United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION
ABDUL
K. KALLON UNITED STATES DISTRICT JUDGE.
Kenneth
Eugene Smith has petitioned for a writ of habeas corpus under
28 U.S.C. § 2254, challenging his 1996 capital murder
conviction and death sentence in an Alabama state court.
Smith alleges that a variety of constitutional violations
require reversal of his conviction and/or sentence. The
parties have fully briefed Smith's claims. After careful
consideration of the record, the pleadings, and the
applicable provisions of 28 U.S.C. § 2254, the court
finds that Smith has not shown that he is due an evidentiary
hearing on any of his claims, and he is not entitled to
habeas relief. Accordingly, Smith's petition is due to be
denied.
I.
PROCEDURAL HISTORY
On
April 7, 1988, Smith was indicted in the Colbert County
Circuit Court on one count of capital murder for the death of
Elizabeth Dorlene Sennett. Vol. 1, Tab 3 at
65-66.[1] The indictment charged that Smith
intentionally killed Mrs. Sennett by beating her and stabbing
her with a knife, for pecuniary consideration of one thousand
dollars, in violation of Alabama Code § 13A-5-40(a)(7).
Id. at 65. After a trial in Jefferson County,
Alabama, due to a venue transfer because of “wide
publicity in the newspaper, television and radio media,
” Vol. 40 at 839-40, a jury convicted Smith of capital
murder in November 1989. Vol. 1, Tab 3 at 125. The jury
recommended a death sentence by a vote of 10 to 2,
id. at 126, which the trial judge accepted and
sentenced Smith to death, id. at 130.
The
Alabama Court of Criminal Appeals overturned Smith's
conviction in 1992, due to a violation of Batson v.
Kentucky, 476 U.S. 79 (1986). Smith v. State,
588 So.2d 561 (Ala.Crim.App.1991), on return to
remand, 620 So.2d 727 (Ala.Crim.App.1992), on return
to second remand, 620 So.2d 732 (Ala.Crim.App.1992).
Smith was retried again in Jefferson County and convicted
once again in April 1996. Vol. 1, Tab 2 at 26. This time, the
jury recommended by a vote of 11 to 1 a sentence of to life
imprisonment without the possibility of parole. Vol. 1, Tab 3
at 114. However, the trial court overrode the jury's
recommendation and sentenced Smith to death. Id. at
31-37.
The
Alabama Court of Criminal Appeals affirmed Smith's
conviction and death sentence, and denied his application for
rehearing. Smith v. State, 908 So.2d 273
(Ala.Crim.App.2000). The Alabama Supreme Court initially
granted Smith's certiorari petition on June 4, 2003, but
subsequently quashed the writ, as having been improvidently
granted. Ex parte Smith, 908 So.2d 302 (Ala. 2005).
The United States Supreme Court denied Smith's petition
for a writ of certiorari. Smith v. Alabama, 546 U.S.
928 (2005).
Smith
timely filed a Rule 32 petition in the Jefferson County
Circuit Court to vacate his conviction and sentence, Vol. 31,
Tab 55 at 245-328, and amended the petition three months
later, Vol. 32, Tab 57 at 428-520. The state responded, Vol.
36, Tab 74, and, in September 2007, the trial court entered a
joint consent order setting a schedule for discovery, for the
filing of additional pleadings, and for a status conference,
Vol. 32, Tab 59. The court indicated that it would enter a
schedule for discovery and an evidentiary hearing after it
ruled on Smith's discovery motion and the state's
motion for partial dismissal. Vol. 32, Tab 59 at 529. Smith
then filed a motion for discovery, Vol. 32, Tab 60, and the
state filed a motion for partial dismissal, seeking summary
disposition of many of the claims raised in the amended
petition, Vol. 32, Tab 61. Thereafter, the state responded to
Smith's motion for discovery, [2] and Smith filed an
opposition to the motion for partial dismissal. Vol. 32, Tab
63 at 588 - Vol. 33 at 617; Vol. 32, Tab 62. Ultimately, the
trial court denied Smith's motion for discovery and
summarily denied his Rule 32 petition, Vol. 30, Tab 51 and
Tab 52 at 9-55, and subsequently denied Smith's motion
for reconsideration, Vol. 33, Tab 64 at 620-30; Vol. 33, Tab
65 at 667-69. On December 17, 2010, the Alabama Court of
Criminal Appeals reversed the trial court and remanded the
case to the trial court to address the allegations in
Smith's amended Rule 32 petition.[3]Smith v. State, 160
So.2d 40 (Ala.Crim.App.2010).
On
remand, Smith filed a motion for discovery and an evidentiary
hearing, Vol. 37, Tab 76 at 346-79, and the trial court
granted the motion for discovery, Vol. 36, Tab 72 at 102-03.
The trial court also entered an order directing Smith to
“elaborate further” on several of his claims, and
allowing him to “submit any affidavits that he may
choose in support of each of his claims . . . in lieu of
testimony in support of” those claims. Vol. 36, Tab 72
at 100-01. Smith complied, and filed a memorandum elaborating
on his claims, along with four affidavits and numerous
exhibits. Vol. 38, Tab 78 - Vol. 39, Tab 82. Thereafter, the
state responded to Smith's request for an evidentiary
hearing and the memorandum, Vol. 37, Tab 75, and Smith filed
a reply further elaborating on his claims, Vol. 40, Tab 84.
The trial court issued its return to remand, again denying
Smith's petition. Vol. 36, Tab 73 at 104-48.
On
February 10, 2012, the Court of Criminal Appeals remanded the
case again “because the trial court failed to comply
with Rule 32.9, Ala. R. Crim. P., when it summarily dismissed
some of the claims on which it had already permitted Smith to
present evidence.” Smith v. State, 160 So.3d
40, 53 (Ala.Crim.App.2012). The court directed the trial
court to “make specific findings relating to each
material issue of fact presented on those claims involving
the hair and the afghan on which the trial court permitted
Smith to present evidence.” Id. at 54. And, in
response, the trial court issued its second return to remand,
again denying the relief. Vol. 43, Tab 90. The Court of
Criminal Appeals found that the trial court had made adequate
fact findings as to one of the three claims, but not to the
other two, and remanded the case again. Vol. 43, Tab 94.
On
December 12, 2012, the trial court issued its third return to
remand on the remaining claims. Vol. 43, Tab 96. The Court of
Criminal Appeals affirmed the trial court, Vol. 44, Tab 100,
and overruled Smith's application for rehearing, Vol. 45,
Tab 102.
After
the Alabama Supreme Court denied Smith's petition for
writ of certiorari, Vol. 46, Tab 104, Smith filed a §
2254 petition in this court. Doc. 1. Thereafter, Respondents
filed an answer and brief, docs. 21, 25, and Smith replied,
doc. 31.
II.
THE OFFENSE OF CONVICTION
In its
opinion on direct appeal, the Court of Criminal Appeals
summarized the evidence in the case:
The State's evidence tended to show the following. On
March 18, 1988, the Reverend Charles Sennett, a minister in
the Church of Christ, discovered the body of his wife,
Elizabeth Dorlene Sennett, in their home on Coon Dog Cemetery
Road in Colbert County. The coroner testified that Elizabeth
Sennett had been stabbed eight times in the chest and once on
each side of the neck, and had suffered numerous abrasions
and cuts. It was the coroner's opinion that Sennett died
of multiple stab wounds to the chest and neck.
The evidence established that Charles Sennett had recruited
Billy Gray Williams, who in turn recruited Smith and John
Forrest Parker, to kill his wife. He was to pay them each $1,
000 in cash for killing Mrs. Sennett. There was testimony
that Charles Sennett was involved in an affair, that he had
incurred substantial debts, that he had taken out a large
insurance policy on his wife, and that approximately one week
after the murder, when the murder investigation started to
focus on him as a suspect, Sennett committed suicide. Smith
detailed the following in his confession to police:
About one month prior to March 18, 1988, I was contacted by
Billy Williams. Billy came over to my house and we talked out
on the front porch. It was late afternoon. Billy said that he
knew someone that wanted somebody hurt. Billy said that the
person wanted to pay to have it done. Billy said the person
would pay $1500 to do the job. I think I told Billy I would
think about it and get back with him. Billy lives at the
corner of Tuscaloosa Street and Cypress Street near the
telephone company. Billy drives a red and white Thunderbird.
Billy and I are good friends. Billy and I talked about this
several times before I agreed to do it. I had already talked
with John Parker about helping me.
I think I first met Charles Sennett about two weeks prior to
the murder. Billy arranged the meeting. At the time I met Mr.
Sennett I did not know who he was. I did not ask his name and
he did not ask what my name was. Mr. Sennett told me that he
wanted somebody taken care of. Mr. Sennett said that the
person would be at home, that they never had any visitors.
Mr. Sennett said that the house was out in the country. At
that time I just listened to his proposal and told him I
would get back with him. When we talked we sat in Mr.
Sennett's truck in front of Billy's apartment. I gave
him my phone number.
Mr. Sennett called me a couple of times to see if I had made
a decision. Sometime between the Monday prior to the murder
and the Thursday prior to the murder, Mr. Sennett learned
that John and I would do what he wanted. I met with Mr.
Sennett on Tuesday prior to the murder in the coffee[house]
at ECM. At this meeting Mr. Sennett drew me a diagram of his
house and told me that his wife and he would be out of town
on Wednesday, to go down to the house and look around. By the
time Sennett and I met at ECM I had learned through
conversations with him that it was his wife that he wanted
killed and the price agreed was $1, 000 each - excuse me -
$1, 000 each for Billy Williams, John Parker and I.
The next meeting was on Thursday prior to the murder in front
of Billy's apartment again. Billy, Mr. Sennett and I sat
in Mr. Sennett's silver car and talked. I don't
recall what time it was exactly. I think it was in the
morning. At this meeting Sennett gave me $200 and showed us
the rest of the money. Two hundred dollars was for anything
we needed to do the job. John Parker sat in my car while
Billy and I talked with Mr. Sennett. The murder was supposed
to look like a burglary that went bad. This was Mr.
Sennett's idea. Sennett told me to take whatever I wanted
from the house. It was agreed for John and I to do the murder
and then come back to Billy's apartment - to Billy's
house - excuse me - and get the rest of our money. This
meeting only lasted a short while. Sennett told us that he
would be gone from 8:30 until noon. Then on 3/18 of ‘88
. . . Friday, John and I got together around 8:30. We were in
John's car, a Pontiac Grand Prix, gold. John drove to
Muscle Shoals, then I drove down to the Sennett house. John
had brought a black handle survival knife and a black
holster. At this time we still did not know how we were going
to kill Mrs. Sennett.
John and I got to the Sennett house around 9:30, I think. I
parked at the back of the house near a little patio that led
into the house. I went to a door to the left of the car. I
think there was a white freezer nearby. I knocked on the door
and Mrs. Sennett came to the door. I told Mrs. Sennett that
her husband had told us that we could come down and look
around the property to see about hunting on it. Mrs. Sennett
asked my name. I told her I was Kenny Smith. She went to the
phone and called her husband and came back and told us it was
okay to look around.
John and I looked around the property for a while then came
back to the house. John and I went back to the door. We told
Mrs. Sennett we needed to use the bathroom and she let us
inside.
I went to the bathroom nearest the kitchen and then John went
to the bathroom. I stood at the edge of the kitchen talking
with Mrs. Sennett. Mrs. Sennett was sitting at a chair in the
den. Then I heard John coming through the house. John walked
up behind Mrs. Sennett and started hitting her. John was
hitting her with his fist. I started getting the VCR while
John was beating Mrs. Sennett. John hit Mrs. Sennett with a
large cane and anything else he could get his hands on. John
went into a frenzy. Mrs. Sennett was yelling just stop, we
could have anything we wanted.
As John was beating up Mrs. Sennett, I messed up some things
in the house to make it look like a burglary. I took the VCR
out to the car.
The last place I saw Mrs. Sennett she was lying near the
fireplace covered with some kind of blanket. I had gone
outside to look in the storage buildings when I saw John run
out to the pond and throw some things in it. I also took a
small stereo from the house - “also, ” is the
last word.
I don't know what brand it was or where in the house I
got it. The VCR was a Samsung. I got it from under the TV set
in the den. When John got back to the car we drove back to
Billy's apartment to get our money.
On the way back John told me that he had stabbed her once in
the neck. I never stabbed Mrs. Sennett at all. When John and
I got to Billy's, we were given $900 a piece. Billy gave
us the money.
At the time of the murder I never [knew] Charles
Sennett's name or his wife's. It was only when it
came out in the newspaper that I learned the name of the lady
that was killed and Charles Sennett.
I took the Samsung VCR home with me. The last time I saw the
stereo it was in John's car. It was around noon when we
got to Billy's apartment. Then on 3/31/88 - . . .
Thursday - my house was searched by investigators and they
found the VCR. I was brought to the Colbert County Courthouse
where I was advised of my rights. After being advised of my
rights, I gave Investigator May this written statement.
Smith's
statement to police was corroborated at trial. Donald
Buckman, a friend of Smith's, testified that Smith
approached him about one week before the murder and asked him
if he would be interested in participating in beating someone
up in exchange for money. Another witness, Brent Barkley,
testified that Smith told him that he had been hired to beat
up someone. Barkley also stated that he saw Smith on the
evening of the murder and that Smith's hand was
“bruised and wrapped.” There was also testimony
that Smith had in his possession a large amount of money
immediately after the murder.
Smith's
defense at trial was that he participated in the assault of
Elizabeth Sennett but that he did not intend to kill her.
Counsel in opening statement stated the following:
[Smith] agreed with Sennett to go beat Elizabeth Dorlene
Sennett, to rough her up, to make it look like a robbery for
fast cash. That is the terms they used. It was not to kill
Mrs. Sennett. It was not to take her life. As shameful and as
vile, it was nothing more or nothing less than to beat her up
and to take [sic]. And that plan, what they agreed to - and
you will hear evidence of this - that as evil as that plan
was, that is all it was.
Smith, 908 So.2d at 279-81 (alterations in original)
(footnotes omitted).
III.
THE SENTENCE
The
trial court issued a sentencing order immediately following
the sentencing hearing. Vol. 1, Tab 3 at 31-37. Thereafter,
the trial court amended the sentencing order to set
“out the things that the Court considered in sentencing
the defendant” and “refine” the sentencing
order, noting that:
The Court considering the aggravating circumstances as set
out and enumerated in § 13A-5-49 of the Code of Alabama,
as amended:
(A) the Court finds from the evidence introduced at the trial
and re-introduced at the punishment hearing before the jury
that the defendant, Kenneth Eugene Smith, committed the
murder for pecuniary gain, namely for the sum of $1, 000. The
court finds that said defendant was, in fact, paid that sum
for said intentional killing. The court finds that this is an
aggravating circumstance pursuant to § 13A-5-49(6) of
the Code of Alabama, as amended, and the Court has considered
said aggravating circumstance.
The Court finds that the defendant was not a person under
sentence of imprisonment; therefore, the Court does not
consider the aggravating circumstance listed in Section
13A-5-49(1), Code of Alabama, the Court finding that said
aggravating circumstance does not exist in this case.
The Court finds the defendant was not previously convicted of
another capital murder, nor previously convicted of a felony
involving the use or threat of violence to the person;
therefore, the Court does not consider the aggravating
circumstance listed in Section 13A-5-49(2), Code of Alabama,
the Court finding that said aggravating circumstance does not
exist.
The Court finds that the defendant did not knowingly create a
great risk of death to many persons, therefore, the Court
does not consider the aggravating circumstance listed in
Section 13A-5-49(3), Code of Alabama, the Court finding that
said aggravating circumstance does not exist.
The Court finds that this offense was not committed while the
defendant was engaged or was an accomplice in the commission
of or an attempt to commit, or flight after committing, or
attempting to commit rape, robbery, burglary or kidnapping,
therefore, the Court does not consider the aggravating
circumstance listed in Section 13A-5-49(4), Code of Alabama,
the Court finding that said aggravating circumstance does not
exist.
The Court does not find that the offense was committed for
the purpose of avoiding or preventing a lawful arrest or
effecting an escape from custody, therefore the Court does
not consider the aggravating circumstance listed in Section
13A-5-49(5), Code of Alabama, the Court finding that said
aggravating circumstance does not exist.
The Court does not find that the offense was committed to
disrupt or hinder the lawful exercise of any governmental
function or the enforcement of laws; therefore, the Court
does not consider the aggravating circumstance listed in
Section 13A-5-49(7), Code of Alabama, the Court finding that
said aggravating circumstance does not exist.
The Court does not find that the offense was especially
heinous, atrocious or cruel compared to other capital
offenses, therefore the Court does not consider the
aggravating circumstance listed in Section 13A-5-49(8), Code
of Alabama, the Court finding that said aggravating
circumstance does not exist.
(B) The Court now proceeds to consider the mitigating
circumstances as set out and enumerated in § 13A-5-51 of
the Code of Alabama, as amended, and other mitigating
circumstances proved at the punishment hearing before the
jury.
The Court finds 2 statutory mitigating circumstances in this
cause and that is the age of the defendant at the time of the
commission of the crime in that he was 22 years of age.
However, the Court does find from the evidence that the
defendant was normal and not retarded, had attended high
school and worked several jobs, was married and had one (1)
minor child.
The Court further finds that the defendant had no significant
history of prior criminal activity.
The Court further finds as to a non-statutory mitigating
certain factors, that the defendant appeared to be remorseful
for what he had done, and he gave a voluntary confession.
However, the defendant did not turn himself in to the police
and at the time of his arrest in his home in Florence,
Alabama, there was found in his home a VCR that was the
property of the victim with blood still on it.
The Court further finds as a non-statutory mitigating
[factor], the defendant's good conduct in jail; and in
counseling others including family members.
During his tenure in the Colbert County Jail, Tuscumbia,
Alabama, he warned a jail-guard of an impending breakout of
jail by other inmates. The jail-guard, Alton Hankins,
testified to this. While in prison with the Board of
Corrections, he has adjusted and upgraded his education and
counseled other people.
The Court further finds as a non-statutory mitigating factor
that the defendant was neglected and deprived in his early
childhood.
The Court further finds that the capital offense was not
committed while the defendant was under the influence of
extreme mental or emotional disturbance, accordingly the
Court does not consider the mitigating circumstance listed in
Section 13A-5-51(2), Code of Alabama, the Court finding that
said mitigating circumstance does not exist in this case.
The Court further finds from the evidence that the victim was
not a participant in the defendant's conduct or consented
to it; therefore, the Court finds that the mitigating
circumstance listed in Section 13A-5-51(3), Code of Alabama,
does not exist and the Court does not consider it.
The Court does not find from the evidence that the defendant
was an accomplice in a capital offense committed by another
person and that his participation was relatively minor. The
Court finds from the evidence in this case that the
defendant, Kenneth Eugene Smith, and John Forrest Parker both
killed the victim by beating and hitting her with different
objects and stabbing her while the victim was pleading with
them. Therefore, the Court finds that the mitigating
circumstance listed in Section 13A-5-51(4), Code of Alabama,
does not exist and the court does not consider it.
The Court does not find from the evidence that the defendant
acted under extreme duress or under the substantial
domination of another person; therefore, the Court finds that
the mitigating circumstance listed in Section 13A-5-51(5),
Code of Alabama, does not exist and the Court does not
consider it.
The Court does not find from the evidence that the capacity
of the defendant to appreciate the criminality of his conduct
or to conform his conduct to the requirements of law was
substantially impaired; the Court had evidence before it
regarding the defendant's actions during and after the
murder of Elizabeth Dorlene Sennett which demonstrate[s] that
his capacity to appreciate the criminality of his conduct or
to conform his conduct to the requirements of the law was not
substantially impaired. The defendant's actions in
throwing away the murder weapons after the killing, his
attempting to make it look like a burglary, and other
evidence that was presented, is all evidence that the
defendant at the time in question appreciated that his
conduct was criminal, and that he might be apprehended and
for that reason did what he could to avoid apprehension.
Accordingly, the Court finds that the mitigating circumstance
listed in Section 13A-5-51(6), Code of Alabama, does not
exist and the Court does not consider it.
The Court does find that the jury's recommendation is a
mitigating factor and the Court has consider[ed] said
mitigating factor at this sentence hearing. However, the jury
was allowed to hear an emotional appeal from the
defendant's mother. The Court does not find that the
defendant's problems during his childhood is a mitigating
factor.
Also, there was evidence presented to the jury that the
husband of the victim was the instigator of the killing of
his wife, but the fact that the victim's husband
conspired with the defendant and his co-defendants to kill
his wife does not make this defendant any less culpable and
is not a mitigating factor.
The Court has also considered the Presentence Investigation
Report as set out in Section 13A-5-47, Code of Alabama, as
amended, in determining a sentence in this cause.
The Court having considered the aggravating circumstances and
the mitigating circumstances, finds that the aggravating
circumstances due to the nature of the crime and the
defendant's involvement in it outweighs the mitigating
circumstances presented, and the mitigating factor that the
jury recommended a sentence of life without parole and the
vote was eleven (11) for life and one (1) for death.
The Court does find that there is a reasonable basis for
enhancing the jury's recommend[ed] sentence for the
reasons stated herein that this was a murder for hire and the
defendant had the opportunity to reflect and withdrawn [sic]
from his actions and chose not to do this; he was paid for
his actions; that the defendant's capacity to appreciate
the criminality of his conduct or to conform his conduct to
the requirements of the law was not substantially impaired.
Therefore, on this 21st day May, 1996, with the defendant,
Kenneth Eugene Smith being present, and having been convicted
by a jury of capital murder and the Court having weighed the
aggravating circumstances against the mitigating
circumstances and factors, and the Court having found that
the aggravating circumstances outweigh the mitigating
circumstances and factors;
IT IS THEREFORE ORDERED, ADJUDGED, AND
DECREED by the Court, and it is the judgment of the
Court, and the sentence of law that the defendant, Kenneth
Eugene Smith, suffer death by electrocution. The Sheriff of
Jefferson County, Alabama is directed to deliver Kenneth
Eugene Smith to the custody of the Director of the Department
of Corrections and the designated executioner shall, at the
proper place for execution of one sentenced to suffer death
by electrocution, cause a current of electricity of
sufficient intensity to cause death in the application and
continuance of such current to pass through the said Kenneth
Eugene Smith until the said Kenneth Eugene Smith is dead. May
God have mercy on you!
DONE AND ORDERED this 25th day of September,
1997.
Vol. 6, Tab 4 at 1092-97.
IV.
THE SCOPE OF FEDERAL HABEAS REVIEW
“The
habeas statute unambiguously provides that a federal court
may issue the writ to a state prisoner ‘only on the
ground that he is in custody in violation of the Constitution
or law or treaties of the United States.'”
Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (quoting 28
U.S.C. § 2254(a)). As such, this court's review of
claims seeking habeas relief is limited to questions of
federal constitutional and statutory law. Claims that turn
solely upon state law principles fall outside the ambit of
this court's authority to provide relief under §
2254. See Alston v. Department of Corrections, 610
F.3d 1318, 1326 (11th Cir. 2010).
A.
Exhaustion of State Court Remedies: The First Condition
Precedent to Federal Habeas Review
A
habeas petitioner is required to present his federal claims
to the state court and to exhaust all of the procedures
available before seeking relief in federal court. 28 U.S.C.
§ 2254(b)(1); Medellin v. Dretke, 544 U.S. 660,
666 (2005). That requirement ensures that state courts are
afforded the first opportunity to address federal questions
affecting the validity of state court convictions and, if
necessary, correct violations of a state prisoner's
federal constitutional rights. As the Eleventh Circuit has
explained:
In general, a federal court may not grant habeas corpus
relief to a state prisoner who has not exhausted his
available state remedies. . . .
Exhaustion of state remedies requires that the state prisoner
“fairly presen[t] federal claims to the state courts in
order to give the State the opportunity to pass upon and
correct alleged violations of its prisoners' federal
rights.” Duncan v. Henry, 513 U.S. 364, 365
(1995) (citing Picard v. Connor, 404 U.S. 270,
275-76 (1971) (internal quotation marks omitted). The Supreme
Court has written these words:
[T]hat the federal claim must be fairly presented to the
state courts . . . . it is not sufficient merely that the
federal habeas applicant has been through the state courts. .
. . Only if the state courts have had the first opportunity
to hear the claim sought to be vindicated in a federal habeas
proceeding does it make sense to speak of the exhaustion of
state remedies.
Picard, 404 U.S. at 275, 92 S.Ct. at 512. . . .
Thus, to exhaust state remedies fully the petitioner must
make the state court aware that the claims asserted present
federal constitutional issues. “It is not enough that
all the facts necessary to support the federal claim were
before the state courts or that a somewhat similar state-law
claim was made.” Anderson v. Harless, 459 U.S.
4, 5-6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (citations
omitted).
Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir.
1998).
B.
The Procedural Default Doctrine: The Second Condition
Precedent to Federal Habeas Review
1.
General principles
It is
well established that if a habeas petitioner fails to raise
his federal claim in the state court system at the time and
in the manner dictated by the state's procedural rules,
the state court can decide the claim is not entitled to a
review on the merits. Stated differently, “the
petitioner will have procedurally defaulted on that
claim.”[4] Mason v. Allen, 605 F.3d 1114,
1119 (11th Cir. 2009). Generally, if the last state court to
examine a claim states clearly and explicitly that the claim
is barred because the petitioner failed to follow state
procedural rules, and that procedural bar provides an
adequate and independent state ground for denying relief,
then federal review of the claim also is precluded by federal
procedural default principles. See Coleman v.
Thompson, 501 U.S. 722, 731 (1991); Cone v.
Bell, 556 U.S. 449, 465 (2009) (“[W]hen a
petitioner fails to raise his federal claims in compliance
with relevant state procedural rules, the state court's
refusal to adjudicate the claim ordinarily qualifies as an
independent and adequate state ground for denying federal
review.”). And, the Supreme Court defines an
“adequate and independent” state court decision
as one that “rests on a state law ground that is
independent of the federal question and adequate to
support the judgment.” Lee v. Kemna, 534 U.S.
362, 375 (2002) (quoting Coleman v. Thompson, 501
U.S. 722, 729 (1991)) (emphasis in Lee). The
questions of whether a state procedural rule is
“independent” of the federal question and
“adequate” to support the state court's
judgment, so as to have a preclusive effect on federal review
of the claim, “is itself a federal question.”
Id. (quoting Douglas v. Alabama, 380 U.S.
415, 422 (1965)).
To be
considered “independent” of the federal question,
“the state court's decision must rest solidly on
state law grounds, and may not be ‘intertwined with an
interpretation of federal law.'” Judd v.
Haley, 250 F.3d 1308, 1313 (11th Cir. 2001) (quoting
Card v. Dugger, 911 F.2d 1494, 1516 (11th Cir.
1990)). An example of intertwining would be when “the
State has made application of the procedural bar depend on an
antecedent ruling on federal law, that is, on the
determination of whether federal constitutional error has
been committed.” Ake v. Oklahoma, 470 U.S. 68,
75 (1985). Stated differently, if “the state court must
rule, either explicitly or implicitly, on the merits of the
constitutional question” before applying the
state's procedural rule to a federal constitutional
question, then the rule is not independent of federal law.
Id.
To be
considered “adequate” to support the state
court's judgment, the state procedural rule must be both
“firmly established and regularly followed.”
Lee v. Kemna, 534 U.S. at 375 (quoting James v.
Kentucky, 466 U.S. 341, 348 (1984)). The rule must be
“clear [and] closely hewn to” by the state for a
federal court to consider it as adequate. James, 466
U.S. at 346. That does not mean that the state's
procedural rule must be rigidly applied in every instance, or
that occasional failure to do so will render the rule
inadequate. “To the contrary, a [state's]
discretionary [procedural] rule can be ‘firmly
established' and ‘regularly followed' - even if
the appropriate exercise of discretion may permit
consideration of a federal claim in some cases but not
others.” Beard v. Kindler, 558 U.S. 52, 60-61
(2009). The adequacy requirement means only that the
procedural rule “must not be applied in an
arbitrary or unprecedented fashion.”
Judd, 250 F.3d at 1313 (emphasis added).
Thus,
in summary, if the procedural rule is not firmly established,
or if it is applied in an arbitrary, unprecedented, or
manifestly unfair fashion, it will not be considered
adequate, and the state court decision based upon such a rule
can be reviewed by a federal court. Card, 911 F.2d
at 1517. Conversely, if the rule is deemed adequate, the
decision will not be reviewed by this court.
2.
Overcoming procedural default
Generally,
there are three circumstances in which an otherwise valid
state-law ground will not bar a federal habeas court
from considering a constitutional claim that was procedurally
defaulted in state court: (1) where the petitioner
demonstrates that he had good “cause” for not
following the state procedural rule, and, that he was
actually “prejudiced” by the alleged
constitutional violation; or (2) where the state procedural
rule was not “firmly established and regularly
followed”; or (3) where failure to consider the
petitioner's claims will result in a “fundamental
miscarriage of justice.” See Edwards v.
Carpenter, 529 U.S. 446, 455 (2000) (Breyer, J.,
concurring).[5]
a.
The “cause and prejudice” standard
“A
federal court may still address the merits of a procedurally
defaulted claim if the petitioner can show cause for the
default and actual prejudice resulting from the alleged
constitutional violation.” Ward v. Hall, 592
F.3d 1144, 1157 (11th Cir. 2010) (citing Wainwright v.
Sykes, 433 U.S. 72, 84-85 (1977)) (emphasis added). This
so-called “cause and prejudice” standard is
framed in the conjunctive, and a petitioner must prove both
parts.
i.
“Cause”
To show
“cause, ” a petitioner must prove that
“some objective factor external to the defense impeded
counsel's efforts” to raise the claim in the state
courts. Carrier, 477 U.S. at 488. “Objective
factors that constitute cause include
“‘interference by officials'” that
makes compliance with the State's procedural rule
impracticable, and ‘a showing that the factual or legal
basis for a claim was not reasonably available to
counsel.'” McCleskey v. Zant, 499 U.S.
467, 493-94 (1991) (citations omitted). And, while
“[a]ttorney error [on direct review] that constitutes
ineffective assistance of counsel” has long been
accepted as “cause” to overcome a procedural
default, the constitutional ineffectiveness of
post-conviction counsel on collateral review generally will
not support a finding of cause and prejudice to overcome a
procedural default. Coleman, 501 U.S. at 754. This
is the case because “[t]here is no right to counsel in
state post-conviction proceedings.” Id. at 752
(citing Pennsylvania v. Finley, 481 U.S. 551 (1987);
Murray v. Giarratano, 492 U.S. 1
(1989)).[6]
ii.
“Prejudice”
A
habeas petitioner must show also that he was actually
“prejudiced” by the alleged constitutional
violation. This entails showing “not merely that the
errors at his trial created a possibility of prejudice, but
that they worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional
dimensions.” United States v. Frady, 456 U.S.
152, 170 (1982) (emphasis added). If the “cause”
is of the type described in Martinez v. Ryan, then
the reviewing court should consider whether the petitioner
can demonstrate “that the underlying
ineffective-assistance-of-trial-counsel claim is a
substantial one, which is to say that the prisoner must
demonstrate that the claim has some merit.”
Martinez, 566 U.S. at 12-15 (citing for comparison
Miller-El v. Cockrell, 537 U.S. 322');">537 U.S. 322 (2003)
(describing standards for certificates of appealability to
issue)).
b.
The “fundamental miscarriage of justice”
standard
In a
“rare, ” “extraordinary, ” and
“narrow class of cases, ” a federal court may
consider a procedurally defaulted claim in the absence of a
showing of “cause” for the default if
either: (a) a fundamental miscarriage of justice
“has probably resulted in the conviction of one who is
actually innocent, ” Smith, 477 U.S. at 537-38
(quoting Carrier, 477 U.S. at 496); or (b) the
petitioner shows “by clear and convincing evidence
that[, ] but for a constitutional error, no reasonable juror
would have found the petitioner eligible for the death
penalty, ” Schlup, 513 U.S. at 323-27 &
n.44 (quoting Sawyer v. Whitley, 505 U.S. 333, 336
(1992)).
C.
The Statutory Overlay: The Effect of the Antiterrorism and
Effective Death Penalty Act of 1996 on
Habeas Review
The
writ of habeas corpus “has historically been regarded
as an extraordinary remedy.” Brecht v.
Abrahamson, 507 U.S. 619, 633 (1993). That is especially
true when federal courts are asked to engage in habeas review
of a state court conviction pursuant to 28 U.S.C. §
2254, where “[t]he role of federal habeas proceedings,
while important in assuring that constitutional rights are
observed, is secondary and limited. Federal courts are not
forums in which to relitigate state trials.”
Id. (quoting Barefoot v. Estelle, 463 U.S.
880, 887 (1983)). “Those few who are ultimately
successful [in obtaining federal habeas relief] are persons
whom society has grievously wronged and for whom belated
liberation is little enough compensation.” Fay v.
Noia, 372 U.S. 391, 440-41 (1963). “Accordingly, .
. . an error that may justify reversal on direct appeal will
not necessarily support a collateral attack on a final
judgment.” Brecht, 507 U.S. at 634.
Congress
legislated these principles in the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”),
which amended preexisting habeas law, [7] and included
several provisions requiring federal courts to give even more
deference to state court determinations of federal
constitutional claims.
1.
28 U.S.C. § 2254(e)(1)
Section
2254(e)(1) requires district courts to presume that a state
court's factual determinations are correct, unless the
habeas petitioner rebuts the presumption with clear and
convincing evidence. See 28 U.S.C. §
2254(e)(1). Section 2254(e)(1) “modified a federal
habeas court's role in reviewing state prisoner
applications in order to prevent federal habeas
‘retrials' and to ensure that state-court
convictions are given effect to the extent possible under
law.” Bell v. Cone, 535 U.S. 685, 693 (2002)
(citing Williams v. Taylor, 529 U.S. 362, 403-04
(2000)). The deference that attends state court findings of
fact pursuant to § 2254(e)(1) applies to all habeas
claims, regardless of their procedural stance. Thus, a
presumption of correctness must be afforded to a state
court's factual findings, even when the habeas claim is
being examined de novo. See Mansfield v.
Sec'y, Dep't of Corr., 679 F.3d 1301, 1313 (11th
Cir. 2012). And, the presumption of correctness also applies
to habeas claims that were adjudicated on the merits by the
state court and, therefore, those claims are subject to the
standards of review set out in 28 U.S.C. § 2254(d)(1) or
(d)(2) discussed in the following section.
2.
28 U.S.C. § 2254(d)
“By
its terms § 2254(d) bars relitigation of any claim
‘adjudicated on the merits' in state court, subject
only to the exceptions in §§ 2254(d)(1) and
(d)(2).” Harrington v. Richter, 562 U.S. 86,
98 (2011). It does not matter whether the state court
decision contains a lengthy analysis of the claim, or is a
summary ruling “unaccompanied by explanation.”
Id. Further, the “backward-looking
language” of the statute requires an examination of the
state court decision on the date rendered. Cullen v.
Pinholster, 563 U.S. 170 (2011). That is, “[s]tate
court decisions are measured against [the Supreme]
Court's precedents as of ‘the time the state court
renders its decision.'” Id. at 182
(quoting Lockyer v. Andrade, 588 U.S. 63, 71-72
(2003)). Finally, “review under § 2254(d)(1) [and
(d)(2)] is limited to the record that was before the state
court that adjudicated the claim on the merits, ”
id. at 181, and a federal habeas court conducting
2254(d) review should not consider new evidence “in the
first instance effectively de novo, ”
id. at 182.
A
closer look at the separate provisions of 28 U.S.C. §
2254(d)(1) and (d)(2) reveals that when a state court has
made a decision on a petitioner's constitutional claim,
habeas relief cannot be granted unless it is determined that
the state court's adjudication of the claim either:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
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.
28 U.S.C. § 2254(d).[8] The “contrary to” and
“unreasonable application” clauses of §
2254(d) are “independent statutory modes of
analysis.” Alderman v. Terry, 468 F.3d 775,
791 (11th Cir. 2006) (citing Williams, 529 U.S. at
405-07).[9] When considering a state court's
adjudication of a petitioner's claim, therefore, the
habeas court must not conflate the two.
a.
The meaning of § 2254(d)(1)'s “contrary
to” clause
A state
court determination can be “contrary to” clearly
established Supreme Court precedent in at least two ways:
First, a state-court decision is contrary to this Court's
precedent if the state court arrives at a conclusion opposite
to that reached by this Court on a question of law. Second, a
state-court decision is also contrary to this Court's
precedent if the state court confronts facts that are
materially indistinguishable from a relevant Supreme Court
precedent and arrives at a result opposite to ours.
Williams, 529 U.S. at 405. See also, e.g., Brown
v. Payton, 544 U.S. 133, 141 (2005) (same); Early v.
Packer, 537 U.S. 3, 8 (2002) (per curiam)
(same); Putman v. Head, 268 F.3d 1223, 1240-41 (11th
Cir. 2001) (same). But, as the Eleventh Circuit has noted,
the majority opinion in Williams does not limit the
construction of § 2254(d)(1)'s “contrary
to” clause to the two examples set forth above.
Instead, the statutory language “simply implies that
‘the state court's decision must be substantially
different from the relevant precedent of [the Supreme]
Court.'” Alderman, 468 F.3d at 791
(quoting Williams, 529 U.S. at 405).
b.
The meaning of § 2254(d)(1)'s “unreasonable
application” clause
A state
court's determination of a federal constitutional claim
can result in an “unreasonable application” of
clearly established Supreme Court precedent in either of two
ways:
First, a state-court decision involves an unreasonable
application of this Court's precedent if the state court
identifies the correct governing legal rule from this
Court's cases but unreasonably applies it to the facts of
the particular state prisoner's case. Second, a
state-court decision also involves an unreasonable
application of this Court's precedent if the state court
either unreasonably extends a legal principle from our
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.
Williams, 529 U.S. at 407. But, “an
unreasonable application of federal law is different
from an incorrect application of federal law.”
Id. at 410 (emphasis in original). A federal habeas
court “may not issue the writ simply because that court
concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law
erroneously or incorrectly. Rather, that application
must also be unreasonable.” Id. at 411
(emphasis added). In other words, “a federal habeas
court making the ‘unreasonable application' inquiry
should ask whether the state court's application of
clearly established federal law was objectively unreasonable,
” and not whether the state court
“correctly” applied Supreme Court precedent
Id. at 409.[10]
To
demonstrate that a state court's application of clearly
established federal law was “objectively unreasonable,
” the habeas petitioner “must show that the state
court's ruling on the claim being presented in federal
court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.”
Harrington, 562 U.S. at 103. Stated another way, if
the state-court's resolution of a claim is debatable
among fairminded jurists, it is not objectively unreasonable.
c.
The meaning of § 2254(d)(2)'s clause addressing an
“unreasonable determination of the facts in light of
the evidence presented in the state court
proceeding”
Title
28 U.S.C. § 2254(d)(2) “imposes a ‘daunting
standard - one that will be satisfied in relatively few
cases.'” Cash v. Maxwell, 565 U.S. 1138,
132 S.Ct. 611, 612 (2012) (Sotomayor, J., respecting denial
of certiorari) (quoting Maxwell v. Roe, 628 F.3d
486, 500 (9th Cir. 2010)). As the Supreme Court has noted,
in related contexts, “[t]he term
‘unreasonable' is no doubt difficult to
define.” Williams v. Taylor, 529 U.S. 362,
410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). It suffices to
say, however, that a state-court factual determination is not
unreasonable merely because the federal habeas court would
have reached a different conclusion in the first instance.
Cf. Id., at 411, 120 S.Ct. 1495.
Wood v. Allen, 558 U.S. 290, 301 (2010). Therefore,
“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.
(quoting Rice v. Collins, 546 U.S. 333, 341-42
(2006)) (alteration in original). Conversely, “when a
state court's adjudication of a habeas claim result[s] in
a decision that [i]s based on an unreasonable determination
of the facts in light of the evidence presented in the state
court proceeding, this Court is not bound to defer to
unreasonably-found facts or to the legal conclusions that
flow from them.” Adkins v. Warden, Holman
Correctional Facility, 710 F.3d 1241, 1249 (11th
Cir. 2013) (quoting Jones v. Walker, 540 F.3d 1277,
1288 n.5 (11th Cir. 2008) (en banc)).
d.
Evaluating state court factual determinations under 28 U.S.C.
§ 2254(d)(2) and (e)(1)
As set
out previously, 28 U.S.C. § 2254(d)(2) regulates federal
court review of state court findings of fact. That provision
limits the availability of federal habeas relief on any
claims that are grounded in a state court's factual
findings, unless the findings were “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). Moreover, § 28 U.S.C. §
2254(e)(1) provides that factual determinations made by a
state court are “presumed to be correct, ” and
that the habeas petitioner bears “the burden of
rebutting the presumption of correctness by clear and
convincing evidence.” See 28 U.S.C. §
2254(e)(1). But, “no court has fully explored the
interaction of § 2254(d)(2)'s
‘unreasonableness' standard and §
2254(e)(1)'s ‘clear and convincing evidence'
standard.” See Cave v. Sec'y, Dep't of
Corr., 638 F.3d 739, 744-45 (11th Cir. 2011) (quoting
Gore v. Sec'y, Dep't of Corr., 492 F.3d
1273, 1294 n.51 (11th Cir. 2007)). Still, federal habeas
courts “must presume the state court's factual
findings to be correct unless the petitioner rebuts that
presumption by clear and convincing evidence.” Ward
v. Hall, 592 F.3d 1144, 1177 (11th Cir. 2010) (citing
§ 2254(e)(1); Parker v. Head, 244 F.3d 831,
835-36 (11th Cir. 2001)). And, § 2254(e)(1)
“commands that for a writ to issue because the state
court made an ‘unreasonable determination of the
facts,' the petitioner must rebut ‘the presumption
of correctness [of a state court's factual findings] by
clear and convincing evidence.'” Ward, 592
F.3d at 1155 (alteration in original).
D.
The Burden of Proof and Heightened Pleading Requirements for
Habeas Petitions
Federal
habeas “exists only to review errors of constitutional
dimension.” McFarland v. Scott, 512 U.S. 849,
856 (1994). Further, “[w]hen the process of direct
review . . . comes to an end, a presumption of finality and
legality attaches to the conviction and sentence.”
Barefoot v. Estelle, 463 U.S. 880, 887 (1983). Two
consequences flow from those fundamental propositions: (1)
the habeas petitioner bears the burden of overcoming the
presumption of “legality” that attaches to the
state court conviction and sentence, and of establishing a
factual basis demonstrating that federal post-conviction
relief should be granted, [11] and (2) the habeas petitioner
must meet “heightened pleading
requirements.”[12] The mere assertion of a ground for
relief, without sufficient factual detail, does not satisfy
either the petitioner's burden of proof under 28 U.S.C.
§ 2254(e)(1), or the requirements of Rule 2© of the
Rules Governing Section 2254 Cases in the United States
District Courts, which requires a state prisoner to
“specify all the grounds for relief available to the
petitioner, ” and to then “state the facts
supporting each ground.” Rule 2(c)(1) and (2),
Rules Governing Section 2254 Cases in the United States
District Courts. See also 28 U.S.C. § 2242
(stating that an application for writ of habeas corpus
“shall allege the facts concerning the applicant's
commitment or detention”).
In
short, a habeas petitioner must include in his statement of
each claim sufficient supporting facts to justify a decision
for the petitioner if the alleged facts are proven true.
See, e.g., Blackledge v. Allison, 431 U.S. 63, 75
n.7 (1977) (observing that a habeas petition must
“state facts that point to a ‘real possibility of
constitutional error'”) (quoting Advisory Committee
Notes to Rule 4 of the Rules Governing Section 2254 Cases
in the United States District Courts). In addition,
“[c]itation of the controlling constitutional,
statutory, or other bases for relief for each claim also
should be stated.” 1 Randy Hertz & James S.
Liebman, Federal Habeas Corpus Practice and
Procedure § 11.6, at 654 (5th ed. 2005). As another
district court has held:
It is not the duty of federal courts to try to second guess
the meanings of statements and intentions of petitioners.
Rather the duty is upon the individual who asserts a denial
of his constitutional rights to come forth with a statement
of sufficient clarity and sufficient supporting facts to
enable a court to understand his argument and to render a
decision on the matter.
Nail v. Slayton, 353 F.Supp. 1013, 1019 (W.D. Va.
1972).
E.
Ineffective Assistance of Counsel
Claims[13]
The
“benchmark” standard for determining ineffective
assistance is well-established. The question is whether a
trial or appellate attorney provided representational
assistance to a state prisoner that was so professionally
incompetent as to create issues of federal constitutional
proportions. In other words, the court asks “whether
counsel's conduct so undermined the proper functioning of
the adversarial process that the trial cannot be relied upon
as having produced a just result.” Strickland v.
Washington, 466 U.S. 668, 686 (1984). If an objective
answer to that question is “yes, ” then counsel
was constitutionally ineffective. Strickland
requires that the issue be approached in two steps:
First, the defendant must show that counsel's
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the
defense. This requires showing that counsel's errors
were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable. Unless a defendant makes
both showings, it cannot be said that the conviction or death
sentence resulted from a breakdown in the adversary process
that renders the result unreliable.
Id. at 687 (emphasis added). A petitioner must
satisfy both parts of the Strickland standard.
Chandler v. United States, 218 F.3d 1305, 1313 (11th
Cir. 2000) (en banc). And, “[b]ecause both
parts of the test must be satisfied in order to show a
violation of the Sixth Amendment, the court need not address
the performance prong if the defendant cannot meet the
prejudice prong, or vice versa.” Holladay v.
Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (citation
omitted).
1.
The performance prong
“The
burden of persuasion is on the petitioner to prove by a
preponderance of the evidence that counsel's performance
was unreasonable.” Stewart v. Sec'y, Dep't
of Corr., 476 F.3d 1193, 1209 (11th Cir. 2007) (citing
Chandler, 218 F.3d at 1313). To satisfy this prong,
the petitioner must prove that counsel made errors so serious
that counsel was not functioning as the counsel guaranteed by
the Sixth Amendment. Strickland, 466 U.S. at 687.
The standard for gauging attorney performance is
“reasonableness under prevailing professional
norms.” Id. at 688). “The test of
reasonableness is not whether counsel could have done
something more or different, ” but whether
counsel's performance “fell within the broad range
of reasonable assistance at trial.” Stewart,
476 F.3d at 1209 (citing Chandler, 218 F.3d at
1313). Furthermore, courts must “recognize that
‘omissions are inevitable, but, the issue is not what
is possible or ‘what is prudent or appropriate, but
only what is constitutionally compelled.'”
Id. (quoting Burger v. Kemp, 483 U.S. 776,
794 (1987)). And, because the Sixth Amendment does not
guarantee a defendant the very best counsel or the most
skilled attorney, “[t]he test has nothing to do with
what the best lawyers would have done. Nor is the test even
what most good lawyers would have done. We ask only 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).
The
reasonableness of counsel's performance is judged from
the perspective of the attorney at the time of the alleged
error and in light of all the circumstances.[14] “Under
this standard, there are no “absolute rules”
dictating what reasonable performance is or what line of
defense must be asserted.” Michael v. Crosby,
430 F.3d 1310, 1320 (11th Cir. 2005). To the contrary,
“[a]bsolute rules would interfere with counsel's
independence - which is also constitutionally protected - and
would restrict the wide latitude counsel have in making
tactical decisions.” Id. (citations omitted).
Judicial scrutiny of counsel's performance must be
“highly deferential, ” because representation is
an art, and an act or omission that is unprofessional in one
case may be sound or even brilliant in another. See
Strickland, 466 U.S. at 697. Indeed, reviewing courts
“must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance.” Id. at
689.[15] “Based on this strong presumption
of competent assistance, the petitioner's burden of
persuasion is a heavy one: ‘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). “Even if many reasonable lawyers
would not have done as defense counsel did at trial, no
relief can be granted on ineffectiveness grounds unless it is
shown that no reasonable lawyer, in the circumstances,
would have done so.” Rogers, 13 F.3d at
386 (emphasis added).
2.
The prejudice prong
“A
petitioner's burden of establishing that his lawyer's
deficient performance prejudiced his case is also
high.” Van Poyck v. Florida Department of
Corrections, 290 F.3d 1318, 1322 (11th Cir. 2002). The
petitioner “must affirmatively prove prejudice, because
‘[a]ttorney errors come in an infinite variety and are
as likely to be utterly harmless in a particular case as they
are to be prejudicial.'” Gilreath v. Head,
234 F.3d 547, 551 (11th Cir. 2000) (quoting
Strickland, 466 U.S. at 693) (alteration in
original). “It is not enough for the [habeas
petitioner] to show that the errors had some conceivable
effect on the outcome of the proceeding.”
Strickland, 466 U.S. at 693. Instead, to prove
prejudice, the habeas petitioner “must show that there
is a reasonable probability that, but for counsel's
unprofessional errors, the results of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Id. at 694; see also
Williams, 529 U.S. at 391 (same). When that standard
is applied in the context of the death sentence itself,
“ ‘the question is whether there is 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 at 1209 (quoting
Strickland, 466 U.S. at 695). To satisfy high
standard, a petitioner must present competent evidence
proving “that trial counsel's deficient performance
deprived him of ‘a trial whose result is
reliable.'” Brown v. Jones, 255 F.3d 1272,
1278 (11th Cir. 2001) (quoting Strickland, 466 U.S.
at 687). In other words, “[a] finding of prejudice
requires proof of unprofessional errors so egregious that the
trial was rendered unfair and the verdict rendered
suspect.” Johnson, 256 F.3d at 1177 (citations
omitted).
3.
Deference accorded state court findings of historical fact
and decisions on the merits when evaluating ineffective
assistance of counsel claims
State
court findings of historical fact made in the course of
evaluating a claim of ineffective assistance of counsel are
subject to a presumption of correctness under 28 U.S.C.
§ 2254(d)(2) and (e)(1). See, e.g., Thompson v.
Haley, 255 F.3d 1292, 1297 (11th Cir. 2001). To overcome
a state-court finding of fact, the petitioner bears the
burden of proving contrary facts by “clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1). And,
a federal habeas court may grant relief on a claim of
ineffective assistance of counsel only if the state-court
determination involved an “unreasonable
application” of the Strickland standard to the
facts of the case. Strickland itself, of course,
also requires an assessment of whether counsel's conduct
was professionally unreasonable. Those two assessments cannot
be conflated into one. See Harrington, 562 U.S. at
101-02. Thus, habeas relief on a claim of ineffective
assistance of counsel can be granted with respect to a claim
...