. THERE WAS IMPROPER TESTIMONY ABOUT A LINEUP.

11. THE CORONER TESTIFIED IMPROPERLY.

12. THE HOMICIDE WAS NOT HEINOUS AND CRUEL.

13. IT WAS ERROR TO DENY SUPPRESSION OF A YOUTHFUL OFFENDER FINDING.

14. THERE WAS INSUFFICIENT EVIDENCE TO CONVICT.

15. THE STATE PROSECUTOR USED IMPROPER ARGUMENT.

16. IT WAS ERROR TO REPLACE A JUROR.

17. THE TRIAL COURT MISLED THE SENTENCING JURY AS TO THE IMPORTANCE OF ITS RECOMMENDED SENTENCE.

         B. Analysis

         1. MR. SAUNDERS WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT THE GUILT PHASE OF HIS TRIAL.

         Saunders argues his trial counsel “did not render reasonable effective legal representation during Mr. Saunders's capital murder trial and therefore denied Mr. Saunders his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.” (Doc. 41-1 (Petitioner's Amended Petition) at 29). Saunders details two sub-claims related to the guilt phase. The Court addresses both below.

a. Mr. Saunders's trial counsel was ineffective during the guilt phase because trial counsel failed to discover and present substantial mitigation evidence regarding his drug and alcohol use.

         Saunders's first ineffective assistance of counsel claim relates to trial counsel's performance during the guilt phase. Saunders alleges trial counsel rendered ineffective assistance in the investigation and resulting presentation of information that might have served to mitigate his guilt. Specifically, Saunders claims that his trial counsel inadequately investigated his substance abuse, an investigation he dubs “trifling[.]” (Id. at 34, ¶ 60). He also faults trial counsel for failing to present any evidence of mitigation evidence regarding Saunders'sdrug and alcohol abuse, an amount he describes as “paltry[.]” (Id.).

         The CCA held on collateral appeal that there was no material issue of fact or law within this claim that would entitle Saunders to relief. It therefore upheld the circuit court's summary dismissal of this claim, citing Alabama Rule of Criminal Procedure 32.7(d) (providing that “[i]f the court determines that [if] no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition”).

         First, it held that “[t]he record clearly shows that Saunders's trial counsel did present a great deal of evidence of Saunders's drug use.” Saunders II, 249 So.3d at 1168. The CCA specifically cited (1) trial counsel's opening statement, which included that Saunders smoked crack on the night he murdered Mr. Clemons; (2) Mrs. Clemons' testimony that Saunders smoked crack cocaine twice in her presence; (3) Foley Police Department Sgt. Tony Fuqua's testimony that Saunders informed him that Saunders had a crack cocaine problem; (4) Foley Police Department Lt. David White's testimony that police discovered an ashtray with a smoking pipe in it, along with a baggy containing crack near the Clemons' residence; and (5) Saunders'sown testimony that he purchased crack cocaine on the day he murdered Mr. Clemons. Id. at 1167. The CCA identified five instances during the guilt phase when the jury heard of Saunders's crack use on the night of the murder. This led the CCA to conclude that “[t]he record clearly shows that Saunders's trial counsel did present a great deal of evidence of Saunders's drug use.” Id. at 1168. Second, it held that

To the extent that Saunders argues that counsel was ineffective for failing to present the testimony of an expert on the effects of alcohol and drug abuse, Saunders failed to adequately plead this aspect of this claim. Saunders failed to plead how this evidence should have been presented or what expert should have presented this evidence.

Id.^[10]

         In Alabama, a specific intent to kill is necessary in order to convict someone of capital murder. Shanklin v. State, 187 So.3d 734, 795-96 (Ala.Crim.App.2014). “To negate the specific intent required for a murder conviction, the degree of the accused's intoxication must amount to insanity.” Davis v. State, 740 So.2d 1115, 1121 (Ala.Crim.App.1998). “The degree of intoxication required to establish that a defendant was incapable of forming an intent to kill is a degree so extreme as to render it impossible for the defendant to form the intent to kill.” Smith v. State, 646 So.2d 704, 712-13 (Ala.Crim.App.1994) (quoting Ex parte Bankhead, 585 So.2d 112, 121 (Ala. 1991)).

         Trial counsel repeatedly argued Saunders's crack cocaine use prevented him from forming specific intent. During closing argument, trial counsel argued that “the intoxication caused by him smoking crack cocaine negates the specific intent[, ]” (Doc. 41-12 at 12), and that “the theory of the defense of Mr. Saunders has been, that he never formed the intent to do anything.” (Id. at 15). Trial counsel further stated:

• “If you believe that the crack cocaine negated the intent, you can find him guilty of the manslaughter charge.” (Id. at 18).

• “You hear about crack cocaine and the use and abuse and the effects that it has on people in our society. And I think everyone would agree that if Mr. Saunders never used crack cocaine or never smoked it, we probably wouldn't be here, we probably wouldn't be here.” (Id. at 3).

• “From the very beginning we - as [the State prosecutor] Ms. Newcomb suggested, we're not questioning who did it. We've admitted his responsibility from the very beginning. From the very beginning of this we said, yes, Tim did that. The question this comes down to is the question that revolves around intent.” (Id. at 3-4) (emphasis added).

         As it relates to trial counsel's mitigation defense, Saunders's Rule 32 petition included the following pleadings:

19. During the guilt phase of Mr. Saunders's trial, trial counsel did not call any witnesses who could have testified as to the effect of intoxication, including crack cocaine intoxication, upon a criminal defendant's ability to form the requisite intent necessary for the State to prove a charge of capital murder. Trial counsel called no witness to provide testimony about the interaction between drug and alcohol abuse and untreated mental illness on a criminal defendant's ability to form the requisite intent to commit a capital offense. Trial counsel called no witnesses to provide testimony about Mr. Saunders's inability, given his mental illness, addictions and intoxication, to provide a voluntary, knowing confession.

(Doc. 41-34 at 12, ¶ 19).

92. Mr. Saunders was prejudiced by ineffective assistance of counsel at the guilt and penalty phases at his capital trial. First, trial counsel's deficient performance was. Prejudicial during the guilt -phase of Mr. Saunders's trial as: . . . (d) trial counsel failed to present proof: through appropriate experts, that, due to Mr. Saunders's mental illness, addictions and substance abuse in the 24 hours preceding the crimes made the basis of his complaint, he could not have formed the requisite intent to commit the crimes. for which he was convicted . . . .

(Id. at 28, ¶ 92). He further pled that

93. Counsel's deficient performance was prejudicial at the guilt phase because counsel could have presented compelling evidence to support a lack of intent theory. There is a reasonable probability that but for trial counsel's ineffectiveness Mr. Saunders would not have been convicted of intentional murder.

(Id. at 28, ¶ 93).

         This claim does not entitle Saunders to habeas relief. First, Saunders did not plead that an expert could have testified that his consumption of crack cocaine caused him to become so intoxicated that it amounted to insanity. See Davis, 740 So.2d at 1121 (“To negate the specific intent required for a murder conviction, the degree of the accused's intoxication must amount to insanity.”). The requirement to specifically plead the witness' name and the content of the expert witness' report comports with the analogue rule for federal habeas petitions. As one district court has noted,

Federal habeas corpus petitioners asserting claims of ineffective assistance based on counsel's failure to call a witness (either a lay witness or an expert witness) satisfy the prejudice prong of Strickland only by naming the witness, demonstrating the witness was available to testify and would have done so, setting out the content of the witness's proposed testimony, and showing the testimony would have been favorable to a particular defense.

Freeman v. Dunn, 2018 WL 3235794, at *71 (M.D. Ala. July 2, 2018) (emphasis omitted) (citing Woodfox v. Cain, 609 F.3d 774, 808 (5th Cir. 2010); Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009)). Thus, even if Saunders demonstrated trial counsel's actions fell below the prevailing professional norms at the time, he has not shown the inaction resulted in any prejudice.

         Dr. Brodsky, an expert who testified during the penalty phase, prepared a report submitted on August 15, 2005 that relayed that it is questionable whether Saunders was able to control his actions. But Dr. Brodsky's report did not claim (and Dr. Brodsky would not later testify) that Saunders's degree of insanity rendered it “impossible for [Saunders] to form the intent to kill.” Smith v. State, 646 So. at 712-13 (quoting Ex parte Bankhead, 585 So.2d at 121). Instead, during the subsequent sentencing phase, Dr. Brodsky would testify that

[I]n a state of acute intoxication from alcohol and drugs, it put him in an altered state of consciousness, made worse by the psychosis, and in my mind -- now, this isn't a legal term, this is just my term. In my mind, that state being high on drugs and alcohol and being psychotic, gave him a diminished capacity to appreciate what it was that he was doing at the time of the offense.

(Doc. 41-19 at 145).

         Second, Saunders's invites habeas review in order to “require the Alabama Court of Criminal Appeals to correct its misapprehension of its own prior decisions.” (Doc. 41-1 at 46, ¶ 73). Specifically, he argues that the CCA's requirement that a post-conviction ineffective assistance claim for failing to secure an expert's services states both the expert's name and his or her expected testimony contravenes CCA precedent. This does not constitute grounds available to succeed on a habeas claim. This is because “state courts are the final arbiters of state law, and federal habeas courts should not second-guess them on such matters.” Agan v. Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997). See also id. (citing Pulley v. Harris, 465 U.S. 37, 41 (1984)) (“A federal court may not issue the writ on the basis of a perceived error of state law.”); Hays v. Alabama, 85 F.3d 1492, 1500 (11th Cir. 1996) cert. denied, 520 U.S. 1123 (1997) (“Petitioner is due no relief on the grounds that Alabama has misinterpreted its own law.”). The Court accordingly concludes the CCA's determination of this claim was not contrary to nor an unreasonable application of clearly established federal law. The claim is DENIED.

b. Mr. Saunders's trial counsel was ineffective during the guilt phase because even if trial counsel's decision to call Mr. Saunders to testify during the guilt phase was made for strategic reasons, trial counsel's execution of that decision was ineffective at best, and, at worst, tended to establish the inference that Mr. Saunders was guilty of capital murder.

         Saunders testified during the guilt phase of his trial. (See generally Doc. 41-10 (Saunders's testimony)). Saunders contends trial counsel had no legitimate reason to call him as a witness during the guilt phase. (Doc. 41-1 at 46, ¶ 74). Saunders also claims the decision to call him to testify was ineffectively implemented because Saunders's counsel failed to prepare him for his testimony. (Id. at 47, ¶ 74-75). Saunders broadly argues his questioning lacked any sound legal reasoning or strategy. (Id. at 49-50, ¶ 78). In support of this claim, Saunders faults trial counsel for (1) failing to question Saunders about his mental state; (2) failing to elicit testimony about Saunders's history of mental illness; and (3) effectively acting as a “surrogate prosecutor[.]” (Id. at 48, ¶ 76).

         During Saunders's testimony, his trial counsel asked questions such as:

• “What did [Mr. Clemons] do to deserve [being murdered]?” (Doc. 41-10 at 22).

• “Do you realize how hard you hit [Mr. Clemons]?” (Id. at 23).

• “Do you see how small [Mrs. Clemons] is?” (Id. at 27).

         As a result, Saunders argues his counsel coached him to concede capital murder guilt, prejudiced the jury, violated his rights under the Due Process Clause to plead not guilty and to hold the government to strict proof beyond a reasonable doubt, resulting in “per se ineffective assistance of counsel . . . .” (Doc. 41-1 at 50, ¶ 79). Saunders's entire argument about the type of questions posed and the lack of strategic questions is as follows:

Trial counsel failed to question Mr. Saunders about his mental state when he struck Mr. Clemons. He did not question Mr. Saunders about whether he intended to rob or burglarize the Clemonses at the time he struck Mr. Clemons. Trial counsel did not elicit any testimony from Mr. Saunders about his previous diagnoses of mental illness, whether his mental illness was being treated at the time of the incident, or Mr. Saunders's behavior when his mental illness was adequately treated. Had these questions been asked, the jury would have been presented with compelling evidence showing that Mr. Saunders did not have sufficient culpability to sustain a conviction for capital murder, even if the fact that Mr. Saunders killed Mr. Clemons was a foregone conclusion.

(Id. at 47, ¶ 75).

         He argues the CCA discounted the evidence, which conflicted with the Supreme Court's holding in Porter v. McCollum, 558 U.S. 30 (2009). According to Saunders, this “mountain of evidence[, ]” (Doc. 41-1 at 51, ¶ 81), concerning his mental illness and substance abuse was ignored by the CCA. Saunders cites Porter for the proposition that “a court may not ‘unreasonably discount' evidence relevant to ‘assessing a defendant's moral culpability.'” (Doc. 41-1 at 51-52, ¶ 81 (quoting Porter, 558 U.S. at 41 (2009)).

         The Respondent responds in three ways. First, the Respondent argues that Saunders only partially exhausted this claim. She argues that Saunders did not exhaust his claim regarding inadequate preparation, and that the claim is now procedurally defaulted. Second, the Respondent states partial concession of guilt is not automatically ineffective, but must remain analyzed under the Strickland standard. Third, under the required Strickland analysis, she argues that Saunders's concession was reasonable under Strickland because the decision emanated from an “attempt to gain credibility with the jury by conceding facts that could not be contested and then argue that those facts constituted a lesser crime than capital murder.” (Doc. 47 at 44). As a result, the Respondent argues Saunders failed to plead how he was prejudiced. (Id.).

         The CCA affirmed the circuit court's summary dismissal of this claim pursuant Ala. R. Crim. P. 32.7(d). First, it did so based on Rule 32.6(b), faulting Saunders for failing to meet his burden of pleading the full facts in support of his claim. In doing so, it held “Saunders was required to plead how he was prejudiced by counsel's concession of guilt[.]” Saunders II, 249 So.3d at 1165. The CCA noted that

Saunders has mischaracterized counsel's actions at trial. Although counsel did concede that Saunders did commit the act that resulted in Mr. Clemons's death, counsel argued that Saunders could not form any specific intent to kill because he was under the influence of crack cocaine at the time of the killing. Counsel did not concede Saunders's entire guilt as Saunders argues in his brief to this Court. Moreover, even if counsel did concede Saunders's guilt, Saunders would be entitled to no relief on this claim.

Id. at 1163-64.

         And second, the CCA affirmed based upon Rule 32.7(d), holding no material issue of fact or law would entitle him to relief. Turning to the prejudice prong, the CCA elaborated, noting

“Immediately after he was arrested, Saunders confessed to killing Mr. Clemons by hitting him on the head with the crowbar he had borrowed earlier from Mr. Clemons, and he admitted that he had feigned an asthma attack to gain entry into the Clemonses' residence, where he attacked Mrs. Clemons and took money from Mr. Clemons's wallet and from Mrs. Clemons's purse. Faced with Saunders's confession, with Mrs. Clemons's identification of Saunders at trial and her testimony at trial, and with the other testimony and evidence establishing Saunders's participation in the crimes, defense counsel reasonably attempted to urge the jury to find Saunders guilty of lesser-included charges based on Saunders's inability to form the specific intent to commit capital murder.”

Id. at 1165-66 (quoting Saunders I, 10 So.3d at 92-93). “[G]iven the overwhelming evidence of Saunders's guilt, Saunders could have suffered no prejudice as a result of counsel's questioning.” Id. at 1166.

         i. Procedural Default

         The Respondent argues that Saunders's claim that trial counsel failed to adequately prepare him to testify is procedurally defaulted because Saunders “did not allege in that petition that counsel erred in preparing him . . . .” (Doc. 47 at 42-43). In paragraph 92 of Saunders's Rule 32 petition, he pled the following: “Mr. Saunders was prejudiced by ineffective assistance of counsel at the guilt and penalty phases at his capital trial. First, trial counsel's deficient performance was prejudicial during the guilt phase of Mr. Saunders's trial as: . . . (b) trial counsel failed to prepare Mr. Saunders to testify[.]” (Doc. 41-34 at 27, ¶ 92) (emphasis added). This was not couched in a specific claim, such as Saunders's contention that counsel's concession of guilt was prejudicial, but more so as a prelude for the claims he later would explicitly identify. The lack of factual foundation renders this allegation inadequately presented.

         “[F]ederal courts require a petitioner to present his claims to the state court ‘such that a reasonable reader would understand each claim's particular legal basis and specific factual foundation.'” French v. Warden, Wilcox State Prison, 790 F.3d 1259, 1270-71 (11th Cir. 2015) (quoting Kelley, 377 F.3d at 1344-45). Saunders's Rule 32 petition failed to provide the state court with a specific factual foundation. In doing so, the claim, as it relates to trial counsel's alleged failure to prepare Saunders to testify, was not fairly presented to the state courts. Because Saunders did not properly present this element of the claim to the state courts, it is barred from federal habeas review.

         ii. Merits

         In upholding the circuit court's summary dismissal, the CCA held that trial counsel was not per se ineffective for conceding Saunders killed Mr. Clemons. The Supreme Court, in United States v. Cronic, 466 U.S. 648 (1984), outlined specific instances of ineffective assistance “so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Id. at 658. Under those specific instances, “[p]rejudice may be presumed[.]” Castillo v. Fla., Sec'y of DOC, 722 F.3d 1281, 1286 (11th Cir. 2013). Absent the existence of one of the three outlined exceptions, a petitioner must satisfy Strickland's two-part requirement and show both deficient performance and actual prejudice. As the Eleventh Circuit has explained, prejudice may be presumed “only where: (1) there is a ‘complete denial of counsel' at a ‘critical stage' of the trial, (2) ‘counsel entirely fails to subject the prosecution's case to meaningful adversarial testing,' or (3) under the ‘circumstances the likelihood that counsel could have performed as an effective adversary was so remote as to have made the trial inherently unfair.'” Id. at 1286-87 (emphasis omitted) (quoting Cronic, 466 U.S. at 659-61).

         The CCA held trial counsel's concession of guilt did not invoke the presumed-prejudice standard. “Because the presumed-prejudice standard would not apply in Saunders's case, ” the CCA held, “Saunders was required to plead how he was prejudiced by counsel's concession of guilt; however, Saunders failed to do so.” Saunders II, 249 So.3d at 1165. It further held that due to the overwhelming evidence of Saunders's guilt, Saunders would have suffered no prejudice as a result of trial counsel questioning. This, it said, meant there was no material issue of law or fact that would entitle Saunders to relief. Id. at 1166.

         The CCA's holding that Saunders's failed to plead how he was prejudiced by trial counsel's concession that Saunders murdered Mr. Clemons was not unreasonable. The sum total of this claim, as pleaded in Saunders's original Rule 32 petition is as follows:

97. Inexplicably trial counsel placed Mr. Saunders on the stand and not only allowed him to admit killing the deceased victim but also, in effect, took on the role of prosecutor in questioning Mr. Saunders. Trial counsel's actions caused Mr. Saunders to provide the State with the functional equivalent of a guilty plea. Trial counsel's concession of guilt also likely impacted their performance at every stage of the trial.

98. “Trial counsel's concession of guilt violated not only Mr. Saunders right under the due process clause to plead not guilty, but also his right to ‘hold the government to strict proof beyond a reasonable doubt' and ‘have his guilt or innocence decided by the jury.' Wiley v. Sowders, 647 F.2d 642, 650 (6th Cir. 1981). See also Francis v. Spraggins, 720 F.2d 1190, 1194 (11th Cir. 1983). Such conduct is per se ineffective assistance of counsel and ‘triggers a presumption of prejudice.' United States v. Williamson, 53 F.3d 1500, 1511 (10th Cir. 1995). Accord, Brown v. Rice, 693 F.Supp. 381, 396 (W.D. N.C. 1988) (‘[counsel's concession of guilt is ineffective assistance] regardless of the weight of the evidence of defendant'), reversed on other grounds, Brown v. Dixon, 891 F.2d 490 (4th Cir. 1989); State v. Harbison, 315 N.C. 175, 337 S.E.2d 504, 507-08 (1985) (‘[W]hen counsel ... admits his client's guilt, the harm is so likely and so apparent that ... prejudice need not be addressed.') Accordingly, Mr. Saunders conviction must be reversed. United States v. Swanson, 943 F.2d 1070, 1071 (9th Cir. 1991) (finding that counsel's concession of guilty is ‘a deprivation of ... due process and the effective assistance of counsel').”

(Doc. 41-34 at 29-30, ¶¶ 97-98).

         The CCA's conclusion that counsel's questioning, which included Saunders's admitting that he killed Mr. Clemons, did not prejudice Saunders due to the “overwhelming evidence” concerning Saunders's guilt is not unreasonable under Strickland. In Fla. v. Nixon, 543 U.S. 175 (2004), the Supreme Court held “[a] presumption of prejudice is not in order based solely on a defendant's failure to provide express consent to a tenable strategy counsel has adequately disclosed to and discussed with the defendant.” Id. at 179. Absent this presumption, Strickland demands a petitioner demonstrate (or, in this case plead) that, but for the unprofessional error, a reasonable probability exists that the result of the proceeding would be different. Strickland, 466 U.S. at 694. Saunders's has failed to show that the CCA's holding was contrary to or an unreasonable application of clearly established federal law. Considering the plethora of evidence implicating Saunders, the Court concludes the CCA has not unreasonably applied, or reached a decision contrary to, clearly established federal law. As the Eleventh Circuit has held in a similar case,

Under such circumstances, it would be very difficult to see how the outcome of the trial would have been different had [trial counsel] not conceded [the petitioner's] guilt, as charged in the indictment. See Nixon, 543 U.S. at 192, 125 S.Ct. at 563 (“[C]ounsel cannot be deemed ineffective for attempting to impress the jury with his candor and his unwillingness to engage in ‘a useless charade' [by failing to concede overwhelming guilt].” (quoting Cronic, 466 U.S. at 656 n. 19, 104 S.Ct. at 2046 n. 19)).

Harvey v. Warden, Union Corr. Inst., 629 F.3d 1228, 1252 (11th Cir. 2011). Saunders failed to demonstrate that the CCA's holding was contrary to or involved an unreasonable application of clearly established federal ...