Williams v. State

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE.

         This 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 his trial.

         I. INTRODUCTION

         On 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.

         II. PROCEDURAL HISTORY

         Court-appointed attorneys Erskine Funderburg and Tommie Wilson^[1]represented 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).

         The 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 night.” FN.1.

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 crime.

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 (Ala. 1987).

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).

         At the 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. at 639).

         The 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).

         In 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 60).

         In 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.

         Mr. 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).

         This 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.

         III. LEGAL STANDARD

         To 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 687.

         A 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 697.

         A. The Performance Prong

         To 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)).

         The 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).

         Judicial 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).

         The 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 added).

         When 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)).

         In 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)).

         B. The Prejudice Prong

         A 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. at 695).

         In 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 investigation.).

         IV. THE EVIDENTIARY HEARING

         In his 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).

         Specifically, 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^[2]; 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).

         Mr. 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 at 50-102).

         Mr. 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.

         A. Childhood Defined by Chaos, Abandonment, and Abuse

         Charlene 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).

         During 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).

         During 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 170-74).

         Charlene 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).

         Eventually, 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).

         Mr. 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. (Id.).

         When he 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).

         Mr. 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).

         Specifically, 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 ...