United States District Court, N.D. Alabama, Eastern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE.
death penalty habeas case comes before the court following
remand from the Eleventh Circuit Court of Appeals for an
evidentiary hearing on Marcus Bernard Williams's
failure-to-investigate claims. Williams v. Alabama,
791 F.3d 1267 (11th Cir. 2015). Mr. Williams alleges that
trial counsel's failure to investigate his background
prevented the defense from presenting a constitutionally
adequate mitigation case during the penalty phase of his
trial. (Doc. 5 at 40-65). The court held an evidentiary
hearing at which Mr. Williams presented witnesses and
exhibits. The court finds that Mr. Williams is not entitled
to relief under 28 U.S.C. § 2254 because he has not
established that he suffered prejudice as a result of
counsel's failure to investigate and present evidence of
his background as mitigation evidence in the penalty phase of
November 6, 1996, Mr. Williams returned home after a night of
drinking and smoking marijuana with friends. Williams v.
State, 795 So.2d 753, 761 (Ala.Crim.App.1999). Upon
arriving home, he desired to have sexual relations with a
young female neighbor, Melanie Dawn Rowell. Id. Mr.
Williams entered Ms. Rowell's apartment through an
unlocked window, then proceeded to her bedroom where he
climbed on top of her and attempted to remove her clothes.
Id. Ms. Rowell struggled to stop him, so he
strangled her until she was motionless, then had sexual
intercourse with her for fifteen to twenty minutes.
Id. at 761-62. Ms. Rowell's cause of death was
asphyxia due to strangulation. Id. at 762. Mr.
Williams stole Ms. Rowell's purse before leaving her
apartment. Id. at 762. He was later arrested and
taken into custody where he gave an incriminating statement
admitting his involvement in Ms. Rowell's death.
Id. DNA testing confirmed that semen and blood found
at the crime scene were consistent with Mr. Williams's
genetic profile. Id. at 766-67.
attorneys Erskine Funderburg and Tommie Wilsonrepresented Mr.
Williams at trial. (Vol. 4, Tab 27 at 2). Because of the
overwhelming evidence of Mr. Williams's guilt, his
attorneys argued only that although he intended to rape Ms.
Rowell, he did not intend to kill her. (Vol. 3, Tab 11 at
494-504). Despite their efforts, on February 24, 1999, the
jury found Mr. Williams guilty of capital murder for
intentionally causing the death of Ms. Rowell during a rape
or attempted rape, in violation of Alabama Code §
13A-5-40(a)(3) (1975). (Vol. 4, Tab 14 at 534-36).
penalty phase of Mr. Williams's trial was held the next
day, before the same jury. (See Vol. 3, Tab 15 - Tab
24). Trial counsel called only two witnesses, Mr.
Williams's mother, Charlene Williams, and his aunt,
Eloise Williams. (Vol. 3, Tab 19). The Eleventh Circuit Court
of Appeals summarized their testimony:
Charlene Williams told the jury that she was sixteen years
old and unmarried when Mr. Williams was born, and that Mr.
Williams had faced certain difficulties as a child. For
example, she testified that Mr. Williams sometimes lived with
her grandmother and aunt; had no relationship with his father
and lacked adult male figures in his life; and had to stop
playing school sports after injuring his knee. Mr.
Williams's counsel also elicited testimony that portrayed
him in a negative light, such as the fact that he was a high
school dropout; he “started hanging with a rough
crowd”; he got kicked out of the Job Corp[s] for
fighting; and upon returning home, he stopped going to church
and “wanted to sleep all day and stay up all
FN.1. A capital defendant's history of violent and
aggressive behavior is generally considered an aggravating
factor. See Holsey v. Warden, 694 F.3d 1230, 1269-70
(11th Cir. 2012).
Eloise Williams also testified about Mr. Williams's
unstable home life. She told the jury that he had moved from
place to place as a child and lived with different family
members; he became sad and withdrawn at times because he did
not see his mother often; he had been a good student with no
significant criminal history; and he had struggled
emotionally after the deaths of his grandfather and uncle.
However, as with Charlene, counsel also elicited evidence
from Eloise that was likely more harmful than helpful. For
example, Eloise told the jury that Mr. Williams had a quick
temper; he had been arrested for fighting as a teenager;
FN.2, he had not maintained regular employment after leaving
high school; and not long before the crime, he started
drinking and using drugs. Eloise ended on a positive note,
telling the jury that since Mr. Williams had been in jail, he
had stayed out of trouble and expressed remorse for his
FN.2. The fact that Mr. Williams's counsel told the jury
about these adolescent brushes with the law is noteworthy
because the State could not have offered evidence of Mr.
Williams's juvenile arrests to establish any aggravating
factors. In Alabama, “juvenile charges, even those that
result in an adjudication of guilt, are not convictions and
may not be used to enhance punishment.” Thompson v.
State, 503 So.2d 871, 880 (Ala.Crim.App. 1986)
aff'd sub nom. Ex parte Thompson, 503 So.2d 887
Neither Charlene nor Eloise was asked about Mr.
Williams's history of sexual abuse.
Williams, 791 F.3d at 1269-70. The jury deliberated
only thirty minutes before returning an 11 to 1 verdict,
recommending that Mr. Williams be sentenced to death. (Vol.
3, Tab 24 at 596-97).
April 6, 1999 sentencing hearing, Mr. Williams testified,
expressing his remorse. (Vol. 4 at 607-11). The victim's
mother, Donna Rowell, testified about the impact of her
daughter's death on the family, especially Ms.
Rowell's young children. (Id. at 604-06). The
trial court found one aggravating circumstance - that Mr.
Williams killed the victim while committing or attempting to
commit a rape, robbery, burglary, or kidnapping.
(Id. at 630). The trial court found as mitigating
factors Mr. Williams's lack of a criminal history, his
unstable home life as a child, his frustration from an injury
ending his hopes of an athletic career, his obtaining a GED,
and his remorse. (Id. at 631-38). The trial court
found the aggravating factor outweighed the mitigating
factors, and sentenced Mr. Williams to death. (Id.
Alabama Court of Criminal Appeals affirmed Mr. Williams's
conviction and death sentence on December 10, 1999. See
Williams v. State, 795 So.2d 753 (Ala.Crim.App.1999).
The Alabama Supreme Court affirmed his conviction and
sentence on January 12, 2001. See Ex parte Williams,
795 So.2d 785 (2001). The United States Supreme Court denied
certiorari review on October 1, 2001. See Williams v.
Alabama, 535 U.S. 900 (2001).
August, 2004, Mr. Williams filed an amended Rule 32 petition
in the trial court. The trial court denied the Rule 32
petition on the merits, without holding an evidentiary
hearing. (Vol. 13, Tab 59). The Alabama Court of Criminal
Appeals affirmed the denial of Rule 32 relief. (Vol. 13, Tab
2007, Mr. Williams filed the present § 2254 petition in
this court, arguing inter alia, that trial counsel
were ineffective for failing to conduct an adequate
mitigation investigation. (Doc. 5 at 40-65). This court
denied the petition on April 12, 2012. (See Docs.
27, 28). The Eleventh Circuit Court of Appeals remanded the
case, instructing this court to “determine whether Mr.
Williams is entitled to an evidentiary hearing and to
reconsider his failure-to-investigate claims de
novo.” Williams, 791 F.3d at 1277.
Williams filed a motion for an evidentiary hearing on March
3, 2017. (Doc. 51). On October 4, 2017, the court granted Mr.
Williams's motion for an evidentiary hearing on his
failure-to-investigate claim. (Doc. 60).
court held an evidentiary hearing on May 14 - 16, 2018. Mr.
Williams testified at the evidentiary hearing, and presented
the testimony of Tina Watson, Erskine Funderburg, Billy
Stephens, Sharenda Williams, Dr. Kenneth Benedict, Eloise
Williams, Charlene Williams, LaCharo Williams, Marlon
Bothwell, and Dr. Matthew Mendel. The State of Alabama
presented testimony from Dr. Glen King. The court paid close
attention to the testimony, and has carefully reviewed the
transcript of the evidentiary hearing, along with the
exhibits presented at the hearing.
determine whether counsel were ineffective, the court begins
with the instruction from Strickland v. Washington,
466 U.S. 668 (1984). The Supreme Court established a
two-pronged analysis for determining whether counsel's
performance was ineffective. “First, the defendant must
show that counsel's performance was deficient. . . .
Second, the defendant must show that the deficient
performance prejudiced the defense.” Id. at
petitioner must establish both parts of the
Strickland standard: that is, a habeas petitioner
bears the burden of proving, by “a preponderance of
competent evidence, ” that the performance of his trial
or appellate attorney was deficient; and,
that the deficient performance prejudiced his
defense. Chandler v. United States, 218 F.3d
1305, 1313 (11th Cir. 2000) (en banc).
“Because a petitioner's failure to show either
deficient performance or prejudice is fatal to a
Strickland claim, a court need not address both
Strickland prongs if the petitioner fails to satisfy
either of them.” Kokal v. Sec'y, Dep't of
Corr., 623 F.3d 1331, 1344 (11th Cir. 2010) (citations
omitted). As stated in Strickland, “[i]f it is
easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice, which we expect will often
be so, that course should be followed.” 466 U.S. at
The Performance Prong
satisfy the performance prong, a petitioner must establish
that counsel's performance was unreasonable by the
preponderance of the evidence. Stewart v. Sec'y,
Dep't of Corr., 476 F.3d 1193, 1209 (11th Cir. 2007)
(citing Chandler v. United States, 218 F.3d 1305,
1313 (11th Cir. 2000)).
Sixth Amendment does not guarantee a defendant the very best
counsel or the most skilled attorney, but only an attorney
who performed reasonably well within the broad range of
professional norms. Stewart, 476 F.3d at 1209. The
court does not consider “what the best lawyers would
have done”; instead the court must determine
“whether some reasonable lawyer at the trial could have
acted, in the circumstances, as defense counsel acted at
trial.” White v. Singletary, 972 F.2d 1218,
1220 (11th Cir. 1992).
scrutiny of counsel's performance must be highly
deferential, because “[r]epresentation is an art, and
an act or omission that is unprofessional in one case may be
sound or even brilliant in another.”
Strickland, 466 U.S. at 693. Indeed, reviewing
courts “must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance.” Id. at
689. This strong presumption of competent assistance creates
a heavy burden of persuasion: “petitioner must
establish that no competent counsel would have taken the
action that his counsel did take.”
Stewart, 476 F.3d at 1209 (quoting
Chandler, 218 F.3d at 1315) (emphasis added).
court can not grant relief on ineffectiveness grounds unless
a petitioner shows that “no reasonable lawyer,
in the circumstances, would have done so.” Rogers
v. Zant, 13 F.3d 384, 386 (11th Cir. 1994) (emphasis
examining counsel's performance at the penalty phase of
trial, the court must decide “whether counsel
reasonably investigated possible mitigating factors and made
a reasonable effort to present mitigating evidence to the
sentencing court.” Stewart, 476 F.3d at 1209
(quoting Henyard v. McDonough, 459 F.3d 1217, 1242
(11th Cir. 2006). To meet the requirements of
Strickland, counsel does not need to investigate
“every conceivable line of mitigating evidence”
regardless of its likelihood of benefitting the defendant at
sentencing. Pittman v. Sec'y, Florida Dep't of
Corr., 871 F.3d 1231, 1250 (11th Cir. 2017) (quoting
Wiggins v. Smith, 539 U.S. 510, 533 (2003)).
fact, the Strickland standard does not even
“require defense counsel to present mitigating evidence
at sentencing in every case.” Id. Rather, the
Strickland standard for counsel's performance is
“reasonableness under prevailing professional
norms.” Strickland, 466 U.S. at 688. And, of
course, reasonableness depends upon the context of the
particular case. See Wiggins, 539 U.S. at 522-23.
This objective standard of reasonableness means that
“whether the challenged actions of counsel were the
product of a deliberate strategy or mere oversight”
does not matter; counsel's actual motivation is not
relevant but instead “what reasonably could have
motivated counsel.” Pittman v. Sec'y, Florida
Dep't of Corr., 871 F.3d at 1250 (quoting Gordon
v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008)).
The Prejudice Prong
petitioner also must meet a high burden to establish that his
lawyer's deficient performance caused prejudice to his
case. Van Poyck v. Fla. Dep't of Corr., 290 F.3d
1318, 1322 (11th Cir. 2002). The petitioner does not meet
that high burden merely by showing “that the errors had
some conceivable effect on the outcome of the
proceeding.” Id. (quoting Strickland,
466 U.S. at 693). Instead, a petitioner must show
“‘a reasonable probability that, absent the
errors, the sentencer . . . would have concluded that the
balance of aggravating and mitigating circumstances did not
warrant death.'” Stewart, 476 F.3d 1193,
1209 (11th Cir. 2007) (quoting Strickland, 466 U.S.
evaluating whether the petitioner has shown a reasonable
probability that, if counsel had not been deficient, he would
not have been sentenced to death, the court must
“consider ‘the totality of the available
mitigation evidence - both that adduced at trial, and the
evidence adduced in the habeas proceeding' - and
‘reweig[h] it against the evidence in
aggravation.'” Porter v. McCollum, 558
U.S. 30, 41 (2009) (quoting Williams v. Taylor, 529
U.S. 362, 397-398 (2000)); see also Sears v. Upton,
561 U.S. 945, 956 (2010) (holding that a proper prejudice
analysis under Strickland must take into account the
newly uncovered mitigation evidence, along with the
mitigation evidence introduced during the penalty phase of
the trial, to assess whether a reasonable probability arises
that the petitioner would have received a different sentence
after a constitutionally sufficient mitigation
THE EVIDENTIARY HEARING
amended petition, Mr. Williams alleges that trial counsel
were ineffective during the penalty phase of the trial
because they failed to adequately investigate and present
mitigation evidence to show that he should not have been
sentenced to death. (Doc. 5 at 38-65).
he claims that trial counsel were ineffective because they
failed to collect documentary evidence and hire a mitigation
specialist; failed to thoroughly investigate Mr.
Williams's history, including that he was sexually abused
as a child; failed to interview Mr. Williams's closest
friend Alister Cook; failed to adequately interview and
prepare the penalty phase witnesses; failed to compile Mr.
Williams's history of abuse and neglect; failed to
investigate his family history of mental illness; failed to
show that Mr. Williams's background contributed to his
committing capital murder; and failed to present his
redeeming characteristics. (Id.). Mr. Williams
argued that an evidentiary hearing would allow him to produce
witnesses whose testimony could prove his claim that
counsel's failure to investigate was constitutionally
ineffective. (Doc. 51 at 5-26).
Williams argues that, had counsel performed an adequate
penalty phase investigation, they would have learned, and
been able to present evidence that: a) his childhood was
defined by chaos, abandonment, and abuse; b) his difficult
upbringing was influenced by “an extensive history of
dissolution and dysfunction” in his family; c) the
family history of alcoholism contributed to his early and
excessive use of alcohol; d) he was sexually abused by an
older boy when he was a child; e) his family has an extensive
history of childhood sexual abuse; and f) his traumatic
childhood experiences were psychologically damaging. (Doc. 88
Williams called witnesses at the evidentiary hearing who
testified to the facts he claims should have been discovered
by trial counsel and presented during the penalty phase. He
argues that if counsel had performed an adequate penalty
phase investigation, they would have learned and been able to
present the following evidence.
Childhood Defined by Chaos, Abandonment, and Abuse
Williams testified that Mr. Williams, her second child, was
born when she was sixteen years old. (Doc. 92 at 158-59).
Before he was born, his older sister Aquea was sent to New
York to live with her paternal grandmother, and never
returned to live with Charlene. (Id. at 159-60). His
father, Michael Daniels, was not involved in his life when
Mr. Williams was “small, ” but “became
involved later on in life, ” when he was around
thirteen or fourteen. (Id. at 161).
his early years, Charlene and Mr. Williams “bounced
from place to place.” (Doc. 88 at 53). They lived with
Charlene's grandparents, Ralph and Beulah Williams, in
“the old house, ” a dilapidated house without a
bathroom, heating, air conditioning, or hot water (Doc. 92 at
116, 206); they lived with family friends, Della and Will
Bothwell (Doc. 93 at 7, 23); they lived with Charlene's
friend Olivia Mostella and her three children in Ashville,
Alabama (Doc. 92 at 161-62); and they moved to Missouri with
the Mostellas for about four months. (Id. at
166-67). Eloise Williams testified that when they lived with
the Mostellas, Charlene and Olivia left the children alone at
home with Olivia's elderly mother while they went out
partying and drinking. (Doc. 92 at 112). Mr. Williams
testified that when they lived with Olivia, her son, Mario
Mostella, sexually assaulted him three or four times, over
the course of “a couple of years, ” beginning at
the age of four. (Doc. 91 at 118-19). When they returned to
Ashville, Charlene lived with her grandmother for a while;
with Mary Mostella, Olivia Mostella's mother, for a
while; moved into an apartment in Gadsden; then finally moved
back to Ashville. (Id. at 167-68).
this time, Charlene gave birth to three more children.
(Id.). When Mr. Williams was around nine years old,
Charlene began a six-year relationship with Jeff Deavers, who
was physically and verbally abusive to her,
“sometimes” in front of Mr. Williams. (Doc. 92 at
had poor parenting skills: she left the children to fend for
themselves; they were not supervised appropriately; and at
times, they were not clean or “well taken care
of.” (Id. at 117). During the time period when
Mr. Williams was around five to ten years old, family members
tried to help Charlene by taking her children in to live with
them. (Id. at 117-21).
when Mr. Williams was about seven or eight years old, he
moved in with his aunt Eloise Williams. (Id. at 119,
169). During this time, Mr. Williams moved back and forth
between the homes of his great grandmother, Beulah Williams,
and his aunt Eloise Williams. (Doc. 92 at 169). Eloise took
him to Sunday School and church, helped him with his
homework, and allowed him to play baseball. (Id. at
119- 20, 124-26). While he lived with Eloise, Mr. Williams
was “sullen, withdrawn, unhappy, ” and had issues
with bed-wetting. (Id. at 125-26).
Williams lived with Eloise until he was twelve or thirteen
years old. (Id. at 127). Eloise testified that when
Mr. Williams was in middle school, he started getting in
trouble at school, “getting in fights, stealing and
just different things.” (Doc. 92 at 126-27). At one
point, Eloise caught him peeping through the bathroom door at
her. (Id. at 127). When Mr. Williams was twelve or
thirteen years old, Eloise took him back to live with
Charlene because he wanted to live with Charlene.
was fourteen years old, Mr. Williams finally met his father,
Michael Daniels, and moved in with him for about nine months.
(Doc. 91 at 116). Dr. Matthew Mendel, a clinical
psychologist, testified at the evidentiary hearing that Mr.
Williams had “wondered about, questioned, struggled and
worried about” his father his entire life, hoping that
the reason his father never came to visit him was because he
did not know Mr. Williams existed. (Doc. 93 at 42).
Williams argues that rather than investigating his family
history and presenting “available evidence of
Marcus's abandonment by his mother, as well as the
itinerant and dysfunctional lifestyle he was subject to while
he was with her, ” trial counsel elicited testimony in
the penalty phase from Charlene, minimizing the instability
in Mr. Williams's life, and leaving the jury with the
impression that he “spent lots of time with his
mother.” (Doc. 88 at 65).
Mr. Williams points to the following portions of
Charlene's testimony in the penalty phase:
Q. Where was [Mr. Williams] when he wasn't with you?
A. He lived with my grandmother and my aunt. They helped me
because I ...