Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Barber v. Dunn

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

March 8, 2019

JAMES EDWARD BARBER, Petitioner,
v.
JEFFERSON S. DUNN, Commissioner, Alabama Department of Corrections, Respondent.

          MEMORANDUM OPINION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE.

         In capital litigation, the stakes are high. Fortunately, counsel who represent capital defendants are generally (and admirably) committed to their chosen work. It is hard work; lawyers who represent capital defendants feel the full weight of the world (or, at least, their client's life and future) on their shoulders. They must pour heart, soul, and health (not to mention resources) into their trade. And, when they are unsuccessful (as they often are), they realize that every move they make will be second guessed. That is the way it is and must be, because Congress and the courts have established a rigorous framework to review counsel's conduct to ensure counsel provided constitutionally adequate representation. Additionally, the federal habeas statute requires federal courts to review state courts' handling of a prisoner's conviction, sentence, and postconviction claims. Before the state can “wield the sword, ” as a general rule, that type of review must occur. This case is no different. Petitioner James Edward Barber has presented a number of claims which call upon this court to review both his trial counsel's and the state courts' handling of his trial, appeal, and postconviction proceedings.

         One of Barber's claims presents a particularly interesting question: What happens when counsel's performance is limited not by the lawyer's unreasonable deficiency but, rather, by a client's own choices? The Supreme Court has spoken directly to that scenario. And, that is the circumstance presented by the first of Barber's claims in this case. During his pretrial proceedings and at his trial, Barber insisted he did not kill Dorothy Epps. In fact, he did. There is no question about that. After his trial and direct appeal, he admitted it. But earlier, in the trial court, Barber insisted he was innocent and refused to permit his lawyers to present any defense that would have involved admitting he killed Epps.

         Not until after his conviction and death sentence became final did Barber change his tune. He now says he killed Epps, but there were mitigating circumstances involved. He was intoxicated when he killed her and did not kill her during a robbery. Both these defenses had the potential, if believed by the jury, to spare Barber's life. But, they were never asserted. Barber says they should have been. He claims that, even though he insisted at the time that his lawyers not present those defenses, their failure to present them violated his constitutional right to effective assistance of counsel.

         Barber makes a number of other claims, too. He raises a Strickland claim based on his counsel's penalty-phase performance, challenges certain rulings of the state trial and appellate courts, and makes claims based on the prosecution's conduct and other circumstances of his trial. Accordingly, he has petitioned for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his 2003 capital murder conviction and death sentence in Alabama state court. (Doc. # 1). The parties have fully briefed Barber's claims. (Docs. # 1, 20, 23). After careful consideration of each of his claims in light of the record, the pleadings, and the applicable provisions of 28 U.S.C. § 2254, the court concludes that Barber has not shown he is entitled to habeas relief. Accordingly, and for the reasons stated below, his petition for a writ of habeas corpus is due to be denied.

         Table of Contents

         I. Background and Procedural History .................................................................................. 6

         II. Standard of Review ............................................................................................................... 8

         III. Barber's Claims for Relief ................................................................................................. 11

         A. Barber's Guilt-Phase Strickland Claim ......................................................................... 11

         1. Barber's Arguments ................................................................................................... 13

         a. Failure to Investigate Alternative Defenses ........................................................ 14

         b. Pursuit of an “Impossible” Innocence Defense .................................................. 17

         c. Prejudice ................................................................................................................ 18

         2. The State Court's Decision ......................................................................................... 20

         3. The State Court's Decision Was Reasonable ............................................................ 24

         a. Deficient Performance .......................................................................................... 25

         i. Investigation of Alternative Defenses .............................................................. 25

         ii. Pursuit of Innocence Defense at Trial ............................................................. 31

         b. Prejudice ................................................................................................................ 34

         B. Barber's Penalty-Phase Strickland Claim ..................................................................... 36

         1. Barber's Arguments ................................................................................................... 37

         a. Failure to Conduct a Reasonable Mitigation Investigation .............................. 37

         b. Prejudice ................................................................................................................ 40

         2. The State Court's Decision ......................................................................................... 41

         3. The State Court's Decision Was Reasonable ............................................................ 44

         a. Deficient Performance .......................................................................................... 44

         b. Prejudice ................................................................................................................ 47

         i. Mitigation Evidence at Barber's Penalty-Phase Trial .................................. 47

         ii. Mitigation Evidence at Barber's Rule 32 Hearing ......................................... 51

         iii. Reweighing the Mitigation Evidence ............................................................... 53

         C. Barber's Claims That the Trial Court Improperly Precluded the Jury from Considering Certain Mitigation Evidence and Failed to Instruct the Jury Regarding Mercy ............................................................................................. 57

         1. The Trial Court's Instructions Regarding the Testimony of Barber's Family and Friends .................................................................................................................. 58

         2. The Trial Court's Failure to Give an Instruction Regarding Mercy ..................... 60

         D. Barber's Ring v. Arizona Claim ..................................................................................... 63

         1. Relevant Supreme Court Precedent .......................................................................... 63

         2. Alabama's Capital Sentencing Scheme and Barber's Death Sentence .................. 65

         3. The State Court's Rejection of Barber's Claim Was Reasonable .......................... 67

         E. Barber's Claim That His Indictment Was Defective ................................................... 70

         F. Barber's Claims Based on the State Court's Reliance on Ex Parte Waldrop, 859 So.2d 1181 (Ala. 2002) in Affirming His Death Sentence .................................... 72

         G. Barber's Claim Based on the Trial Court's Admission of Testimony About the Partial Palm Print ........................................................................................................... 77

         H. Barber's Claim That the State Vouched for the Credibility of Its Witnesses ........... 82

         1. Barber's Arguments and the State Court's Decision .............................................. 82

         2. Relevant Supreme Court Precedents ........................................................................ 83

         3. The State Court's Rejection of Barber's Vouching Claim Was Reasonable ........ 86

         I. Barber's Claim That the Trial Court Permitted Improper Opinion Testimony at the Penalty Phase ........................................................................................................ 88

         J. Barber's Claim That Alabama's Death-Qualification Process Produced a Conviction-Prone Jury in Violation of His Right to an Impartial Jury ..................... 89

         K. Barber's Claim That the State's Decision to Seek the Death Penalty Was Impermissibly Influenced by the Victim's Family Members ..................................... 90

         1. Factual Background .................................................................................................... 91

         2. Analysis ........................................................................................................................ 92

         a. The State Court's Factual Determination Stands .............................................. 93

         b. The State Court's Rejection of Barber's Claim Was Reasonable .................... 94

         L. Barber's Claims That the Prosecutor Made Impermissible Comments on His Failure to Testify and Impermissibly Shifted the Burden of Proof to Him ............... 99

         1. Factual Background .................................................................................................... 99

         2. The Prosecutorial-Commentary Claim ................................................................... 100

         3. The Burden-Shifting Claim ...................................................................................... 102

         M. Barber's Claim Based on the Trial Court's Admission of Barber's Confession .... 103

         N. Barber's Claim Based on the Jury Viewing Him in Shackles and Handcuffs ........ 104

         O. Barber's Cumulative-Effect Claim ............................................................................. 108

         IV. Conclusion ..................................................................................................................... 108

         I. Background and Procedural History

         To discuss the issues raised by Barber's federal habeas petition, the court need only briefly recount the crime at issue. Barber was convicted and sentenced to death in Madison County, Alabama, for the murder of Dorothy Epps during the course of a first-degree robbery. See Ala. Code § 13A-5-40(a)(2); Barber v. State, 952 So.2d 393, 400 (Ala.Crim.App.2005). Barber knew Epps before killing her. Barber, 952 So.2d at 401. He previously had a romantic relationship with Epps' daughter, and he had performed repair work at the Epps home in the past. Id. at 401, 405. One weekend in May 2001, Barber entered Epps' home while she was alone and beat her to death. Id. at 401-05. There was no evidence of forced entry at the Epps home, making it more likely than not that Barber gained access to the home easily because of his acquaintance with Epps. Id. at 401. The evidence at trial showed that Barber first struck Epps in the face with his fist and then inflicted multiple blunt-force injuries using a claw hammer. Id. The medical examiner who performed Epps' autopsy found evidence of nineteen different lacerations and seven fractures in the head or skull caused by the blows. Id.

         Crime scene investigators discovered a large amount of Epps' blood all around the area she was found, including the floor, walls, furniture, and ceiling. Id. at 402. They also found a bloody palm print on a counter in the area where Epps was found. A latent print examiner with the Huntsville Police Department later compared the bloody print to the known palm print of Barber and testified unequivocally that the palm print found on the countertop was Barber's. Id. at 402.

         State authorities took Barber into custody on May 24, 2001, less than one week after the murder. Id. at 403. Investigator Dwight Edger interviewed Barber three times between May 23 and May 25, 2001, and each time Barber waived his Miranda rights and agreed to speak with Edger. Id. at 404. In the first two interviews Barber denied any knowledge of the crime, but in the third interview he confessed to the crime after Edgar informed him that officers had recovered his bloody palm print from the crime scene. Id. at 404-05.

         During the third interview, Barber became very emotional and stated that “he had been using cocaine all day” on the day of the murder and that “he was really ‘f-ed up' and did not plan to kill the victim.” Id. at 404. He went on to describe Epps' killing in some detail:

And I was going over to see [Epps] . . . I stopped over there and was going to talk to her about the shutters and all of a sudden I just figured, well, you know, she's probably got a few bucks, you know, I should ask her for some money, and I just turned around and hit her. Something came over me, I just BOOM-turned around and hit her.

(Vol. 23 at 1238). Barber further explained in the third interview that he:

hit the victim with his hands and then with a hammer; that he threw the hammer in the trash and took the trash bag; that he took the victim's purse because it looked good and not to rob her; and that he threw the bag, purse, and his shoes in a dumpster at a carwash.

Barber, 952 So.2d at 405. During the third interview, Barber estimated that he killed Epps around 7:00 pm on Saturday, May 19, 2001. Id.

         Barber was tried for capital murder in Madison County Circuit Court. His trial began on December 9, 2003. (State Court Record, Vol. 8, Tab R-10 at 407).[1] On December 15, 2003, the jury found Barber guilty of murdering Epps during the course of a robbery. (Vol. 11 at 1189). On December 16, 2003, the jury recommended by a vote of eleven to one that Barber be sentenced to death. (Vol. 12, Tab R-32 at 1330). On January 9, 2004, the trial court accepted the recommendation of the jury and sentenced Barber to death. (Vol. 12, Tab R-34 at 1361; Vol. 12, Tab R-35 at 270).

         Barber appealed to the Alabama Court of Criminal Appeals, challenging his conviction and sentence on a variety of constitutional grounds. See generally Barber, 952 So.2d 393. The Court of Criminal Appeals affirmed Barber's conviction and sentence. Id. at 464. The Court of Criminal Appeals denied Barber's petition for rehearing on July 8, 2005, and the Alabama Supreme Court denied his petition for writ of certiorari on September 22, 2006. Id. at 393. The Supreme Court of the United States denied Barber's petition for writ of certiorari on March 26, 2007. Barber v. Alabama, 549 U.S. 1306 (2007).

         Barber filed a petition for state postconviction relief under Alabama Rule of Criminal Procedure 32. (Vol. 17, Tab R-47 at 14). After conducting a hearing, the Madison County Circuit Court denied his petition. (Vol. 22, Tab R-59 at 1115). The Alabama Court of Criminal Appeals affirmed. (Vol. 29, Tab R-65 at 26). Barber then filed an application for rehearing in the Court of Criminal Appeals, which was denied. (Vol. 29 at Tab R-66). Finally, Barber filed a petition for writ of certiorari in the Alabama Supreme Court on August 17, 2015. (Vol. 29 at Tab R-67). The Alabama Supreme Court denied the petition on September 25, 2015. (Vol. 29 at Tab R-68).

         In March 2016, Barber filed his federal habeas petition in this court. (Doc. # 1). Respondent Jefferson Dunn, Commissioner of the Alabama Department of Corrections, asserts that each of Barber's claims for relief lacks merit and that the petition is therefore due to be denied. (Doc. # 20). Barber has filed a reply brief in support of his petition. (Doc. # 23). Before addressing the merits of Barber's petition, the court explains the standard of review that applies to his claims.

         II. Standard of Review

         Each of the claims raised in Barber's federal habeas petition was previously raised on direct appeal from his conviction or in state postconviction proceedings. Because Barber petitioned the Alabama Supreme Court for a writ of certiorari both on direct appeal and following postconviction proceedings, he has “invok[ed] one complete round of [Alabama's] established appellate review process” and thereby exhausted his state court remedies as required by 28 U.S.C. § 2254(b)(1). O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Smith v. Jones, 256 F.3d 1135, 1141 (11th Cir. 2001); Pruitt v. Jones, 348 F.3d 1355, 1359 (11th Cir. 2003). Thus, there are no exhaustion or procedural default issues raised by Barber's federal habeas petition.

         The claims in Barber's petition are governed by the deferential standard of review mandated by Congress in 28 U.S.C. § 2254(d). Under that standard, a federal court may grant habeas corpus relief to a state prisoner for claims adjudicated on the merits by a state court only if the petitioner shows that the state court proceedings resulted in a decision that was:

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

28 U.S.C. § 2254(d)(1), (2); see also Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (stating that § 2254(d) requires a “highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt” (internal citation and quotation marks omitted)). This court's review of Barber's claims under § 2254(d)(1) is limited to the record that was before the state courts that adjudicated those claims on the merits. Cullen v. Pinholster, 563 U.S. 170, 181 (2011). Similarly, the state courts' decisions must be “measured against [the Supreme] Court's precedents as of the time” the state courts rendered their decisions. Id. at 182 (internal quotation marks omitted).

         Section 2254(d)(1)'s “contrary to” clause applies when the state court reaches a conclusion “opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts.Jones v. GDCP Warden, 753 F.3d 1171, 1182 (11th Cir. 2014) (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)) (brackets omitted). An “unreasonable application” of Supreme Court precedent under § 2254(d)(1) occurs when the state court “identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. (quoting Williams, 529 U.S. at 413) (brackets omitted). The Supreme Court has explained that an “unreasonable application of” its prior holdings must be “objectively unreasonable, ” not merely wrong; so, even “clear error” will not suffice to allow relief under this clause of § 2254(d)(1). Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). Rather, “[u]nder § 2254(d), a habeas court must determine what arguments or theories 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” a prior holding of the Supreme Court. Harrington v. Richter, 562 U.S. 86, 102 (2011). This question, the Supreme Court has observed, is “the only [one] that matters under § 2254(d)(1).” Lockyer, 538 U.S. at 71. To the extent that Barber disputes a factual determination by the state courts, this court may only overturn a state court's factual findings if Barber “produces ‘clear and convincing evidence' that those findings are erroneous.” Jones, 753 F.3d at 1182 (quoting 28 U.S.C. § 2254(e)(1)).

         To determine whether Barber is entitled to habeas relief based on a claim that was adjudicated on the merits in state court, a federal habeas court looks to the decision of “the last state court to decide [the] claim . . . .” Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018); see also Newland v. Hall, 527 F.3d 1162, 1199 (11th Cir. 2008) (“[T]he highest state court decision reaching the merits of a habeas petitioner's claim is the relevant state court decision.”). In Barber's case, the relevant decisions are the opinions of the Alabama Court of Criminal Appeals affirming his conviction and sentence on direct appeal, Barber v. State, 952 So.2d 393 (Ala.Crim.App.2005), and affirming the denial of his Rule 32 petition in postconviction proceedings, (Vol. 29, Tab R-65 at 1-26). Where, as here, the last state court to decide a prisoner's federal claim “explains its decision on the merits in a reasoned opinion, ” a federal court “simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable.” Wilson, 138 S.Ct. at 1192.[2]

         The court's review of Barber's § 2254 petition is highly deferential to the state courts' resolution of his claims. See Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). If “fairminded jurists could disagree” on the correctness of the state court's decision, federal habeas relief is precluded. Harrington, 562 U.S. at 101.

         III. Barber's Claims for Relief

         Barber, through counsel, has asserted a number of claims in his § 2254 petition. The court addresses each, in turn.

         A. Barber's Guilt-Phase Strickland Claim

         Barber first claims he received ineffective assistance of counsel at the guilt phase of his trial, in violation of the Sixth Amendment as interpreted in Strickland v. Washington, 466 U.S. 668 (1984). (Doc. # 1 at 29-78)

         An ineffective assistance of counsel claim under the Sixth Amendment has two elements. First, a defendant “must show that counsel's performance was deficient.” Strickland, 466 U.S. 668, 687 (1984). Second, he must show that counsel's deficient performance prejudiced his defense. Id.

         To establish deficient performance, a defendant “must show that counsel's representation fell below an objective standard of reasonableness.” Harrington, 562 U.S. at 104 (internal quotation marks omitted). Reasonableness must be determined by reference to “prevailing professional norms.” Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc) (quoting Strickland, 466 U.S. at 688). Reviewing courts “must apply a ‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance.” Harrington, 562 U.S. at 104. The burden is on the defendant to show “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. (quoting Strickland, 466 U.S. at 687).

         To establish prejudice, a defendant “must demonstrate ‘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.'” Id. (quoting Strickland, 466 U.S. at 694). To show prejudice, “[i]t is not enough ‘to show that the errors had some conceivable effect on the outcome of the proceeding.'” Id. (quoting Strickland, 466 U.S. at 693). Rather, “[c]ounsel's errors must be ‘so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'” Id. (quoting Strickland, 466 U.S. at 687). In other words, “[t]he likelihood of a different result” absent counsel's deficient performance “must be substantial, not just conceivable.” Id. at 112 (emphasis added).

         The Supreme Court has described Strickland's standard as “highly deferential.” Id. at 105 (internal quotation marks omitted). It has explained that “[s]urmounting Strickland's high bar is never an easy task.” Id. (internal quotation marks omitted). Thus, when reviewing a state court's adjudication of a Strickland claim under § 2254(d)'s highly deferential standard, a federal court must be “doubly deferential.” Burt v. Titlow, 571 U.S. 12, 15 (2013) (internal quotation marks omitted). That means giving “both the state court and the defense attorney the benefit of the doubt.” Id. Because “[t]he Strickland standard is a general one, ” “the range of reasonable applications” under § 2254(d) “is substantial.” Harrington, 562 U.S. at 105. Thus, “[w]hen § 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.

         Barber raised his guilt-phase ineffective assistance claim before the Alabama Court of Criminal Appeals when he appealed the denial of his Rule 32 petition. He contends the Court of Criminal Appeals unreasonably rejected his guilt-phase ineffective assistance of counsel claim. The court divides its discussion of this claim into three parts. First, it recounts Barber's arguments that he received ineffective assistance of counsel at the guilt phase of his trial. Second, it reviews the state court's reasoning in rejecting Barber's claim. Third, it explains why the state court neither acted contrary to nor unreasonably applied clearly established Supreme Court precedent in rejecting Barber's claim.

         1. Barber's Arguments

         Barber argues his trial counsel were deficient during the guilt phase of his trial for two principal reasons: (1) they failed to adequately investigate and discuss with Barber two alternative lines of defense and (2) they pursued an “impossible” innocence defense at trial to the exclusion of other more viable defenses they could have presented. He claims trial counsel's performance prejudiced him because evidence he presented in state postconviction proceedings actually proved the alternative defenses that trial counsel failed to investigate and present at trial, and those alternative defenses could have reduced his conviction from a capital offense to a noncapital offense.

         a. Failure to Investigate Alternative Defenses

         First, Barber faults his trial counsel for failing to thoroughly investigate and present a manslaughter defense based on evidence that he was intoxicated at the time of the crime. Barber claims it was objectively unreasonable for his counsel not to investigate and inform him of the possibility of arguing that he was so intoxicated at the time of the killing that he was incapable of forming the specific intent to kill required for a murder conviction under Alabama law. (Doc. # 1 at ¶¶ 59-75). Barber's argument is based on several sources of evidence tending to show his intoxication at the time of the crime and his general propensity for substance abuse.

         In Barber's videotaped confession to police, he stated that on the day he killed Epps:

[I] had been doing coke all day long at my house. The stuff just makes you fucked up. And I was going over to see [Epps] . . . I stopped over there and was going to talk to her about the shutters and all of a sudden I just figured, well, you know, she's probably got a few bucks, you know, I should ask her for some money, and I just turned around and hit her. Something came over me, I just BOOM-turned around and hit her.
. . .
I just turned around and hit her. I don't know why, I just . . . I guess I was just all fuckin' drugged up and . . . I don't know. I was, I was fucking insane almost, you know.

(Vol. 23 at 1238, 1241). Barber's videotaped confession was admitted in evidence at trial and played for the jury. (Vol. 10 at 981-82). There is no dispute Barber's counsel were aware of the confession.

         Trial counsel were also aware that Barber had a history of substance abuse and addiction. Barber explained his experience with cocaine addiction in his videotaped confession:

And once you start doing, you just can't stop. I mean, once you start doing that stuff, you can't stop doing it. It takes a hold of you and you just-you spend every fucking penny you got on it. It makes you all fucked up. But yet you can't stop doing it.

(Vol. 23 at 1242).

         Dr. Marianne Rosenzweig, a forensic and clinical psychologist hired to assess Barber's competency to confess, also reported Barber's history of cocaine and alcohol abuse to Barber's counsel: “[Barber] was using a few hundred dollars' worth [of cocaine] at a time twice a week at the time that he was arrested [for Epps' murder]. . . . Mr. Barber also reports that he has had a problem with alcohol since his early 20's . . . .” (Vol. 23 at 1210-11). In light of this evidence, Barber claims his trial counsel's failure to investigate and discuss a manslaughter defense with him was objectively unreasonable.

         Second, Barber also faults his trial counsel for failing to thoroughly investigate and discuss with him a defense based on the theory that Barber committed robbery as a mere afterthought to the murder. In Alabama, murder is a capital offense if committed during a first-degree robbery. Ala. Code § 13A-5-40(a)(2). The state charged Barber with capital murder based on the allegation that he killed Epps during the commission of a robbery-specifically, that he stole her purse after beating her to death. (Vol. 1, Tab R-1 at 9). Under Alabama law, “a robbery committed as a ‘mere afterthought' and unrelated to the murder will not sustain a conviction under § 13A-5-40(a)(2) for the capital offense of murder-robbery.” Connolly v. State, 500 So.2d 57, 63 (Ala.Crim.App.1985). Barber argues that statements in his confession showed he lacked the intent to rob Epps before killing her. He claims his trial counsel unreasonably failed to investigate and inform him of the mere afterthought defense, which, if implemented, could have reduced his conviction from capital to noncapital murder.

         Barber claims several statements in his taped confession show that his theft of Epps' purse was a “mere afterthought, ” unrelated to his decision to kill her. He points to his description of the killing as unplanned, illogical, and purposeless:

I mean I just don't even know how it happened like. I just kinda snapped. I mean, we weren't arguing or nothing . . . I just thought I needed some money, you know. . . I just figured, well, you know, she's probably got a few bucks, you know, I should ask her for some money, and I just and I just turned around and hit her. Something came over me. I just BOOM-turned around and hit her. I don't know why.

(Vol. 23 at 1236, 1238). He also points to his response when asked what he did with Epps' purse: “I didn't take the purse to rob her. I just figured it looked good, I was like, freaking out.” (Vol. 23 at 1237). In light of this evidence, Barber claims his trial counsel's failure to investigate and discuss a mere afterthought defense with him was objectively unreasonable.

         Barber admitted to killing Epps at his Rule 32 evidentiary hearing, but at the time of his trial “he insisted . . . that he was innocent and had nothing to do with Epps's murder.” (Vol. 29, Tab R-65 at 14). Indeed, the state courts found that Barber “would not consider any defense that required him to admit that he killed Epps” and that he “refused” to consider “trying the case on the basis that [he] was intoxicated when he killed Epps.” (Id. at 13). Barber nevertheless maintains that “just because a defendant insists he is innocent and demands that counsel pursue[ ] an innocence defense does not make it reasonable for counsel to follow his wishes.” (Doc. # 1 at 46, ¶ 88). In short, Barber argues his counsel were deficient for failing to “make an informed evaluation of all possible defenses” and “have meaningful discussions with [him] about these defenses and the realities of the case.” (Id.). The import of his argument is that, had counsel investigated and discussed the manslaughter and mere afterthought defenses with him, Barber likely would have instructed counsel to pursue those defenses instead of complete innocence, thereby potentially avoiding a capital conviction.

         b. Pursuit of an “Impossible” Innocence Defense

         Finally, in addition to failing to investigate and inform him of alternative defenses, Barber faults his trial counsel for in fact pursuing an innocence defense at trial -- a defense he now characterizes as “impossible” -- instead of the more viable manslaughter and mere afterthought defenses discussed above. Barber claims evidence that could have been used to support both the intoxication and mere afterthought defenses was presented at trial, despite counsel's failure to investigate. Specifically, Barber points to statements in his videotaped confession regarding his cocaine usage on the day of the crime and his statement, “I didn't take the purse to rob her. I just figured it looked good . . . .” (Vol. 23 at 1237). Because the confession was played for the jury, Barber claims it was objectively unreasonable for his trial counsel not to argue the intoxication and mere afterthought defenses to the jury. Though Barber recognizes that his counsel obtained jury instructions on the lesser-included offenses of manslaughter, felony murder, and intentional murder (Vol. 11, Tab R-21 at 1147-55), and specific instructions regarding the intoxication and mere afterthought defenses (Id. at 1152-53, 1166), he claims the manslaughter instruction “was rendered meaningless because Trial Counsel failed to make any argument to the jury that Mr. Barber's intoxication at the time of the offense could have deprived him of the requisite intent.” (Doc. # 1 at 50-51). He also criticizes his trial counsel for making “only a half-hearted attempt” to argue that the state failed to prove the killing occurred during the commission of a robbery. (Id. at 53). In short, Barber claims it was objectively unreasonable for his counsel to primarily pursue an innocence defense at trial and to give short shrift to what he contends were the more viable intoxication and mere afterthought defenses.

         c. Prejudice

         Barber claims he was prejudiced by his trial counsel's failure to investigate and discuss the manslaughter and mere afterthought defenses with him and their decision to instead pursue an innocence defense at trial. He argues that evidence presented at his Rule 32 hearing proved the manslaughter and mere afterthought defenses. And though he does not expressly argue it, Barber implies that had his trial counsel adequately investigated and discussed the manslaughter and mere afterthought defenses with him, he would have instructed his counsel to pursue those defenses at trial instead of the innocence defense he insisted on at the time.

         At his Rule 32 hearing, Barber testified about his drug and alcohol use on the day he killed Epps and the day prior to the killing. (Vol. 26 at 403-14). He prefaced his testimony by stating, “Like I said, my memory is what it is and I can't tell you every time I stopped and got crack during this period. But I'm going to do my best.” (Id. at 403). He also gave the following caveat about his estimates of the amount of drugs and alcohol he consumed prior to killing Epps: “I mean, you know, none of these numbers that I'm giving you are gospel because it's a long time ago and I was pretty messed up.” (Id. at 407). He proceeded to testify that on the day before he killed Epps he smoked several hundred dollars' worth of crack cocaine, likely took four to seven prescription pain pills, and drank a case of beer and a large bottle of wine. (Id. at 404-07). He fell asleep that night and woke up at approximately 6:00 or 6:30 am the next morning. (Id. at 407). On the day of the crime, Barber testified that he continued to use crack cocaine, prescription pain pills, and alcohol prior to killing Epps. (Id. at 408). When asked how much alcohol he drank that day, Barber responded: “I couldn't tell you with any -- really with any kind of truth to it. It was quite a bit.” (Id. at 408). He nevertheless proceeded to testify that he smoked several hundred dollars' worth of crack cocaine, took at least four to five prescription pain pills, and drank at least a case of beer before killing Epps that evening. (Id. at 409-14). Barber described the extent of his intoxication at this point, shortly before he killed Epps, as “very, very intense, ” and stated he was “very wasted.” (Id. at 414).

         Barber also offered the expert testimony of Dr. Alexander Morton at his Rule 32 hearing to explain how his alleged intoxication could have affected his ability to form the intent required for a murder conviction. (Id. at 452-521). Dr. Morton testified that crack cocaine users can be “mildly violent to extremely violent” and can experience cognitive impairment. (Id. at 483, 486-87). Dr. Morton also testified that using the combination of substances Barber used on the day he killed Epps could lead the user to be unable to control his actions. (Id. at 510).

         Barber also testified regarding the mere afterthought defense at his Rule 32 hearing. He stated that he went to Epps' home to pick up a shutter he had been repairing for her. (Id. at 412). He described his attack on Epps as unprovoked and unplanned. (Id. at 414-15) (“[I] just seemed to snap . . . and I don't know why. . . . I do know that I [killed her]. And I don't know why.”). And he explained that his intent to steal Epps' purse did not arise until sometime after the killing, when he returned to the crime scene to make it look like Epps had been killed by a random intruder during a robbery. (Id. at 417) (“I thought, ‘Maybe I can make it look like a crime,' you know, ‘somebody broke in here.' So I moved a few things around, pulled out the phone jacks. And I threw her pocketbook in that garbage bag with the hammer. . . . And I left and I went home.”).

         Finally, Barber also testified at his Rule 32 hearing that his trial counsel failed to discuss with him the possibility of pursuing the manslaughter or mere afterthought defenses to obtain a noncapital conviction. (Id. at 426-27).

         Based on the evidence presented at his Rule 32 hearing, Barber contends there is a “reasonable probability that, but for [his] counsel's unprofessional errors, ” the result of his guilt-phase trial would have been different. Strickland, 466 U.S. at 694. He suggests that had his counsel adequately investigated the manslaughter and mere afterthought defenses, and discussed those defenses with him, he likely would have instructed his trial counsel to pursue those alternative defenses in hopes of obtaining a noncapital conviction. And, he claims that had counsel pursued those alternative defenses at trial instead of an “impossible” innocence defense, there is a reasonable probability that he would have been convicted of manslaughter or noncapital murder.

         2. The State Court's Decision

         Barber presented his Strickland claims to the state courts in a Rule 32 postconviction proceeding. The Alabama Court of Criminal Appeals affirmed the Rule 32 court's denial of Barber's guilt-phase ineffective assistance claim. (Vol. 29, Tab R-65 at 10-19). The Court of Criminal Appeals held that Barber's counsel were not deficient for failing to pursue the manslaughter and mere afterthought defenses because both defenses “would have required Barber to admit that he killed Epps, ” and “[t]estimony at the evidentiary hearing revealed that Barber denied killing Epps” at the time of his trial and instead “insisted that trial counsel pursue an innocence defense.” (Id. at 12). In light of Barber's insistence that trial counsel pursue an innocence defense, the state court concluded that “Barber failed to prove that counsel were ineffective in their investigation and presentation of alternative defenses.” (Id. at 14). The court also found that “Barber failed to prove that he was prejudiced by counsels' decision not to present alternative defenses” at trial. (Id.). The relevant portions of the state court's opinion are worth quoting in full:

[B]oth [the manslaughter and mere afterthought] lines of defense would have required Barber to admit that he killed Epps. Testimony at the evidentiary hearing revealed that Barber denied killing Epps and insisted that trial counsel pursue an innocence defense. Barber's trial counsel testified that he “made sure Mr. Barber knew all about the evidence and all about the discovery material that we had, the evidence that the State would have -- was intending to present at trial to convict him, and also the law that applied to all of that.” (R. 61.) Trial counsel also testified that he and co-counsel discussed with Barber the option of pursuing lesser-included offenses as well as presenting evidence that Barber was intoxicated at the time of the crime. The following exchange occurred during the evidentiary hearing:
“[Barber's Rule 32 Counsel]: Were you aware in December 2003 that in a capital case, where specific intent is an element of the offense, that you could have put on a case involving voluntary intoxication to mitigate the guilt?
“[Barber's Trial Counsel]: Yes.
“[Barber's Rule 32 Counsel]: Did you consider that in December 2003?
“[Barber's Trial Counsel]: Yes.
“[Barber's Rule 32 Counsel]: Did you discuss that with Mr. Barber?
“[Barber's Trial Counsel]: Yes.
“[Barber's Rule 32 Counsel]: So you were aware that was an option but you chose not to litigate the case on that basis; correct?
“[Barber's Trial Counsel]: No. That's not correct. Mr. Barber was aware of it and refused to even discuss that option with us at all. And said, I will not consider anything but a trial on the facts; that I am not guilty.”

(R. 67.)

Barber's trial counsel repeatedly testified that Barber would not consider any defense that required him to admit that he killed Epps. When asked again whether he talked to Barber about trying the case on the basis that Barber was intoxicated when he killed Epps, trial counsel stated that Barber “refused to go down that road and ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.