United States District Court, S.D. Alabama, Southern Division
TIMOTHY W. SAUNDERS, Petitioner,
v.
Cynthia Stewart, Warden of Holman Correctional Facility, Respondent.
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 ...