Perkins v. Dunn

          MEMORANDUM OPINION

          SHARON LOVELACE BLACKBURN, UNITED STATES DISTRICT JUDGE.

         This case is presently before the court on Roy E. Perkins’s Petition for a Writ of Habeas Corpus by a Person in State Custody under a Death Sentence, (doc. 1), ^[1] seeking relief from his state-court conviction for capital murder and death sentence. Perkins was convicted of capital murder and sentenced to death for the murder of Cathy Gilliam. He has filed this petition seeking habeas relief pursuant to § 2254. For the reasons set forth below, the court finds that Perkins’s Petition for a Writ of Habeas Corpus is due to be denied.

         TABLE OF CONTENTS

         I. THE OFFENSE CONDUCT ........................................ 3

         II. THE SENTENCING ORDER ...................................... 9

         III. PROCEDURAL HISTORY ...................................... 14

         IV. STANDARD OF REVIEW ....................................... 17

         V. EVIDENTIARY HEARING ...................................... 19

         VI. DISCUSSION OF PERKINS’S CLAIMS ........................... 20

         A. THE STATE VIOLATED THE FOURTEENTH AMENDMENT DUE PROCESS CLAUSE BY FAILING TO DISCLOSE MATERIAL, EXCULPATORY EVIDENCE AND OFFERING A FALSE STIPULATION ......................................... 20

         1. Due Process Violation Under Brady v. Maryland ............ 20

         2. Due Process Violation under Napue v. Illinois and Giglio v. United States ............................................ 36

         B. THE STATE TRIAL COURT VIOLATED PERKINS’S RIGHT TO COUNSEL BY REPLACING HIS COUNSEL MIDWAY THROUGH THEIR PRETRIAL PREPARATIONS ....................... 43

         C. FAILURE TO GRANT A CHANGE OF VENUE ........................................................................................................ 52

         D. ADMISSION OF COLLATERAL-ACT EVIDENCE DENIED PERKINS A FAIR TRIAL AND RELIABLE SENTENCE ............... 63

         1. Overlooked Claims or Presumed Ruling on the Merits ........ 69

         2. Admission of Evidence of Prior Acts and Perkins’s Right to Due Process ........................................... 71

         a. Evidence of the Rapes of D.W. and B.P ............... 79

         b. Incident at Darlene Hall’s House .................... 84

         c. The Gray Truck and the .357 Magnum Handgun ....... 88

         3. Failure to Give Limiting Instruction ....................... 92

         E. SUFFICIENCY OF THE EVIDENCE .......................... 96

         F. CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL ...... 102

         1. Standard of Review ................................... 102

         a. The Performance Prong .......................... 104

         b. The Prejudice Prong ............................. 106

         c. Deference Accorded State Court’s Decisions ......... 108

         2. Failure to Strike Juror V.H. . ........................... 110

         3. Failure to Request a Limiting Instruction .................. 132

         4. Failure to Investigate and Present Available Mitigating Evidence ................................................ 151

         5. Failure to Challenge Perkins’s Rape Conviction ............ 177

         G. THE JURY’S CONSIDERATION OF EXTRINSIC EVIDENCE – THE BIBLE IN THE JURY ROOM ............................ 202

         H. PERKINS IS INTELLECTUALLY DISABLED; THEREFORE, HIS DEATH SENTENCE VIOLATES THE EIGHTH AMENDMENT ......................................................................................................................... 207

         1. The IQ Test Score – Intellectual Functioning .............. 215

         2. Adaptive Functioning ................................. 218

         3. Failure to Grant Evidentiary Hearing ..................... 220

         I. THE BATSON CLAIM ..................................... 222

         VII. CONCLUSION .............................................. 232

         CERTIFICATE OF APPEALABILITY ............................... 232

         I. THE OFFENSE CONDUCT

         The following summary of the evidence relevant to the offense is taken from the opinion of Alabama Court of Criminal Appeals on direct appeal.

On August 9, 1990, at approximately 4:00 p.m., 33-year-old Cathy Gilliam was abducted at gunpoint from her home in the Tuscaloosa County community of New Lexington. Candace Gilliam, Mrs. Gilliam’s daughter, testified that she was in her bedroom at approximately 4:00 p.m. on August 9, when she heard her mother scream. After this testimony, Candace, who was 14 years old at the time of the trial, was excused from the courtroom; in lieu of further live testimony from Candace, it was stipulated that her testimony would have been as follows had she continued to testify: When she heard her mother scream a second time, Candace went to the kitchen. There she saw a man holding her mother and pointing a black pistol at her mother’s head. She heard her mother yell for help and say “something about a rapist.” [(Doc. 10, Vol. 11 at 1755.)] Candace watched as the man led her mother outside to a vehicle parked behind her mother’s car. She could not see the vehicle well, but did notice that it was bigger than a car and that it was gray in color. At that point, Candace telephoned her grandmother. Candace was unable to give a detailed description of the man who had abducted her mother, but she did tell police that the man had brown, straight hair and a thin beard, and that he was not much taller than her mother.

Maudeen Hood, a resident of New Lexington who lived two to three miles from the Gilliam residence, testified that at approximately 5:00 p.m. on August 9, Cathy Gilliam knocked on her back door. According to Hood, Mrs. Gilliam stated that she had been shot and that she was going to die, and she asked Hood to call her father-in-law and to take her to the hospital. Hood stated that she helped Mrs. Gilliam into her kitchen, where Mrs. Gilliam lay on the floor; Hood then telephoned Mrs. Gilliam’s father-in-law. When no one answered, Hood telephoned for help. Mrs. Gilliam told Hood that her assailant was about her husband’s size, had long brown hair, a beard, and a mustache, and was driving a gray pickup truck. Mrs. Gilliam also told Hood that her assailant had brought her to Hood’s house and that he had said that he did not mean to shoot her.

At approximately 5:15 p.m. on August 9, Norman Eldon Willingham, an Alabama state trooper, and Harry Montgomery, Chief Deputy Sheriff of the Tuscaloosa County Sheriff’s Department, arrived at the Hood residence. Willingham testified that upon arriving, he saw Mrs. Gilliam lying on the kitchen floor; she had a gunshot wound to her chest. He stated that although Mrs. Gilliam had been shot in the chest, he immediately noticed that there was no hole in the front of her shirt. He stated that Mrs. Gilliam appeared pale, that she was having trouble breathing, and that she was complaining of pain and asking for help. When Willingham asked Mrs. Gilliam to describe her assailant, Mrs. Gilliam told him that he was a white male, approximately 30 years old, with medium-length hair and facial hair, and he was driving a gray full-size pickup truck. In addition, Mrs. Gilliam told Willingham that she had been sitting down when she was shot, and that it had been at least one hour since the shooting. Montgomery testified that he asked Mrs. Gilliam if she knew her assailant, and that she responded that she did not.

Gary Wayne Hunnicut, fire chief with the Samantha Volunteer Fire Department, testified that he was dispatched to the Hood residence on August 9, 1990. He stated that when he arrived, Donnie Hallman, a fellow volunteer, was already on the scene treating Mrs. Gilliam. In addition, both Willingham and Montgomery were present. Hunnicut testified that while he and Hallman were treating Mrs. Gilliam, he heard either Willingham or Montgomery ask Mrs. Gilliam if Perkins was her assailant. According to Hunnicut, Mrs. Gilliam “grunted” and nodded her head in the affirmative. [(Id., Vol. 12 at 1987.)] In addition, Hunnicut said he heard Mrs. Gilliam grunt and saw her nod her head in the affirmative when either Willingham or Montgomery asked her if she had been shot with a pistol.

Scott Sassaman, a paramedic with the Suburban Ambulance Company, testified that he arrived at the Hood residence at approximately 5:46 p.m. on August 9. Hallman was already working on Mrs. Gilliam. Sassaman stated that he took over Mrs. Gilliam’s treatment and put Mrs. Gilliam in “mass trousers” - air-filled pants that move blood from the lower body to the upper extremities. [(Id. at 2023.)] Sassaman stated that he saw no gunpowder residue on Mrs. Gilliam. According to Sassaman, Mrs. Gilliam was placed in the ambulance at approximately 6:00 p.m. While in the ambulance, Sassaman said, Mrs. Gilliam expressed concern about her family and stated that she was going to die. Mrs. Gilliam died in the ambulance on the way to the hospital.

On August 10, 1990, Kenneth Warner, the State Medical Examiner for Tuscaloosa County, performed an autopsy on Mrs. Gilliam. Warner testified that Mrs. Gilliam died from a gunshot wound to her chest that destroyed her liver. He stated that, in addition to the gunshot wound, there was a stab wound just above Mrs. Gilliam’s right collarbone. The hyoid bone in Mrs. Gilliam’s neck was broken, Warner said, and there was hemorrhaging in her neck muscles. Warner stated that these injuries were consistent with a struggle having taken place. Warner also stated that he found no evidence that Mrs. Gilliam had been raped and that there was no gunpowder residue around the gunshot wound. He testified that if Mrs. Gilliam was wearing a shirt at the time of the shooting, the absence of gunpowder residue around the wound would be meaningless, but that if Mrs. Gilliam was not wearing a shirt when she was shot, the absence of gunpowder residue would indicate that the fatal shot was fired from at least 18 inches away.

Vernon Hudson, Chief Deputy of the Fayette County Sheriff’s Department, testified that he was driving south on Highway 63 on August 9, 1990, at approximately 5:30 p.m., when he saw Perkins, whom he knew personally, driving north in a gray pickup truck. Hudson stated that he knew Perkins was wanted in connection with the shooting of a woman in Tuscaloosa County, so he turned around and followed Perkins. According to Hudson, he lost sight of the pickup truck briefly when he turned around, but he saw dust on a dirt road off Highway 63 and he turned down the road. Hudson said he found a gray, 1979 Chevrolet pickup truck abandoned just off the dirt road, and that the keys were in the ignition. Hudson stated that he notified a dispatcher that he had found the truck Perkins was driving and that he stayed with the truck until the homicide unit arrived, at which time, he said, he turned the truck over to Investigator J.R. Simpson. Hudson testified that he found the truck approximately one-half mile from the homes of Perkins’s mother and grandmother.

Investigator Simpson testified that he responded to a call regarding an abandoned truck believed to have been driven by Perkins. He stated that when he arrived in Fayette County just off Highway 63, he took photographs of the abandoned truck. He stated that the truck had a gunshot hole in the front windshield and a gunshot hole in the roof of the cab. On cross-examination, he stated that he believed both holes were caused by shots fired from within the truck, most likely from the driver’s side. The truck was towed to the homicide unit’s impound lot and was “processed” for evidence by Simpson and Dr. John McDuffie, a trace-evidence examiner with the Alabama Department of Forensic Sciences.

At trial, Perkins stipulated to the following facts, which the trial judge read to the jury:

“The defendant caused the death of Cathy Gilliam with a .357 Magnum pistol. That’s number one. Number two, the defendant, Mr. Roy Perkins, was in the 1979 Chevrolet gray pickup truck shown in State’s Exhibit number 23. Number three, Cathy Gilliam’s blood was found in the 1979 gray Chevrolet pickup truck shown in State’s Exhibit number 23.”

[(Id., Vol. 13 at 2087.)]

The State presented evidence that Simpson and McDuffie found a wallet containing Perkins’s driver’s license and a fragment of a projectile in the gray truck. Fibers from the shorts Mrs. Gilliam was wearing at the time of her abduction were also found in the truck. Perkins’s fingerprints were found on the outside of the driver’s door of the truck. Further, both the driver and front passenger seats contained reddish stains; the stained portions of the seats were cut out and sent to Dr. Phyllis T. Rollan, a forensic serologist with the Alabama Department of Forensic Sciences. Dr. Rollan testified that the stain found on the back of the front passenger seat was consistent with Mrs. Gilliam’s blood.

After the abandoned truck was discovered, the police began searching for Perkins in Fayette County. Bobby Mason, an enforcement agent with the Alabama Alcoholic Beverage Control Board, testified that he participated in the search for Perkins in Fayette County. He stated that on August 11, 1990, he found a campsite in the woods near the homes of Perkins’s mother and grandmother. At the campsite, Mason found quilts, cigarettes, various food items, wire-cutters, 10 feet of rope, and a .357 Magnum handgun.

Baxter Pate, a police officer with the City of Northport, also helped in the search for Perkins. Pate testified that at approximately 3:50 p.m. on August 12, 1990, he found Perkins lying on the ground in the woods near the houses of his mother and grandmother. Pate stated that Perkins was crying and whimpering and that he said, “Please, please, don’t shoot me.” [(Id. at 2106.)] After Pate told Perkins not to move, Perkins again stated, “Please, don’t shoot me, ” and then said, “I didn’t mean to do it . . . . I didn’t mean to hurt her.” [(Id. at 2107.)] Pate stated that he called for backup, and that several officers arrived and handcuffed Perkins. At the time of his arrest, Perkins had a gunshot wound to his right knee that he suffered during a struggle with Mrs. Gilliam.

Darlene Hall, a resident of New Lexington who lived approximately one to two miles from the Gilliam residence, also testified at trial. Hall stated that at approximately 3:50 p.m. on August 9, 1990, Perkins came to her home and asked to use her telephone to call a tow truck. According to Hall, she recognized Perkins from a picture in a newspaper article she had been reading, and she immediately retrieved a gun from her bedroom closet. Perkins left when he saw the gun. At trial, Hall positively identified Perkins as the man who had come to her home on August 9.

In addition to Hall’s testimony, the State also presented evidence of two rapes allegedly committed by Perkins in the two weeks preceding the abduction of Mrs. Gilliam – one committed on August 1, 1990, and one committed on August 6, 1990. The State presented testimony from the alleged rape victims, B.P. and D.W.; from the doctors who treated them following the alleged rapes; from the nurses who administered the rape kits; from Dr. Rollan, who performed DNA tests on the rape kits from both victims and compared them to Perkins’s DNA; and from the police officers who investigated the alleged rapes.

Perkins v. State, 808 So.2d 1041, 1052-56 (Ala.Crim.App.1999), aff’d 808 So.2d 1143 (Ala. 2001), cert. granted and judgment vacated in part sub nom. Perkins v. Alabama, 536 U.S. 953 (2002).

         II. THE SENTENCING ORDER

         The pertinent portions of the trial court’s sentencing order are set forth below:

STATUTORY AGGRAVATING CIRCUMSTANCES

1. Alabama Code § 13A-5-49(1) The capital offense was committed by a person under sentence of imprisonment. This was proved beyond a reasonable doubt. The Defendant was on parole for a ten (10) year sentence in No. CC 83-9 in Fayette County, Alabama, when he committed the offense, and thus was under a sentence of imprisonment. Parole equates to being under sentence of imprisonment.

2. Alabama Code § 13A-5-49(2) The defendant was previously convicted of another capital offense or a felony involving the use or threat of violence to the person. This was proved beyond a reasonable doubt. The Defendant was convicted of Rape, First Degree, in No. 90-96 in Fayette County, Alabama, on his plea, and Defendant was sentenced to ninety-nine (99) years in prison. Defendant was represented by Hon. Steven M. Nolen. Court records and testimony of [B.P.] show this circumstance. The conviction must exist at the time of sentencing, not necessarily at the time of the act.

3. Alabama Code § 13A-5-49(3) The defendant knowingly created a great risk of death to many persons. This circumstance does not exist.

4. Alabama Code § 13A-5-49(4) The capital offense was 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. This was proved beyond a reasonable doubt. This is an aggravating component of the capital offense. The Defendant committed the capital offense while he was engaged in . . . the commission of a kidnapping. The jury verdict finding Defendant guilty of Murder Kidnapping in the First Degree (capital murder) established this circumstance beyond a reasonable doubt.

5. Alabama Code § 13A-5-49(5) The capital offense was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody. This circumstance does not exist.

6. Alabama Code § 13A-5-49(6) The capital offense was committed for pecuniary gain. This circumstance does not exist.

7. Alabama Code § 13A-5-49(7) The capital offense was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws. This circumstance does not exist.

8. Alabama Code § 13A-5-49(8) The capital offense was especially heinous, atrocious or cruel compared to other capital offenses. This circumstance does not exist.

The Court did not rely on any statutory aggravating circumstance except for the three (3) circumstances above stated to have been proved. The facts did not establish the existence of any other statutory circumstance. The Court has not considered any fact or thing as a non-statutory aggravating circumstance.

         STATUTORY MITIGATING CIRCUMSTANCES

         The Court has reviewed all statutory and non-statutory mitigating circumstances, whether or not suggested by Defendant.

1. Alabama Code § 13A-5-51(1) The Defendant has no significant history of prior criminal activity. This circumstance does not exist. Defendant does have a significant history of prior criminal activity as is shown by the presentence report, excluding the juvenile charges. Defendant’s history shows crimes of violence, including a rape for which he was on parole when the murder of Cathy Gilliam occurred. There was also testimony of two rapes by Defendant within several days previous to the date of said murder.

2. Alabama Code § 13A-5-51(2) The capital offense was committed while the defendant was under the influence of extreme mental or emotional disturbance. This circumstance does not exist. Defendant had some degree of mental or emotional disturbance, but the Court does not find it to be to an extreme degree. Dr. Goff stated that Defendant could tell the difference between right and wrong at the time of the offense in this case. The MMPI-2 results indicated Defendant might have been trying to overstate or exaggerate any disturbance.

Defendant’s use of alcohol and drugs could have contributed to his disturbance. If so, it was voluntary an his part. Defendant was also able to elude large search parties for a few days during a manhunt for him. Two isolated incidents of seizures seem to have been caused by alcohol or other substance abuse.

3. Alabama Code § 13A-5-51(3) The victim was a participant in the defendant’s conduct or consented to it. This circumstance does not exist. There was no participation or consent by the victim.

4. Alabama Code § 13A-5-51(4) The defendant was an accomplice in the capital offense committed by another person and his participation was relatively minor. This circumstance does not exist. There was no evidence of an accomplice, and the Defendant’s participation was major. Defendant admitted causing the death of Cathy Gilliam.

5. Alabama Code § 13A-5-51(5) The defendant acted under extreme duress or under the substantial domination of another person. This circumstance does not exist. No. evidence showed Defendant was under duress or that another person had anything to do with Defendant’s actions in this case.

6. Alabama Code 13A-5-51(6) 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 finds that this circumstance exists. Dr. Goff said that Defendant s intelligence was in the lowest 6-7% or below 92% of the population. Defendant had a long history of alcohol abuse with possible organic brain dysfunction. Evidence also showed that Defendant abused drugs.

Dr. Goff also diagnosed Defendant as borderline personality disorder with paranoid features. This most likely affected his judgment. No. psychosis was found through the evidence.

7. Alabama Code § 13A-5-51 (7) The age of the defendant at the time of the crime. This circumstance does not exist. Defendant was thirty (30) years of age at the time this offense occurred. Defendant’s creative suggestion of his being morally immature is rejected. Defendant has had extensive criminal justice experience. Age is not a mitigating circumstance.

Therefore, only one statutory mitigating circumstance exists. As to non-statutory mitigating circumstances considered, these include any aspect of the Defendant’s character or record and any of the mitigating circumstances of the offense and all other relevant mitigating circumstances that the Defendant offered as a basis for a sentence of life imprisonment without parole instead of death.

The Court considers the following non-statutory mitigating circumstances to exist.

(1) Defendant took Victim near Ms. Hood’s house. However, Victim said she’d been shot about an hour earlier. This was a belated act, at best, and Defendant may have been merely getting rid of the Victim.

(2) Defendant was drinking alcohol, taking pills and abusing drugs during the general period of time of the offense. However, this was voluntary.

(3) Defendant suffers from borderline personality disorder, is an alcoholic, is of borderline intelligence, and probably has organic brain dysfunction.

(4) Defendant was under mental or emotional disturbance, although not to an extreme degree.

(5) Defendant lacked socialization and had a horrible childhood, involving the death of his father, the drowning of his brother in his presence, the sexual abuse of his sister by his stepfather in his presence, physical abuse of Defendant by his stepfather, being run away from home at a very early age and being sexually abused.

(6) Defendant’s intelligence is below 92% of the population, and he has a full scale I.Q. of 76.

(7) Defendant and his family were very poor, and Defendant had to “raise himself”. His mother and stepfather and other family members were alcoholics.

The Court considered all of the evidence as to non-statutory mitigating circumstances, including the testimony of Mr. Ed Owens, Dr. John Goff and Ms. Kathleen Snow, the presentence investigation, the videotape offered by Defendant and all other evidence submitted on circumstances of the Defendant’s life, childhood, poor housing, and family background. The Court carefully searched for and considered all evidence in this case for circumstances of mitigation because this is a capital murder case.

WEIGHING CIRCUMSTANCES

The Court has found three (3) existing statutory aggravating circumstances beyond a reasonable doubt. The Court has found only one (1) statutory mitigating circumstance to exist based on the evidence, and has considered several existing non-statutory mitigating circumstances. The Court has weighed the three (3) existing statutory aggravating circumstances and has weighed the one (1) existing statutory mitigating circumstance and all of the existing non-statutory mitigating circumstances. After having weighed the foregoing circumstances, the Court has found that the three (3) existing statutory aggravating circumstances greatly outweigh all existing mitigating circumstances, both statutory and non-statutory.

In deciding the sentence, the Court has ordered, received and reviewed the presentence investigation report of Mr. Carl Archibald, except that the last paragraph of the report was not considered. Therefore, Mr. Archibald’s concurrence with or recommendation of the death sentence was not considered. The report did not contain any victim impact statement.

The Court has considered the recommendation of the jury in its advisory verdict, as required by law, but made this consideration in view of the fact that the advisory jury verdict is not binding on the Court. Although the advisory verdict does not require the Court to give the death sentence, the Court has been unable to justify a sentence of life imprisonment without parole after having weighed all of the circumstances previously stated. Furthermore, after full and thorough consideration, the Court is compelled to accept the recommendation of the jury. The Court fixes the Defendant’s punishment as death.

(Doc. 10, Vol. 24, Tab 45 at 348-54.)

         III. PROCEDURAL HISTORY

         In April 1994, a Tuscaloosa County jury found Perkins guilty of the capital murder of Mrs. Gilliam and recommended, by a vote of ten to two, that he should be sentenced to death. (Id., Vol. 16, Tab 25 at 2751; id., Vol. 18, Tab 36 at 3019.) On June 3, 1994, the trial court followed the jury’s recommendation and sentenced Perkins to death. (Id., Vol. 24, Tab 45 at 354.)

         Perkins appealed his conviction and sentence to the Alabama Court of Criminal Appeals, which affirmed in 1999. See Perkins, 808 So.2d 1041. The Alabama Supreme Court affirmed the Court of Criminal Appeals on March 30, 2001. Ex parte Perkins, 808 So.2d 1143 (Ala. 2001).

         Perkins petitioned the United States Supreme Court for writ of certiorari. The Court granted his petition. The Supreme Court vacated the judgment and remanded the case “for further consideration in light of Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).”^[2] Perkins v. Alabama, 536 U.S. 953 (2002).

         On remand, after declining to allow additional evidence to be presented, the Alabama Supreme Court held:

Applying the plain-error standard of review, we hold that because, applying the most common definitions of mental retardation, we find no indication in the record that Perkins is mentally retarded, no reversible error occurred and the imposition of the death sentence in this case is not unconstitutional. Therefore, we affirm the judgment of the trial court sentencing Perkins to death.

Ex parte Perkins, 851 So.2d 453, 457 (Ala. 2002). The United States Supreme Court denied Perkins’s petition for writ of certiorari October 6, 2003. Perkins v. Alabama, 540 U.S. 830 (2003).

         Perkins filed a petition for post-conviction relief, commonly referred to as a Rule 32 Petition after Ala. R. Crim. P. 32, in the Circuit Court of Tuscaloosa County on January 29, 2004. The Circuit Court held an evidentiary hearing on some of the claims in Perkins’s Rule 32 Petition, as amended. On July 30, 2009, the Circuit Court denied Perkins’s Rule 32 petition as amended. (See doc. 10, Vol. 56, Tab 135 at 4488-4534.) Later, on September 3, 2009, the Circuit Court amended its order to deny two claims it had overlooked in its July 2009 order. (See id., Tab 137 at 4551-52.)

         Perkins appealed the denial of his Rule 32 Petition and the Court of Criminal Appeals affirmed. Perkins v. State, 144 So.3d 457, 499 (Ala.Crim.App.2012). The Alabama Supreme Court granted, but later quashed his writ of certiorari. The Supreme Court denied his petition for writ of certiorari on October 6, 2014. Perkins v. Alabama, 135 S.Ct. 56 (2014).

         On September 23, 2014, Perkins filed the instant Petition for a Writ of Habeas Corpus by a Person in State Custody under a Death Sentence, pursuant to 28 U.S.C. § 2254.^[3] (Doc. 1.)

         IV. STANDARD OF REVIEW

         As to any claim “adjudicated on the merits in State court proceedings, ” this court may not grant the Petition

. . . unless the adjudication of the claim –

“(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. [42 U.S.C. § 2254(d).]

In applying this “highly deferential standard for evaluating state-court rulings, . . . state-court decisions [must] be given the benefit of the doubt.” [Cullen v.] Pinholster, 563 U.S. [170, 181], 131 S.Ct. [1388], at 1398 [(2011)](internal quotation marks omitted). They must be reviewed solely on “the record that was before the state court that adjudicated the claim on the merits.” Id., at [181] . . . . And the prisoner must rebut any state court factual findings he seeks to challenge by clear and convincing evidence under § 2254(e)(1). Burt v. Titlow, 571 U.S. [12], [18], 134 S.Ct. 10, 15, 187 L.Ed.2d 348 (2013).

Brumfield v. Cain, 135 S.Ct. 2269, 2288-89 (2015). “Deciding whether a state court’s decision involved an unreasonable application of federal law[, § 2254(d)(1), ] or was based on an unreasonable determination of fact[, § 2254(d)(2), ] requires the federal habeas court to train its attention on the particular reasons – both legal and factual – why state courts rejected a state prisoner’s federal claims, and to give appropriate deference to that decision.” Wilson v. Sellers, 138 S.Ct. 1188, 1191-92 (2018)(internal quotations and citations omitted). Nevertheless, “‘[e]ven in the context of federal habeas, deference does not imply abandonment or abdication of judicial review, ’ and ‘does not by definition preclude relief.’” Brumfield, 135 S.Ct. at 2277 (quoting Miller–El v. Cockrell, 537 U.S. 322, 340 (2003)).

         “When the evidence leads very clearly to the conclusion that a federal claim was inadvertently overlooked in state court, § 2254(d) entitles the prisoner to an unencumbered opportunity to make his case before a federal judge.” Johnson v. Williams, 568 U.S. 289, 303 (2013). However, “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary. That presumption stands unless rebutted by evidence from the state court’s decision and the record that leads very clearly to the conclusion that the federal claim was inadvertently overlooked in state court.” Pittman v. Sec’y, Fla. Dep’t of Corr., 871 F.3d 1231, 1245 (11th Cir. 2017)(internal citations and quotations omitted), cert. denied 139 S.Ct. 102 (2018).

         The “backward-looking language” of § 2254(d) “requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time i.e., the record before the state court.” Cullen v. Pinholster, 563 U.S. 170');">563 U.S. 170, 182 (2011). Also, the “[s]tate court decisions are measured against [the Supreme] Court’s precedents as of ‘the time the state court renders its decision.’” Id. (quoting Lockyer v. Andrade, 588 U.S. 63, 71-72 (2003)).

         V. EVIDENTIARY HEARING

         Perkins has asked the court for an evidentiary hearing on two of his claims – his claim that he is ineligible for the death penalty because he is intellectually disabled and his claim that the prosecution used its peremptory strike in a racially discriminatory manner. “If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) [and (d)(2)] on the record that was before that state court.” Cullen, 563 U.S. at 185; see Landers v. Warden, 776 F.3d 1288, 1295 (11th Cir. 2015)(applying Cullen to claim brought pursuant to § 2254(d)(2)). “Therefore, before a habeas petitioner may be entitled to a federal evidentiary hearing on a claim that has been adjudicated [on the merits] by the state court, he must demonstrate a clearly established federal-law error[, § 2254(d)(1), ] or an unreasonable determination of fact[, § 2254(d)(2), ] on the part of the state court, based solely on the state court record.” Landers, 776 F.3d at 1295 (emphasis added). “Once a petitioner has demonstrated such an error or unreasonable determination, the decision to grant an evidentiary hearing rests in the discretion of the district court.” Id. (internal citations and quotations omitted).

         For the reasons set forth below, the court finds that Perkins has not demonstrated his right to relief under § 2254(d), based on the state court record. Therefore, his request for an evidentiary hearing is denied.

         VI. DISCUSSION OF PERKINS’S CLAIMS

         A. THE STATE VIOLATED THE FOURTEENTH AMENDMENT DUE PROCESS CLAUSE BY FAILING TO DISCLOSE MATERIAL, EXCULPATORY EVIDENCE AND OFFERING A FALSE STIPULATION

         Perkins alleges that the State violated Brady v. Maryland^[4] by failing to disclose a video-taped interview of Candace Gilliam shortly after her mother’s murder and that it violated Giglio v. United States^[5] by insisting that the stipulation as to the content of Candace’s testimony include a false statement that she had heard her mother cry, “Rapist, ” as she was being abducted. For the reasons set forth herein, the court finds that Perkins is not entitled to relief on either claim.

         1. Due Process Violation Under Brady v. Maryland

         In his Petition, Perkins states:

29. The State violated Perkins’s right to due process of law by suppressing a video that was favorable to the defense and material. The video would have critically weakened the State’s most compelling evidence of intent to rape, strengthened the defense’s theory of the crime, changed the character of the State’s remaining evidence, and dampened the State’s gripping emotional narrative. The state court’s holding that suppression of the video did not undermine confidence in the verdict is contrary to and involves an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d)(1). It also is based on an unreasonable determination of the facts in light of the evidence in the record. See 28 U.S.C. 2254(d)(2).

. . .

30. The State prosecuted Perkins for capital murder on the theory that he intentionally killed Cathy Gilliam in the course of a first-degree kidnapping. [(Doc. 10, Vol. 1 at 2-3; see Ala. Code § 13A-5-40 (a)(1) (1975)(identifying the capital offense).)] To establish a first-degree kidnapping, the State argued that Perkins abducted Gilliam with the intent to sexually abuse her. [(Id., Vol. 11, Tab 16 at 1709; see Ala. Code § 13A-6-43(a)(4) (1975)(defining first-degree kidnapping).)] Under the relevant criminal statute, a person could be guilty of first-degree kidnapping if he abducted someone with the intent to sexually abuse the victim or with the intent to physically injure the victim. Ala. Code § 13A-6-43 (a)(4) (1975). However, the prosecutor stated in explaining his theory of the case before trial, “I don’t think there’s any reasonable interpretation of this case other than [Perkins] was going to take [Cathy Gilliam] and rape her, not that he was going to physically injur[e] her . . . .” [(Doc. 10, Vol. 11, Tab 16 at 1709.)]

31. It was undisputed that Cathy Gilliam was not raped. [(Id., Vol. 12 at 2029; id., Vol. 13 at 2153-54.)] It also was undisputed that Perkins brought Gilliam to a nearby home after the shooting, [(id., Vol. 12 at 1943)], and that Gilliam survived for at least one hour and spoke about the crime to people around her, [(see, e.g., id. at 1920-21, 1941-45)]. When she recounted the incident to first responders and others, she provided a detailed description of the man who abducted her, [(id. at 1920, 1942)], described the man’s vehicle, [(id. at 1920, 1943)], and described how she was positioned when she was shot, [(id. at 1920, 1930, 2028-29)], among other things. She said that the man who shot her brought her to the home, [(id. at 1943)], and that he said he did not mean to shoot her, [(id. at 1944-45)]. She said that the man had not raped her. [(Id. at 2029.)] She did not mention an attempt to sexually assault her.

32. The issue of whether Perkins had the intent to rape was central to the defense. Perkins conceded that he was responsible for shooting Gilliam. [(Id., Vol. 13 at 2087; id., Vol. 16 at 2659-60.)] However, he maintained throughout the trial that the shooting was accidental and that he did not intend to sexually assault her. [(Id., Vol. 16 at 2642-45, 2654-58.)] In his opening statement to the jury, Perkins’s counsel stated that Perkins was “not guilty of capital murder” because “the evidence in this case will not prove that Roy Perkins intended to hurt Mrs. Gilliam.” [(Id., Vol. 11, Tab 18 at 1735-37.)] Counsel emphasized this theme repeatedly; it was the backbone of the defense. [(See, e.g., id. at 1737 (“He did not intend to hurt her, physically. And he did not intend to rape her or sexually abuse her.”), 1740 (“[T]he evidence in this case will show that Mr. Perkins never intended to kill Mrs. Gilliam [and] that he never intended to physically harm her or sexually abuse her.”); id., Vol. 15, Tab 22 at 2632-38 (arguing State failed to prove intent to rape); id., Vol. 16 at 2641-45 (arguing State’s evidence consistent with defense theory of no intent to rape), 2650-51 (explaining difference between first and second degree kidnapping and arguing that Perkins did not intend to sexually abuse victim), 2652-56 (arguing State’s circumstantial evidence insufficient to convict Perkins of capital murder because it failed to establish intent to sexually abuse), 2657 (arguing that if attempted rape had occurred, victim would have mentioned it when she gave details of crime to police), 2657-58 (arguing Perkins went to victim’s home because he was running from police), 2658 (“So there was never any intent to physically injure or sexually abuse.”).

33. At trial, the State presented evidence of what Cathy Gilliam said at the moment of the abduction from its first witness, Gilliam’s fourteen-year-old daughter, Candace Gilliam. [(Id., Vol. 11, Tab 19 at 1742.)] Candace Gilliam testified that she was present when her mother was abducted. [(Id. at 1742-46.)] She was the only eyewitness to that event. After she became emotional on the stand, . . . there was a brief recess and defense counsel offered to “stipulate to what she said she saw, ” [(id., Vol. 11, Tab 19 at 1748)]. The State represented that Candace Gilliam would testify that she heard Cathy Gilliam “yell for her help and something about a rapist.” [(Id. at 1755.)] The defense agreed to the stipulation based on the State’s account of Candace Gilliam’s statement.^[6] The defense had no reason to doubt the State’s representations; the district attorney followed an open file policy, [(id., Vol. 1 at 86; id., Vol. 4 at 245)], and his “open file” did not contain any statement of Candace Gilliam that contradicted the State’s version of what her testimony would be, [(see id., Vol. 63 at 195-96; id., Vol. 64 at 420)].

34. After the stipulation was entered, the State used the “cry of rapist, ” [(id., Vol. 11, Tab 17 at 1734)], to argue that Perkins intended to sexually assault Cathy Gilliam, [(see, e.g., id., Vol. 15, Tab 21 at 2616, 2622; id, Vol. 16, Tab 23 at 2669-70; see also id., Vol. 11, Tab 17 at 1716)]. Defense counsel attempted to curb the prosecution’s use of the stipulated testimony in closing argument:

MR. FREEMAN [District Attorney]: [. . .] [Candace Gilliam] hears her mother saying the word, rapist . . . . [D]id he say something to [Cathy Gilliam]? She used the word, rapist.^[7]

MR. STEVERSON [Defense Attorney]: Judge, at this time, we’re going to object to that continuous – I think the testimony that they brought out was that they heard somebody say it. But I don’t think there’s any testimony that [Mr. Freeman knows] who said it. I think that’s a misstatement – to say that Mrs. Gilliam – MR. FREEMAN: No, sir. Miss Candace Gilliam testified that she heard her mother say the word, rapist.

MR. LEMLEY [Asst. District Attorney]: Your Honor, the stipulation that I have right here in front of me, Candace heard her mother yell for help and something about rapist.

MR. STEVERSON: Right. That’s exactly right.

MR. LEMLEY: She heard her mother yell for help and something about rapist.

THE COURT: Okay. Well [the prosecutor] can draw his inferences. Go ahead now.

[(Id., Vol. 16, Tab 23 at 2669-70.)]

35. The State’s most direct evidence that Perkins intended to rape Gilliam was the stipulation that she “used the word, rapist.” This statement was unconditionally admitted. The State’s remaining evidence of intent consisted of collateral-act evidence. The main collateral-act evidence alleged that Perkins had raped two women in the weeks before this incident. [(See id., Vol. 12 at 1862-912.)] Other collateral-act evidence involved the testimony of Darlene Hall, who said that Perkins drove up to her house and acted suspiciously shortly before the abduction of Cathy Gilliam. Hall’s testimony did not support the State’s argument that Perkins intended to rape Cathy Gilliam. Hall herself acknowledged that the man she identified as Perkins did not threaten or attempt to harm her when they encountered each other on Hall’s front porch. [(Id., Vol. 11, Tab 19 at 1778-79.)] In fact, she went inside to make a telephone call for him. [(Id. at 1775-76.)]

36. Without evidence that Cathy Gilliam cried “rapist, ” the State’s case for capital murder was weak. There was little about the abduction of Gilliam to indicate a rape motive. Without the cry of “rapist, ” the State would have had no substantial evidence to connect the collateral acts to the Gilliam abduction.

37. On its own, the collateral-act evidence was consistent with the defense’s theory. Defense counsel pointed out that, at the time of Cathy Gilliam’s abduction, warrants had been issued, Perkins’s photograph was in the local papers, and Perkins was “on the run, he kn[ew] the police [were] coming after him.” [(Id., Vol. 16 at 2654.)] There was no evidence that Perkins was wanted when the collateral rapes occurred, which made the circumstances of Cathy Gilliam’s abduction materially different. The collateral rapes provided an explanation for why Perkins approached Darlene Hall and abducted Cathy Gilliam: he was running from the police. [(See, e.g., id. at 2642-45, 2654-55.)] The collateral-act evidence was emotionally charged and inflammatory, but it supported the defense’s theory that Perkins did not intend to kill, injure, or sexually abuse Gilliam, which would have been sufficient to avoid a capital murder conviction.

38. Unlike the collateral-act evidence, “Cathy’s cry of rapist, ” [(id., Vol. 11, Tab 17 at 1734)], could not be reconciled with the defense’s theory; it radically undercut it. The State used the “cry of rapist” to show that Perkins’s intent was the same as it had been during the collateral crimes. [Id., Vol.15, Tab 21 at 2616; see id., Vol. 16, Tab 23 at 2669-70.)] The State had no other evidence that clearly connected the collateral rapes to the abduction of Gilliam.

39. Perkins was found guilty of capital murder and sentenced to death. [(Id., Vol. 2 at 288-89; id., Tab 3 at 354.)] His conviction and sentence were affirmed on direct appeal. Perkins v. State, 808 So.2d 1041 (Ala.Crim.App.1999), aff’d sub nom. Ex parte Perkins, 808 So.2d 1143 (Ala. 2001), vacated sub nom. Perkins v. Alabama, 536 U.S. 953 (2002), remanded sub nom. to Ex parte Perkins, 851 So.2d 453 (Ala. 2002).

40. In Rule 32 proceedings, Perkins discovered that – despite the State’s open-file policy and its representation at trial that Candace Gilliam heard her mother’s “cry of rapist” – the State possessed a videotaped interview in which Candace Gilliam stated that she did not know what, if anything, her mother said when she was abducted. P.C. 5298 at 05:37-05:55. In the interview, which was conducted thirteen days after the offense, a victims’ services officer repeatedly asked Candace Gilliam if she heard her mother say anything at the time of the abduction. Candace Gilliam repeatedly answered, “No.” When the officer continued to press her, Candace Gilliam explicitly stated that she could not make out any of her mother’s words. [(Id.)] It is undisputed that the State concealed that video from the defense. [(Id., Vol. 56, Tab 135 at 4489.)]

41. In his Rule 32 petition, Perkins argued that the State’s suppression of the video violated Brady v. Maryland, 373 U.S. 83 (1963). [(Id., Vol. 50, Tab 126 at 3391-97.)] Brady held that a prosecutor violates the Due Process Clause when the following three elements are met: (1) the prosecution suppresses evidence, (2) the suppressed evidence is favorable to the defense, and (3) the suppressed evidence is material to guilt or punishment. Brady, 373 U.S. at 87. Additionally, the State’s knowing false representation about Candace Gilliam’s testimony constituted a due process violation under Napue v. Illinois, 360 U.S. 264 (1959), and Giglio v. United States, 405 U.S. 150 (1972).

42. At the Rule 32 evidentiary hearing, Perkins’s trial counsel testified that if they had known about the video, they would not have agreed to the stipulation concerning Candace Gilliam’s testimony. [(See doc. 10, Vol. 63 at 195-96; id., Vol. 64 at 420.)] Thus, had the video been disclosed, “Cathy’s cry of rapist” either would not have been presented, or it would have been undercut on cross-examination. Had cross-examination occurred, the jury would have learned that the suppressed video captured Candace Gilliam’s account less than two weeks after the incident and included an extensive examination of exactly what she saw and heard. She provided specific details about the location of her mother’s car, P.C. 5298 at 06:45-07:50, relative positions of objects, [(id.)], and the alleged weapon, [(id. at 05:05-05:35)]. And she said repeatedly that she did not hear what, if anything, her mother said.

43. The Rule 32 circuit court found that the State suppressed the video. [(Doc. 10, Vol. 56, Tab 63 at 4488-89.)] The court also found that the video “was favorable impeachment evidence.” [(Id. at 4490.)] The court held that the video was not material, however, because it would not have “changed the outcome of the case.” [(Id.)] The circuit court denied relief. [(Id.)]

(Doc. 1 ¶¶ 29-43 [footnotes added].)

         Perkins appealed the Rule 32 court’s decision and the Alabama Court of Criminal Appeals affirmed the circuit court’s decision; it held:

Not only did Perkins fail to satisfy the requirements for establishing a Brady violation, Perkins also failed to satisfy the requirements for showing that this claim was based on newly discovered evidence.^[8] Perkins did show that the State failed to disclose Candace’s statement and that the statement would have been relevant for impeachment. However, contrary to Perkins’s assertions, the stipulated testimony was not the only evidence that tended to establish Perkins’s intent. Two witnesses testified that in the two weeks before the kidnapping and murder of Gilliam, Perkins had raped them. B.P. testified that she knew Perkins and that he had asked her to go with him to return a car to a friend. She said that after they had been driving for several minutes Perkins turned down a dirt road, put a knife to her throat, and raped her. D.W. testified that, as she was getting out of her vehicle at her grandmother’s house, Perkins came up behind her and put a knife to her throat. She said that he drove her to an abandoned building and raped her. Darlene Hall also testified that minutes before Gilliam was abducted, Perkins came to her house, knocked on her door, asked if her husband was at home, and asked to use her telephone to call a tow truck because, he said, his car was stuck in a field. Hall said that she did not open the door and that Perkins left. On direct appeal, this Court held that the collateral acts were admissible to show Perkins’s intent. Perkins, 808 So.2d at 1084.

Perkins failed to establish that there is a reasonable probability that, had Candace’s pretrial statement been disclosed, the outcome of the trial would have been different. Williams, 710 So.2d at 1296-97. Therefore, this Court agrees with the circuit court that Perkins failed to meet his burden of proving a Brady violation.

Perkins, 144 So.3d at 468-69 (footnote added).

         In his Petition, Perkins argues, “The state court’s ruling that the suppressed video was not material was contrary to and involved an unreasonable application of clearly established federal law, see 28 U.S.C. § 2254(d)(1), and was based on an unreasonable determination of the facts in light of the evidence in the record, see 28 U.S.C. § 2254(d)(2).” (Doc. 1 ¶ 45.)

         Under clearly-established Supreme Court precedent, “[t]here are three components of a true Brady violation: [1] The evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; [2] that evidence must have been suppressed by the State, either willfully or inadvertently; and [3] prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999). “Such evidence is material ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’” Id. at 280 (quoting United States v. Bagley, 473 U.S. 667, 676 (1985); citing Kyles v. Whitley, 514 U.S. 419, 433-34 (1995)). “Consequently, the issue before [the court] . . . is legally simple but factually complex. [The court] must examine the trial record, evaluate the withheld evidence in the context of the entire record, and determine in light of that examination whether there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Turner v. United States, 137 S.Ct. 1885, 1893 (2017). “The question is not whether the defendant would more likely than not have received a different verdict with the [withheld] evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles, 514 U.S. at 434. “In other words, favorable evidence is subject to constitutionally mandated disclosure when it ‘could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’” Cone v. Bell, 556 U.S. 449, 470 (2009)(quoting Kyles, 514 U.S. at 435 and citing Banks v. Dretke, 540 U.S. 668, 698-99 (2004) and Strickler, 527 U.S. at 290). “[U]ndisclosed evidence can require a new trial even if it is more likely than not that a jury seeing the new evidence would still convict.” Hays v. State of Ala., 85 F.3d 1492, 1498 (11th Cir. 1996).

         However, withheld evidence is not material if, when considered in the context of the entire record, “it is too little, too weak, or too distant from the main evidentiary points” of the case. See Turner, 137 S.Ct. at 1894.

         Perkins argues:

Under [the] circumstances, “[d]isclosure [of the interview of Candace] would have resulted in a markedly weaker case for the prosecution and a markedly stronger one for the defense.” Kyles, 514 U.S. at 441. A video that undercuts a prosecutor’s most direct, proximate evidence of intent is material to guilt and should be disclosed, particularly in a capital case. Disclosure would have severed the link between the collateral acts and the Gilliam abduction, putting the whole case in a different light. And it would have created a reasonable probability of a different result by allowing the jury to fairly consider the defense’s theory based on all of the available information. The state court’s contrary conclusion, which rests solely on a finding of other admissible evidence to support intent, is objectively unreasonable.

(Doc. 1 ¶ 55 [footnote omitted].) The court disagrees.^[9]

         Perkins’s defense to the capital charge was that he did not abduct Mrs. Gilliam with the intent to rape her or otherwise to physically harm her and that he did not intend to kill her when he shot her. Therefore, he was not guilty of kidnapping in the first degree and not guilty of capital murder, although he may have been guilty of a lesser-included offense such as felony murder. The State argued that Perkins abducted Mrs. Gilliam with the intent to rape or sexually assault her. In addition to Candace’s statement that she saw her mother being abducted at gunpoint and heard her mother say “something about rapist, ” the State based its case on two rapes perpetrated by Perkins in the two weeks prior to his kidnaping Mrs. Gilliam; the fact that he had a gun and a knife; the forensic evidence from the truck showing several bullet holes; and the autopsy report.

         Considering the entire record, the court finds that the Alabama court’s determination – that the withheld video of Candace’s interview, in which she said she did not hear what her mother said, is not material and the failure to disclose it did not prejudice Perkins’s defense – is not unreasonable. The evidence presented at trial showed that Perkins had raped two women in the days prior to his kidnapping of Mrs. Gilliam. He had a gun and a knife when he took Mrs. Gilliam from her home. However, he did not rape Mrs. Gilliam and, after he shot Mrs. Gilliam, he let her go near Maudeen Hood’s house. When she got to Ms. Hood’s house, Mrs. Gilliam was able to speak; she told Ms. Hood and first responders that she had not been raped and that Perkins had told her that he did not mean to shoot her.

         Other evidence showed that there was a struggle for the gun during which Perkins was shot in the leg and Mrs. Gilliam was shot in the chest. The truck also had gunshot holes in the windshield and the roof of the cab proving multiple gunshots were fired within the cab of the truck. Mrs. Gilliam died from a gunshot wound to the chest that destroyed her liver. No. gunpowder residue was found around her wound or on her clothing indicating that she was shot from a distance of about 18 inches. Moreover, there was no hole in her shirt from the gunshot proving that her shirt was not covering her chest at the time she was shot, which may indicate that Perkins was taking her clothes off at the time he shot her. She also had wounds to her neck that appeared to be knife wounds.

         In light of these facts whether Candace heard Mrs. Gilliam called out “rapist” or whether, as Candace stated in her first interview, she did not hear what her mother said, does not appear to be material. Mrs. Gilliam was taken from her home at gun point by Perkins, who had raped two women in as many weeks. Perkins shot Mrs. Gilliam in an apparent struggle for the gun and at the time of the shooting Mrs. Gilliam’s shirt was raised, exposing her abdomen. There is no question that the State failed to disclose relevant impeachment evidence that it had a duty to disclose. The court finds some possibility that, had Candace testified that she did not hear what her mother said, the jury may have credited the defense’s position that Perkins did not kidnap Mrs. Gilliam with the intent to rape her or to otherwise cause her physical harm.

         However, “As a condition for obtaining habeas corpus from a federal court, [Perkins] must show that the state court’s ruling on [his Brady] claim . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. at 103 (emphasis added). “Phrased more simply and maybe a little more clearly: if some fairminded jurists could agree with the state court’s decision, although others might disagree, federal habeas relief must be denied.” Hill v. Humphrey, 662 F.3d 1335, 1346 (11th Cir. 2011)(quoting Loggins v. Thomas, 654 F.3d 1204, 1220 (11th Cir. 2011))(internal quotations omitted).

         Considering the evidence at trial in light of Candace’s prior statement, the court cannot say that no fair-minded jurist could agree with the Alabama court’s decision that “Perkins [had] failed to establish that there [was] a reasonable probability that, had Candace’s pretrial statement been disclosed, the outcome of the trial would have been different.” Perkins, 144 So.3d at 469. Although some fair-minded jurists might disagree, trial evidence of the two sexual assaults occurring days before his abduction of Mrs. Gilliam and of Perkins’s abduction of Mrs. Gilliam at gunpoint – even assuming Mrs. Gilliam did not say anything about a rapist – is strong evidence that Perkins abducted Mrs. Gilliam with the intent to sexually assault her. Therefore, the Alabama court’s decision that Perkins did not establish a Brady violation is entitled to deference.

         Based on the foregoing, the court finds that Perkins is not entitled to any relief based on his claim that he was denied due process by the prosecution’s failure to disclose the tape of Candace’s initial interview.

         CONCLUSION

         The state court’s factual findings are supported by the record and must be given deference by this court. Perkins has failed to demonstrate that the state court’s rejection of this claim relied on erroneous facts, or applied law contrary to established United States Supreme Court precedent or in a manner that was objectively unreasonable in light of such precedent. Given these considerations, this court cannot conclude that the Alabama Court of Criminal Appeals unreasonably applied, or reached a decision contrary to, clearly established federal law. Therefore, Perkins is not entitled to habeas relief on this ground.

         2. Due Process Violation under Napue v. Illinois and Giglio v. United States

         Perkins alleges that “the State’s knowing false representation about Candace Gilliam’s testimony constituted a due process violation under Napue v. Illinois, 360 U.S. 264 (1959), and Giglio v. United States, 405 U.S. 150 (1972).” (Doc. 1 ¶ 41.)

         He argues:

A truthful stipulation would have stated that Candace Gilliam might testify that she did not hear her mother say any words, as she told the police in the videotaped interview. The stipulation offered by the prosecution did not have that qualification. Therefore, the stipulation was false, the jury was given a materially untrue depiction of Candace Gilliam’s credibility, and Perkins was denied a reliable determination of guilt.

(Doc. 1 ¶ 60 [emphasis added].) He contends that the Alabama court’s decision “adjudicated the claim on the merits and denied relief . . . [w]ithout reaching the question of whether the false testimony was material . . . because Perkins had not called Candace Gilliam to testify at the Rule 32 hearing.” (Id. ¶ 62.) Therefore, he contends that the state court’s decision is not entitled to any deference because –

64. Clearly established federal law holds “that the Fourteenth Amendment cannot tolerate a state criminal conviction obtained by the knowing use of false evidence.” Miller v. Pate, 386 U.S. 1, 7 (1967). The rule against using false evidence applies not only to falsification of the substance of a witness’s testimony, but also to false representations about a witness’s credibility. Giglio, 405 U.S. at 154.

65. To determine whether a prosecutor knew that evidence was false, clearly established federal law holds that a court must determine whether “the prosecution knew, or should have known, ” that the evidence was false. Agurs, 427 U.S. at 103. Knowledge of the prosecutor’s “superiors” and “associates” is attributed to the prosecutor regardless of actual knowledge. See, e.g., Giglio, 405 U.S. at 154. And knowledge of falsity may be inferred from the record. See, e.g., Miller v. Pate, 386 U.S. at 6.

66. The state court decision is contrary to clearly established federal law under 28 U.S.C. § 2254(d)(1). The test that applies to this sort of claim asks whether the “prosecution deliberately misrepresented the truth.” Miller v. Pate, 386 U.S. at 6. Instead of addressing that issue, the state court addressed the separate issue of what Candace Gilliam would say if called as a witness. Perkins, [144 So.3d at 470] (“Candace did not testify.”). However, Candace Gilliam’s testimony would not undo the prosecutor’s misrepresentation as to Candace Gilliam’s account. Because the state court chose to focus on what the witness did not say at the Rule 32 hearing instead of addressing what the prosecutor actually did at trial, its decision is contrary to clearly established federal law under 28 U.S.C. § 2254(d)(1). See Lafler v. Cooper, 132 S.Ct. 1376, 1390 (2012) (holding state court decision contrary to federal law where state court resolved claim by addressing wrong issue).

67. Similarly, the state court decision involved an unreasonable application of clearly established federal law under 28 U.S.C. §2254(d)(1) by failing to consider all of the facts in support of this claim. The state court’s analysis consisted of an observation that “[i]nconsistent statements by a witness do not, by themselves, establish that one statement is false and the other is true.” Perkins, [144 So.3d at 470]. The state court unreasonably ignored that the misconduct here was not based on the witness’s two statements, but on a stipulation that the prosecutor represented falsely as the witness’s only statement. [(Doc. 10, Vol. 11, Tab 19 at 1748.)] The state court’s decision involved an objectively unreasonable application of clearly established federal law under 28 U.S.C. § 2254(d)(1) because the court failed to recognize the significance of the stipulation and the circumstances surrounding it. See Rompilla v. Beard, 545 U.S. 374, 389-90 (2005)(holding “the state courts were objectively unreasonable” in denying claim where totality of circumstances supported relief).

68. The state court decision is also based on an unreasonable determination of the facts under 28 U.S.C. § 2254(d)(2). The evidence in the record established that the prosecutor misrepresented Candace Gilliam’s account of what she witnessed. The state court’s failure to consider that evidence and make that finding, in addition to being an unreasonable application of law, constitutes an unreasonable determination of the facts. See Adkins, 710 F.3d at 1254 (“Because the court overlooked material facts in its factfinding, it . . . unreasonably determined the facts . . . .”).

69. The state court did not address whether the false evidence was material. See Perkins, [144 So.3d at 469-70]. Therefore, this issue was not adjudicated on the merits by the state court and should be reviewed de novo by this Court. See 28 U.S.C. § 2254(d); see also Wiggins v. Smith, 539 U.S. 510, 534 (2003)(“[O]ur review is not circumscribed by a state court conclusion with respect to [one part of a two-part test], as neither of the state courts below reached this prong of [test].”).

(Id. ¶¶ 64-69.)

         The Court of Criminal Appeals rejected Perkins’s claim on appeal; it held:

Perkins next argues that the State violated his constitutional right to due process by knowingly using false testimony by informing the defense that Candace would testify that her mother yelled something about a rapist as she was being forced from the house. According to Perkins, the State’s representation was false because a pretrial statement by Candace indicated that she did not know what her mother yelled.

. . .

To prove a Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), violation, the petitioner must show that: (1) the State used the testimony; (2) the testimony was false; (3) the State knew the testimony was false; and (4) the testimony was material to the guilt or innocence of the accused. Williams v. Griswald, 743 F.2d [1533, ] 1542 [(11th Cir. 1984)]. “[T]he defendant must show that the statement in question was ‘indisputably false, ’ rather than merely misleading.” Byrd v. Collins, 209 F.3d 486, 517 (6th Cir. 2000) (quoting United States v. Lochmondy, 890 F.2d 817, 823 (6th Cir. 1989)). “The burden is on the defendants to show that the testimony was actually perjured, and mere inconsistencies in testimony by government witnesses do not establish knowing use of false testimony.” Lochmondy, 890 F.2d at 822. “[I]t is not enough that the testimony is challenged by another witness or is inconsistent with prior statements, and not every contradiction in fact or argument is material.” United States v. Payne, 940 F.2d 286, 291 (8th Cir. 1991)(citing United States v. Bigeleisen, 625 F.2d 203, 208 (8th Cir. 1980)). “[T]he fact that a witness contradicts himself or herself or changes his or her story does not establish perjury.” Malcum v. Burt, 276 F.Supp.2d 664, 684 (E.D. Mich. 2003)(citing Monroe v. Smith, 197 F.Supp.2d 753, 762 (E.D. Mich. 2001)).

At the postconviction evidentiary hearing, Candace did not testify. No. evidence was presented that the stipulated testimony was, in fact, false. Inconsistent statements by a witness do not, by themselves, establish that one statement is false and the other is true. See United States v. Payne, supra. Accordingly, Perkins failed to meet his burden of proving a Giglio violation, and the circuit court correctly denied relief on this claim.

Perkins, 144 So.3d at 469-70.

         Supreme Court law “has long been established that the prosecution’s ‘deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice.’” Banks, 540 U.S. at 694 (quoting Giglio, 405 U.S. at 153 (quoting Mooney v. Holohan, 294 U.S. 103, 112 (1935)))(emphasis added). Nothing in any Supreme Court case implies that a habeas petitioner can state a claim based on the prosecutor’s knowing presentation of false testimony or failure to correct testimony he knows to be false without showing that the testimony is actually false; or that a prosecutor has deliberately presented known false evidence when he represents the substance of a witness’s statement without equivocation, even though the witness has given inconsistent statements over the course of an investigation. Other than proof of the undisclosed interview, Perkins failed to show that the prosecutors knew the stipulation – Candace heard her mother cry “rapist” – was false.

         The law is well established that:

[A] prior statement that is merely inconsistent with a government witness’s testimony is insufficient to establish prosecutorial misconduct. United States v. Michael, 17 F.3d 1383, 1385 (11th Cir. 1994)(“We refuse to impute knowledge of falsity to the prosecutor where a key government witness’[s] testimony is in conflict with another’s statement or testimony.”); Hays v. Alabama, 85 F.3d 1492, 1499 (11th Cir. 1996) (determining there was no due process violation where “there has been no showing that [the witness’s] later, rather than earlier, testimony was false”); United States v. Gibbs, 662 F.2d 728, 730 (11th Cir. 1981) (“Though knowing prosecutorial use of false evidence or perjured testimony violates due process . . . it is not enough that the testimony . . . is inconsistent with prior statements.”); United States v. Brown, 634 F.2d 819, 827 (5th Cir. Jan. 1981)(“[D]ue process is not implicated by the prosecution’s introduction or allowance of false or perjured testimony unless the prosecution actually knows or believes the testimony to be false or perjured; it is not enough that the testimony is challenged by another witness or is inconsistent with prior statements.”).

United States v. McNair, 605 F.3d 1152, 1208-09 (11th Cir. 2010)(emphasis added). In dicta the Supreme Court has held, “A mere claim that a witness gave inconsistent testimony is not enough to charge the prosecution’s knowing use of false testimony; it may well be that the witness’[s] subsequent statements were true, in which event the claim of inconsistency is not a constitutional objection.” Price v. Johnston, 334 U.S. 266, 288 (1948)(citing Mooney). Although some fair-minded jurists might disagree, the Alabama court’s decision – that Perkins failed to prove a Giglio violation because he did not prove that the stipulated testimony was, in fact, false, as opposed to merely inconsistent with Candace’s pretrial interview – was not contrary to or an unreasonable application of clearly established law or an unreasonable determination of the facts.

         Based on the foregoing, the court finds that Perkins is not entitled to any relief based on his claim that he was denied due process by the prosecution’s presentation of false testimony or failure to correct false testimony.

         CONCLUSION

         The state court’s factual findings are supported by the record and must be given deference by this court. Perkins has failed to demonstrate that the state court’s rejection of this claim relied on erroneous facts, or applied law contrary to established United States Supreme Court precedent or in a manner that was objectively unreasonable in light of such precedent. Given these considerations, this court cannot conclude that the Alabama Court of Criminal Appeals unreasonably applied, or reached a decision contrary to, clearly established federal law. Therefore, Perkins is not entitled to habeas relief on this ground.

         B. THE STATE TRIAL COURT VIOLATED PERKINS’S RIGHT TO COUNSEL BY REPLACING HIS COUNSEL MIDWAY THROUGH THEIR PRETRIAL PREPARATIONS

         Perkins claims, “The state trial court violated [his] right to counsel by removing his lawyers, who had represented [him] for a year and were willing to continue representing him, where there was no serious potential for a conflict of interest or any other harm, and removal served no legitimate state interest.” (Doc. 1 ¶ 72.) He alleges:

73. Roy Perkins was arrested on August 12, 1990, and charged with capital murder. [(Doc. 10, Vol. 1 at 2-3, 134.)] The trial court formally appointed the Tuscaloosa County Public Defender’s Office [hereinafter PDO] to represent him 19 months later. [(Id. at 7 [March 10, 1992].)] Ricky McKinney and George Taylor became Perkins’s counsel and represented him for the next year. [(See, e.g., id. at 7-14, 17-39, 47-58; id., Vol 2, Tab 2 at 290-92; id., Vol. 3 at 25-27; id., Vol. 19, Tab 41 at 25-32.)]

74. By late-October 1992, Perkins’s counsel had undertaken substantial preparation of a defense. Counsel had requested a mental-health evaluation. [(Id., Vol. 1 at 18 [July 31, 1992].)] They had begun seeking expert assistance and filed a motion to proceed ex parte on requests for funds in order to protect “the independence of the defense” and avoid disclosure of trial strategy. [(Id. at 20-39.)] They moved for permission to allow Perkins to participate in his defense as co-counsel. [(Id. at 47, ¶ 4 [Oct. 7, 1992].)] They had begun compiling evidence in support of a motion for change of venue. [(Id., Vol. 4 at 226.)] Most importantly, they understood the evidence and issues likely to arise at both the guilt and penalty phases, as reflected in a discovery motion that asked for disclosure of statements or recordings of specific witnesses. [(Id., Vol. 1 at 52-54 (Oct. 7, 1992).)] Counsel also sought information about the physical evidence and tests performed by the Alabama Department of Forensic Sciences, [(id. at 54-55)], information about Perkins’s mental state and life history, [(id. at 55-57)], and information relevant to the existence of aggravating or mitigating circumstances, [(id. at 54)], among other things.

75. Approximately a year after Perkins’s counsel began preparing a defense, the prosecution filed a motion to disqualify the [PDO] from representing Perkins. [(Id. at 63-64 (February 16, 1993).)] The motion alleged that a former police detective named Shirley Fields had left the Tuscaloosa Police Department and accepted new employment as an investigator for the [PDO]. [(Id. at 63.)] This was a problem, according to the motion, because Fields was “deeply” involved in Perkins’s prosecution, held confidential information, and would be “consulted extensively” during the prosecution’s trial preparations. [(Id. at 64.)]

76. The prosecution’s motion was heard the following month. Shirley Fields testified at the hearing. He said that he was not deeply involved in the prosecution, or even actively involved in it. [(Id., Vol. 2, Tab 5 at 14.)] According to Fields, “My only involvement in Mr. Perkins’[s] case was that I was present when Investigator Simpson processed a truck at the homicide office, ” [(id. at 12)], and “Simpson actually did all of the processing, ” id. Fields testified that he had not questioned any of the witnesses in the case, that he had no independent recollection of any conversations that he had with any of the investigators or prosecutors assigned to the case, and that he had no active role in supervising any of the officers assigned to the case apart from “the process of processing the vehicle.” [(Id. at 13.)] With regard to the prosecution’s anticipated need for extensive consultations with Fields, Fields disavowed participation in trial strategy, [(id. at 14)], and could not recall a single conversation “with anyone from the District Attorney’s Office regarding this particular case, ” [(id. at 13)].

77. Perkins wanted the public defender’s office to represent him, [(id., Vol. 3 at 27)], the public defender’s office was willing to represent Perkins, [(id. at 28)], and Perkins opposed the prosecution’s motion, [(id. at 24-26)]. Based on the evidence presented at the hearing, Perkins’s counsel argued that Fields was not substantially participating in the case, did not participate in the investigation beyond being present and perhaps discussing with Officer Simpson while Officer Simpson performed the processing of the vehicle. He did not participate in the interview of any witnesses. He did not participate in the interview of the defendant. His . . . actual supervision in this particular case is virtually nonexistent . . . . We don’t feel under the circumstances that he did substantially participate in the investigation of Mr. Perkins’[s] case and that under those circumstances, there is not an actual conflict . . . .

[(Id. at 26.)] Counsel represented that Perkins waived any potential conflict related to the possibility that Fields might be called as a witness at trial and cross-examined by a co-worker, although it was “difficult to envision” that occurring. [(Id.)] [Footnote] Counsel added, “We feel like under the circumstances, he has developed a relationship with his attorney, Mr. McKinney, a trust in Mr. McKinney and a confidence in that representation which would be materially damaged if he was required to change counsel at this time.” [(Id. at 27.)]

[Footnote:] As expected, Fields did not testify at Perkins’s trial.

78. The trial court granted the prosecution’s motion and disqualified the [PDO]. [(Id., Vol. 1 at 65 (March 19, 1993).)] Several weeks later, the public defender’s office filed an unopposed motion for reconsideration and factfinding. [(Id. at 70.)] The trial court granted the motion and entered a new order stating that there was “no evidence” of a conflict of interest under the ethics rules, but that the [PDO] was disqualified in order to avoid the “appearance of impropriety.” [(Id. at 71 (April 19, 1993).)]

79. In the months that followed, the trial court appointed former Tuscaloosa County District Attorney’s Office prosecutors Dennis Steverson and James Smith to represent Perkins. [(Id., Vol. 2, Tab 2 at 292-93.)] They met with Perkins for the first time in August 1993. [(Id. at 293; id., Vol. 1 at 74.)]

(Doc. 1 ¶¶ 73-79 and n.8 [footnote 7 omitted].)

         On direct appeal, the Alabama Court of Criminal Appeals found:

In February 1993, over a year before Perkins’s trial, the State filed a motion to disqualify the public defender’s office from representing Perkins based on a potential conflict of interest. The State argued that the hiring of Shirley Fields – a former captain in the Tuscaloosa homicide unit and second in command of that unit during its investigation of Mrs. Gilliam’s murder – as an investigator with the public defender’s office, created a potential conflict of interest because Fields had been involved in the murder investigation in a supervisory capacity, was privy to confidential government information concerning the case that was not subject to disclosure, and was a possible witness for the State at Perkins’s trial. At a hearing on the motion in March 1993, Fields testified that he played a supervisory role in the investigation of Mrs. Gilliam’s death, that he was privy to sensitive information about the investigation, that he participated in the processing of one of the State’s most important pieces of evidence (the gray pickup truck), but that he had not been actively involved in every aspect of the investigation. In addition, he stated that, in the past, the district attorney’s office had often consulted him about trial strategy in cases in which he had played a supervisory role. Following Fields’s testimony, the public defender representing Perkins argued against the motion, stating that although there was a potential conflict if the State ultimately called Fields to testify, Perkins was willing to waive that potential conflict. After the hearing, the trial court entered a written order granting the State’s motion to disqualify the public defender’s office, stating, in pertinent part:

“This Court finds no evidence of a violation of Rule of Professional Responsibility 1.11. However, the nature of this case and the scrutiny to which it would be subjected upon possible appellate review, warrants this Court to act with extreme caution to avoid any appearance of impropriety or appearance of a conflict of interest. The Court noted this exercise of caution is to protect both the rights of the State and the defendant. The Court further finds that substitution of counsel at this stage of the proceedings produces no injury to Mr. Perkins’s defense.”

[(Doc. 10, Vol. 1 at 71-72.)]

Perkins, 808 So.2d at 1059-60. The Court of Criminal Appeals held:

Fields’s testimony at the hearing on the State’s motion to recuse revealed that he was involved in the investigation of Mrs. Gilliam’s murder in a supervisory capacity and that he was privy to sensitive information concerning the case. In addition, Fields was a potential witness for the State based on his involvement in the processing of the gray pickup truck. This created not only an “appearance of impropriety, ” as the trial court stated, but a real potential for conflict. Contrary to Perkins’s contention, merely because this potential conflict did not burgeon into an actual conflict of interest (Fields was, in fact, not called as a witness for the State), does not lessen the duty of the trial court to exercise caution, especially in a case where the most severe of all penalties might be imposed.

Id. at 1060. The court found “a clear potential for conflict in this case, ” for the PDO and the State based on “Fields’s employment with the office representing Perkins, after his involvement in the investigation of Mrs. Gilliam’s death, combined with the possibility that he may have been called as a witness for the State at Perkins’s trial.” Id. at 1061. Therefore, it found “no abuse of discretion on the part of the trial court in exercising its own scrutiny to ensure a fair trial to both sides in a case” by disqualifying the [PDO], id. and “no abuse of discretion in the trial court’s rejection of Perkins’s offer to waive the potential conflict, ” id.

         Perkins contends that “[t]he state court’s decision [affirming the trial court’s disqualification of the PDO] is contrary to or involves an unreasonable application of clearly established federal law, 28 U.S.C. § 2254(d)(1), and is based on an unreasonable determination of the facts in light of the evidence in the record, 28 U.S.C. § 2254(d)(2).” (Doc. 1 ¶ 81.) Specifically he contends that the decision of the Court of Criminal Appeals, which was based on a finding of a clear potential for conflict rather than a serious potential for conflict, is contrary to Supreme Court precedent. (Doc. 1 ¶¶ 84-85 [citing, inter alia, Wheat, 486 U.S. at 162-64](emphasis added).) He contends that the Alabama court’s decision represents an unreasonable application of Supreme Court precedent because the risk that the public defender “would have been prevented from doing anything if Fields had been called to testify for the State, ” which Perkins describes as the “touchstone of a conflict, ” is nonexistent. (Id. ¶ 86 [citing, inter alia, Holloway v. Arkansas, 435 U.S. 475, 489-90 (1978)].) And, Perkins contends, the Alabama court’s decision, that a potential conflict of interest existed, “was based on an objectively unreasonable determination of the facts, ” because “[t]he record clearly establishes that Fields’s only relationship to the [investigation of his] case was supervising the processing of a truck.” (Id. ¶ 87.)

         Generally, Supreme Court precedent establishes that –

the Sixth Amendment grants a defendant “a fair opportunity to secure counsel of his own choice.” Powell [v. Alabama], [287 U.S. 45');">287 U.S. 45, ] 53 [(1932)], 53 S.Ct. 55; see [United States v.] Gonzalez-Lopez, [548 U.S. 140');">548 U.S. 140, ] 150, 126 S.Ct. 2557 (describing “these myriad aspects of representation”). This “fair opportunity” for the defendant to secure counsel of choice has limits. A defendant has no right, for example, to an attorney who is not a member of the bar, or who has a conflict of interest due to a relationship with an opposing party. See Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). And an indigent defendant, while entitled to adequate representation, has no right to have the Government pay for his preferred representational choice. See Caplin & Drysdale[, Chartered v. United States], 491 U.S. [617, ] 624, 109 S.Ct. 2646');">109 S.Ct. 2646 [(1989)].

Luis v. United States, 136 S.Ct. 1083, 1089 (2016). “The [trial court] must recognize a presumption in favor of petitioner’s counsel of choice, but that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict. The evaluation of the facts and circumstances of each case under this standard must be left primarily to the informed judgment of the trial court.” Wheat, 486 U.S. at 164.

         Supreme Court precedents do not clearly establish a constitutional right to continued representation of appointed attorneys, see United States v. Parker, 469 F.3d 57, 61 (2d Cir. 2006)(Sotomayor, J.), or continued representation when a potential conflict arises because of a side-switching, non-attorney employee without a waiver of the conflict by both sides.^[10] Although Fields may have performed limited hands-on work on the investigation of Mrs. Gilliam’s murder, he was present as a supervisor during the processing of an important piece of evidence, the truck; he was privy to sensitive information regarding the investigation and other investigations by virtue of his position as second in command;^[11] and the record contains no indication that any effort was made to isolate Fields from the PDO’s representation of Perkins or to maintain the confidential information possessed by Fields. Under the particular facts of this case^[12] and in light of the lack of controlling Supreme Court precedent addressing a similar fact situation, the court finds that deference to the decision of the Alabama Court of Criminal Appeals is warranted.

         CONCLUSION

         The state court’s factual findings are supported by the record and must be given deference by this court. Perkins has the burden under 28 U.S.C. § 2254(e)(1) to rebut the state court’s factual determinations as to this issue with clear and convincing evidence. He has failed to demonstrate that the state court’s rejection of this claim relied on erroneous facts, or applied law contrary to established United States Supreme Court precedent or in a manner that was objectively unreasonable in light of such precedent. Given these considerations, this court cannot conclude that the Alabama Court of Criminal Appeals unreasonably applied, or reached a decision contrary to, clearly established federal law. Therefore, Perkins is not entitled to habeas relief on this ground.

         C. FAILURE TO GRANT A CHANGE OF VENUE

         Perkins alleges that “[t]he state trial court violated [his] right to an impartial jury by forcing him to be tried in a community that had been saturated with publicity and [that] feared [him].” (Doc. 1 ¶ 91.) According to Perkins, “75 percent of veniremembers admitted to having been exposed to substantial pretrial publicity about the crime [and] [s]even members of [his] jury admitted to being exposed to pretrial publicity by radio, television, newspapers, or word of mouth.” (Id. ¶ 99.) He contends, “The publicity had three interconnected aspects that constitute a departure from ordinary, objective news coverage, ” (id. ¶ 93):

“First, much of the publicity reflected or provoked the community’s particularized fear of being harmed by Perkins in their homes; members of the community were depicted as victims of terrorism.” (Id. ¶ 94.)

“Second, the publicity linked Perkins to broader issues of public policy, politicizing his case. Perkins was on parole at the time of the alleged crimes, and people blamed the Alabama Board of Pardons and Paroles for failing to protect the public.” (Id. ¶ 96.)

“Third, the coverage encouraged readers victimized by fear of Perkins to identify with Cathy Gilliam and her surviving husband and children. The narrative - which mirrored the prosecution’s trial theme - was that Perkins was a rapist and Cathy Gilliam died to protect her daughter and to avoid being raped.” (Id. ¶ 97.)

         “This combination of factors created a risk that jurors would view their role as empowered victims taking the protection of their community into their own hands instead of serving their constitutionally mandated role as skeptical buffer between Perkins and the power of the government to imprison and execute him.” (Id. ¶ 106.)

         In his Petition, Perkins argues that the state court erred in failing to examine the totality of the circumstances to find “implied juror bias.” (Id. ¶ 105). He contends that the state-court decision is “contrary to or an unreasonable application of clearly established federal law because the court failed to determine whether jurors were impliedly biased based on the ‘totality of circumstances, ’ [and] [i]nstead, . . . based its finding that jurors were not impliedly biased solely on ‘the media materials presented to the trial court.’” (Id. ¶ 108 [citing Murphy, 421 U.S. at 799; quoting Perkins, 808 So.2d at 1069].) He alleges (1) “the state court examined the transcript of voir dire only to determine whether jurors were actually biased in fact, not to determine whether a presumption of prejudice arose based on the totality of the circumstances, ” and (2) “the state court completely failed to consider as part of the totality of the circumstances the statements of public officials about the crime, the victimization of the community, the emotional narrative of the prosecution’s case, or the extensive and inherently prejudicial collateral-act evidence that the prosecution put before the jury, much of it keyed to media reports.” (Id.) Also, “Assuming that the state court properly considered the totality of the circumstances, ” Perkins contends that “its conclusion that there was no implied bias[, ] and thus no presumed prejudice[, ] . . . involve[s] an unreasonable application of clearly established federal law.” (Id. [citing, inter alia, Abdul-Kabir v. Quarterman, 550 U.S. 233, 258 (2007)].) Finally, he argues, “The state court decision [that the media coverage was relatively objective is] an unreasonable determination of the facts in light of the evidence in the record, ” because (1) “[m]ost of the articles adopted the perspective of actual victims, . . . potential victims, . . . and law enforcement officers, ” and (2) an article published the day before trial “described the community’s steadfast belief that Perkins was guilty, its refusal to forgive, and its overwhelming support for sentencing him to death.” (Id. ¶ 109.)

         On direct appeal, the Alabama Court of Criminal Appeals held:

We acknowledge that Perkins’s case received extensive publicity in Tuscaloosa County. However, “‘in order to obtain a change of venue, it must be shown that pre-trial publicity surrounding the case was inherently prejudicial.’” Oryang [v. State], [642 So.2d 979] 983 [(Ala.Crim.App.1993)], quoting Holladay v. State, 549 So.2d 122, 125 (Ala. Cr. App. 1988), aff’d, 549 So.2d 135 (Ala.), cert. denied, 493 U.S. 1012, 110 S.Ct. 575, 107 L.Ed.2d 569 (1989). We recognize that the “presumptive prejudice” standard is “‘rarely’ applicable, and is reserved for only ‘extreme situations.’” Hunt [v. State], 642 So.2d [999, ] 1043 [(Ala.Crim.App.1993)], quoting Coleman v. Kemp, 778 F.2d 1487, 1537 (11th Cir. 1985), cert. denied, 476 U.S. 1164, 106 S.Ct. 2289, 90 L.Ed.2d 730 (1986). We also recognize that Perkins’s burden – to show that pretrial publicity so saturated the community as to deny him a fair trial – is a very heavy burden. See Hunt, supra at 1043. “‘Prejudicial’ publicity usually must consist of much more than stating the charge and reporting on the pretrial and trial processes. ‘Publicity’ and ‘prejudice’ are not the same thing. Excess publicity does not automatically or necessarily mean that the publicity was prejudicial.” [Id.]

We do not find that the pretrial publicity in this case so “pervasively saturated” the community as to render the court proceedings nothing more than a “hollow formality.” Oryang, supra, at 983. Nor do we find that the publicity was so inherently prejudicial as to create a presumption of prejudice. To justify a change of venue, the publicity must be both extensive and sensational in nature. “If the media coverage is factual as opposed to inflammatory or sensational, this undermines any claim for a presumption of prejudice.” United States v. Angiulo, 897 F.2d 1169, 1181 (1st Cir.), cert. denied, 498 U.S. 845, 111 S.Ct. 130, 112 L.Ed.2d 98 (1990). We have examined the media materials presented to the trial court, and we find that most of the reports were factual and relatively objective rather than accusatory, inflammatory, or sensational. Perkins has failed to prove that the media reports so inflamed or saturated the community as to create an emotional tide against him. Thus, he has not shown that the pretrial publicity in this case was so inherently or presumptively prejudicial as to constitute one of those “extreme situations” that warrant a presumption of prejudice.

In addition, we find no evidence of bias on the part of prospective jurors so pervasive as to indicate actual prejudice. On appeal, Perkins offers us nothing more than the assertion that the majority of the prospective jurors on the venire had heard about the case and that 25 of the 88 prospective jurors had been excused for cause based on their exposure to pretrial publicity. However, as the Alabama Supreme Court stated in Ex parte Grayson, 479 So.2d 76 (Ala.), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157 (1985):

[“As the Supreme Court explained in Irvin v. Dowd, 366 U.S. 717');">366 U.S. 717, 723, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961):]

“‘To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. . . .’

“The standard of fairness does not require jurors to be totally ignorant of the facts and issues involved. Murphy v. Florida, 421 U.S. 794, 799-800, 95 S.Ct. 2031, 2035-2036, 44 L.Ed.2d 589 (1975). Thus, ‘[t]he proper manner for ascertaining whether adverse publicity may have biased the prospective jurors is through the voir dire examination.’ Anderson v. State, 362 So.2d 1296, 1299 (Ala.Crim.App.1978).”

479 So.2d at 80. “ ‘ “The relevant question is not whether the community remembered the case, but whether the jurors at [the accused’s] trial had such fixed opinions that they could not judge impartially the guilt of the defendant.” Patton v. Yount, 467 U.S. 1025, 1035, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984).’ ” Siebert v. State, 562 So.2d 586, 589 (Ala. Cr. App. 1989), aff’d, 562 So.2d 600 (Ala.), cert. denied, 498 U.S. 963, 111 S.Ct. 398, 112 L.Ed.2d 408 (1990), quoting Fortenberry v. State, 545 So.2d 129 (Ala. Cr. App. 1988), aff’d, 545 So.2d 145 (Ala. 1989), cert. denied, 495 U.S. 911, 110 S.Ct. 1937, 109 L.Ed.2d 300 (1990). The jury venire in this case was extensively and thoroughly examined in an individual, sequestered setting regarding each prospective juror’s knowledge about the case. While the majority of prospective jurors were aware of the abduction and murder of Mrs. Gilliam, and of the manhunt by law enforcement officials to capture Perkins following the murder, opinions of less than one-third (25 of 88) of the venire were actually tainted by pretrial publicity. See Russell v. State, 739 So.2d 58 (Ala. Cr. App. 1999).

Perkins has failed to show either that the community was saturated with pretrial publicity or that actual prejudice existed among the jurors at his trial. The media coverage was not so sensational and inflammatory as to create a presumption of prejudice. The record contains no indication that any juror who sat on Perkins’s jury had a fixed opinion of Perkins’s guilt or that the verdict was not impartially rendered on the evidence presented at trial. Accordingly, we find that the trial court did not abuse its discretion in denying Perkins’s motion for a change of venue.

Perkins, 808 So.2d 1068-70.

         In his Petition, Perkins challenges the state court’s finding regarding a presumption of prejudice; he does not challenge the court finding that his jury was not actually prejudiced by pretrial publicity. Generally –

[The Supreme] Court has established that a refusal to grant a motion for change of venue may constitute a violation of due process. See Groppi v. Wisconsin, 400 U.S. 505, 91 S.Ct. 490, 27 L.Ed.2d 571 (1971); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Irvin v. Dowd, [366 U.S. 717');">366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961)]. A defendant seeking to establish such a violation must demonstrate either that his trial resulted in “identifiable prejudice” or that it gave rise to a presumption of prejudice because it involved “such a probability that prejudice will result that it is deemed inherently lacking in due process.” Estes v. Texas, 381 U.S. 532, 542-543, 85 S.Ct. 1628, 1632-1633, 14 L.Ed.2d 543 (1965). In deciding whether such a presumption of prejudice is warranted, courts must examine “any indications in the totality of circumstances that petitioner’s trial was not fundamentally fair.” Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975).

Brecheen v. Oklahoma, 485 U.S. 909, 910 (1988)(Marshall, J., dissenting from denial of cert.) (emphasis added).

         “A presumption of prejudice, [Supreme Court] decisions indicate, attends only the extreme case.” Skilling v. United States, 561 U.S. 358, 379-81 (2010)(citing, inter alia, Sheppard v. Maxwell, 384 U.S. 333, 354-55, 358 (1966), Estes, 381 U.S. at 536-38, Rideau, 373 U.S. at 725-27); see also Mills v. Singletary, 63 F.3d 999, 1010 (11th Cir. 1995)(“[T]he principle of presumed prejudice is rarely applicable and reserved for extreme situations.”)(internal quotations and citations omitted).

         “[P]retrial publicity even pervasive, adverse publicity does not inevitably lead to an unfair trial.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 554 (1976), quoted in Skilling, 561 U.S. at 384. And, “A high level of publicity is not necessarily inconsistent with the ability of the defendant to obtain a fair trial where the publicity has been largely factual in nature or where it abated some time prior to trial.” Gannett Co. v. DePasquale, 443 U.S. 368, 443 (1979)(Blackmun, J., concurring in part and dissenting in part) (citing Murphy, 421 U.S. at 802; Beck v. Washington, 369 U.S. 541, 542-45, 557-58 (1962); Stroble v. California, 343 U.S. 181, 191-94 (1952))(internal citations omitted; emphasis added). “[T]he Supreme Court has ruled that we cannot presume prejudice in the absence of a ‘trial atmosphere . . . utterly corrupted by press coverage.’” United States v. Campa, 459 F.3d 1121, 1144 and n.198 (11th Cir. 2006)(quoting Dobbert v. Florida, 432 U.S. 282, 303 (1977)(quoting Murphy, 421 U.S. at 798)). “[T]he ‘quantum’ of the publicity does not, standing alone, create a presumption that a defendant was denied a fair trial by an impartial jury. . . . [T]he nature of the publicity and whether it is the sort that could be laid aside by jurors, rather than its volume, is the crucial factor to be considered.” Davis v. Jones, 441 F.Supp.2d 1138, 1167-68 (M.D. Ala. 2006)(internal citations and quotations omitted), aff’d, 506 F.3d 1325 (11th Cir. 2007).

         Although the nature of the murder, the character and criminal history of Perkins, and the subsequent manhunt received a great deal of media coverage in August 1990, nothing in the record indicates that media coverage created “bedlam” or a “carnival atmosphere” at the time of the trial in April 1994. See Skilling, 561 U.S. at 380 (quoting Sheppard v. Maxwell, 384 U.S. 333, 355 (1966)).^[13] The articles are primarily factual, focused on the kidnaping and murder of Mrs. Gilliam, Perkins’s criminal history, the ensuing manhunt, and the sentiment in the community during August 1990. Media coverage after this time was limited and each member of the venire was questioned about their exposure to news coverage.

         In addition to the volume and the content of the media coverage, another factor the court must consider in the totality of the circumstances is the timing of the adverse pretrial publicity. In this case, the majority of the media stories included in the record occurred at the time of the crime and the subsequent manhunt in August 1990. Two articles were published in the Tuscaloosa newspaper the Sunday before jury selection began in April 1994 – “a time when prejudicial publicity was greatly diminished . . . .” See Patton v. Yount, 467 U.S. 1025, 1032 (1984); see also Skilling, 561 U.S. at 383 (noting “the decibel level of media attention diminished somewhat in the [four] years” between Enron’s bankruptcy and Skilling’s trial). “That time soothes and eases [public sentiment] is a perfectly natural phenomenon, familiar to all.” Patton, 467 U.S. at 1034-35. These articles and word-of-mouth discussions occurring at or near the time of jury selection do not reveal a “barrage of inflammatory publicity immediately prior to trial, amounting to a huge . . . wave of public passion.” Id. at 1033 (internal citations and quotations omitted). “[T]he passage of time . . . can be a highly relevant fact. In the circumstances of this case, . . . it clearly rebuts any presumption of partiality or prejudice that [may have] existed at the time of [the crime and the subsequent manhunt].” See id. at 1035.

         Another factor the court should consider is “the credibility of prospective jurors who indicate during voir dire that they could be impartial despite having been exposed to pretrial publicity about the case.” United States v. Lehder-Rivas, 955 F.2d 1510, 1524 (11th Cir. 1992). This court has considered the extensive voir dire in this case and finds that the majority of prospective jurors had not closely followed the media coverage of this case. And, the twelve jurors and two alternates selected to serve on the jury appear to have “credibly asserted that they could remain impartial.” Id. at 1525. No. evidence from these venire members indicates otherwise.

         Therefore, the court finds “the totality of the circumstances provides no basis for concluding that ‘the community was . . . so inflamed and biased [ ] as to create a presumption of prejudice that a fair and impartial jury panel could not be impaneled.’” Id. (quoting United States v. De La Vega, 913 F.2d 861, 865 (1990)). The court finds no error in the state court’s judgment that the majority of the articles were objective. “[E]xtensive knowledge in the community of either the crimes or the putative criminal is not sufficient by itself to render a trial constitutionally unfair.” Dobbert, 432 U.S. at 303. Moreover, the opinions and feelings of crime victims and community members are “facts” and articles reporting such facts are objective reports – unlike editorials or opinion pieces.

         Based on the circumstances of this case, including the entire record of the voir dire of the venire, the newspaper articles submitted with the appeal record, and the transcripts of the hearings on Perkins’s motion for change of venue, the court finds Perkins has not demonstrated that the decision of the Alabama Court of Criminal Appeals was contrary to or an unreasonable application of Supreme Court precedent or that its decision was an unreasonable determination of the facts.

         For all the foregoing reasons, this claim is without merit and is due to be denied.

         CONCLUSION

         The state court’s factual findings are supported by the record and must be given deference by this court. Perkins has failed to demonstrate that the state court’s rejection of this claim relied on erroneous facts, or applied law contrary to established United States Supreme Court precedent or in a manner that was objectively unreasonable in light of such precedent. Given these considerations, this court cannot conclude that the Alabama Court of Criminal Appeals unreasonably applied, or reached a decision contrary to, clearly established federal law. Therefore, Perkins is not entitled to habeas relief on this ground.

         D. ADMISSION OF COLLATERAL-ACT EVIDENCE DENIED PERKINS A FAIR TRIAL AND RELIABLE SENTENCE

         Perkins contends that his “Fourteenth Amendment right to a fair trial and Eighth Amendment right to a reliable determination of sentence” were violated by the trial court’s admission of collateral-act evidence of two rapes, which occurred in the two weeks before he killed Mrs. Gilliam; the facts surrounding the incident at Darlene Hall’s house, the theft of the gray truck, which contained the murder weapon, and the trial court’s sua sponte failure to give a limiting instruction. (Doc. 1 ¶ 111.) He alleges:

112. In order to find Roy Perkins guilty of capital murder, the jury had to find that Perkins intended to physically injure or sexually abuse Cathy Gilliam at the time of the abduction. The most direct evidence suggesting that Perkins specifically intended to rape Cathy Gilliam came through testimony of her daughter Candace, who testified by stipulation that Cathy Gilliam yelled the word “rapist” as she was being led away from her home. [(Doc. 10, Vol. 11, Tab 19 at 1755.)] However, the prosecution lacked any physical evidence of a sexual assault, and both Cathy Gilliam, [(id., Vol. 12 at 2029)], and the medical examiner who performed Gilliam’s autopsy, [(id., Vol. 13 at 2153)], stated that Gilliam had not been raped.

113. To bolster its claim that Perkins specifically intended to rape and kill Cathy Gilliam, the prosecution argued that it was entitled to present collateral-act evidence showing that Perkins had abducted and raped two other women in the weeks before the abduction of Cathy Gilliam. [(See, e.g., id., Vol. 11, Tab 16 at 1705, 1709.)] Defense counsel argued that the collateral-act evidence was inadmissible because (1) the probative value of the evidence was low in light of substantial differences between the other crimes and the crime involving Cathy Gilliam, [(see, e.g., id. at 1700, 1708, 1710, 1715)], and (2) the prejudicial effect of the evidence substantially outweighed the probative value of the other crimes, [(see, e.g., id. at 1714)], particularly in light of the extensive pretrial media coverage depicting Perkins as a rapist, [(id. at 1706-07)]. Defense counsel moved repeatedly to limit admission of the collateral-act evidence, [(see, e.g., id., Vol. 1 at 177-78; id., Vol. 11, Tab 16 at 1696; id., Vol. 15 at 2500)], but their motions were repeatedly denied by the trial court, [(see, e.g., id., Vol. 1 at 191; id., Vol. 11, Tab 17 at 1715; id., Vol. 15 at 2508)]. As a result, half of the prosecution’s 39 witnesses testified about Perkins’s other alleged crimes or acts. The testimony and physical evidence about the collateral acts, particularly two alleged rapes, pervaded the trial.

114. The admission of collateral-act evidence to prove a disputed issue does not necessarily render a trial fundamentally unfair. See Estelle v. McGuire, 502 U.S. 62, 67-70 (1991). Intent was a disputed issue at Perkins’s trial because there was no evidence that Cathy Gilliam had been sexually abused.^[14] Most of the collateral-act evidence was admitted to address that issue; the prosecution’s theory was that because Perkins had raped two other women he had abducted, he must have intended to rape Cathy Gilliam. (See, e.g., doc. 10, Vol. 11, Tab 16 at 1705.)] However, the evidence actually presented went far beyond serving that narrow purpose, frequently involving graphic testimony irrelevant to the question of intent.

115. The collateral-act evidence is summarized in 12 reported pages of the opinion of the Alabama Court of Criminal Appeals. Perkins v. State, 808 So.2d 1041, 1080-92 (Ala.Crim.App.1999). It included needlessly lurid testimony from alleged victims [D.W.] and [B.P.], much of it calculated to make Perkins appear repulsive. [(See, e.g., doc. 10, Vol. 12 at 1862-1911.)] There was also irrelevant testimony about the practices involved in post-rape medical examinations. Various personnel affiliated with law enforcement agencies testified about investigating the rapes and securing rape evidence. From the Alabama Department of Forensic Science, a serologist testified about performing DNA type matching on samples in the rape kits, [(id., Vol. 14 at 2247-69, 2289-2301)], while a trace-evidence examiner testified about collecting hair and fiber samples from rape kits, [(id. at 2301-08)].

116. In addition to the rape evidence, the prosecution presented other collateral-act evidence. Darlene Hall described an episode involving a man she identified as Perkins attempting to use her telephone shortly before Cathy Gilliam was abducted, [(id., Vol. 11, Tab 19 at 1756-81)], supplemented by testimony of law enforcement personnel. [(See, e.g., id., Vol. 12 at 1978-84.)] And further statements and testimony suggested that Perkins was a thief. [(Id., Vol. 11, Tab 17 at 1727-28; id., Vol. 13 at 2061.)]

117. The prosecution argued from the collateral act evidence at length during the guilt phase. In spite of the defense’s repeatedly expressed concerns about the effects that the collateral-act evidence would have on jurors’ ability to rationally consider the evidence, the prosecution exploited that evidence not to establish intent, but to vilify Perkins based on immaterial and occasionally fraudulent details. The prosecution argued that Perkins “sexually assaulted [D.W.] in almost every orifice she had.” (Id., Vol. 15, Tab 21 at 2628.)] It said, impersonating Perkins, “Gee, whitakers, [D.W.], after it’s all over with, I’ve assaulted you in every orifice, just about other than your nose and your ear, but I didn’t mean to do it, please forgive me.” [(Id. at 2630.)] It emphasized that Perkins had allegedly sexually assaulted “his own cousin.”^[15] [(Id. at 2629.)] It argued that “we know” that Perkins treated women “like sex slaves.” [(Id., Vol. 16, Tab 23 at 2667.)] And it characterized Perkins’s encounter with Darlene Hall as a “date attempt” that he “struck out on, ” arguing that Hall was a third intended rape victim. [(Id., Vol. 15, Tab 21 at 2629.)]^[16]

118. The collateral-act evidence and inflammatory arguments made by the prosecution compounded the effects of prejudicial information that had already saturated the community and reached most jurors. Perkins had been reviled as a rapist in the local media, [(id., Vol. 24, Tab 43 at 52-93)]; even the Governor of Alabama had decried him as a rapist, [(id., Vol. 4 at 238)], and there had been death threats against him and his counsel, [(id. at 238-39)].

119. Though it knew that the collateral-act evidence had pervaded the proceedings as well as the greater community, the trial court gave no limiting instruction prior to the jury’s guilt phase deliberations concerning how the jury should use the collateral-act evidence.

120. After Perkins was convicted, a penalty-phase trial was held before the jury. The prosecution incorporated all of the previous collateral-act evidence into the penalty phase. [(Id., Vol. 17, Tab 28 at 2776.)] As during the prior phase, the trial court gave no instruction limiting what inferences the jury could draw from the evidence.

. . .

135. Evidence of a criminal defendant’s bad character has traditionally been held inadmissible because it may “weigh too much with the jury” and “so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.” Michelson v. United States, 335 U.S. 469, 476 (1948). The risk of harm attendant to character evidence is even greater where the prosecution makes “pronounced and persistent” improper arguments that call attention to the most prejudicial details. Cf. Berger v. United States, 295 U.S. 78, 89 (1935) (“[A prosecutor’s] improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.”). And the risk of harm is at its height where a trial court fails to give a cautionary instruction. Cf. Caldwell v. Mississippi, 472 U.S. 320, 338-39 (1985) (holding prosecutor’s improper argument unconstitutional where trial court “failed to correct the prosecutor’s remarks”).

136. Here, the prosecution’s case against Perkins was weak in several respects. At the guilt phase, the principal evidence supporting the intent elements – intent to rape and intent to kill – was that Cathy Gilliam had yelled “rapist, ” that Perkins had allegedly raped two women, and that Perkins had stipulated that he caused Gilliam’s death. Yet substantial evidence showed that Perkins intended neither to rape nor to kill Gilliam, including the statements of the victim, the actions of Perkins following the shooting, and the changed circumstances between the time of the collateral rapes and the time of the abduction of Gilliam. By portraying Perkins as a bad person, the prosecution encouraged the jury to convict him of capital murder based on irrational reactions instead of the quality or strength of the evidence. At the penalty phase, the prosecution relied on all of the guilt phase evidence, and argued that it was Perkins’s “behavior we’re looking at, ” [(doc. 10, Vol. 18, Tab 34 at 2979)], and that Perkins had “no concept of human decency, ” [(id., Vol. 18 at 2967)].

137. By needlessly presenting the jury with a host of bad conduct allegedly committed by Perkins, and then intensifying the details in their arguments, the prosecution invited jurors to convict Perkins and sentence him to death based on distaste for the State’s portrayal of who Perkins was rather than a rational response to the relevant evidence about the crime and Perkins’s degree of culpability. See Ege v. Yukins, 485 F.3d 364, 377 (6th Cir. 2007)(“If the prosecution felt that the [prejudicial] evidence was so important, it does not take much of a cognitive leap to believe that the jury viewed it as important as well.”). Without a limiting instruction from the trial court to guide the jury’s response to the prosecution’s evidence and arguments, the violation of Perkins’s Eighth and Fourteenth Amendment rights had a substantial and injurious influence on the jury’s verdict. Therefore, Perkins is entitled to relief.

(Doc. 1 ¶¶ 112-20; 135-37 [footnotes added].)

         1. Overlooked Claims or Presumed Ruling on the Merits

         Perkins contends that the Alabama Court of Criminal Appeals “failed to address [his] claim[s] that the unlimited admission of the [collateral-act] evidence” violated his right to due process under the Fourteenth Amendment and his right to a reliable sentence under the Eighth Amendment. (Id. ¶ 122.) Therefore, this court “should review [his] claim[s] de novo because [they were] overlooked by the Alabama Court of Criminal Appeals.” (Id. ¶ 123.)

         With regard to his claim that collateral-acts evidence was improperly admitted, the Alabama Court of Criminal Appeals held that admission of this evidence was not error – “plain or otherwise, ” and it defined “plain error” as “error that is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings.” Perkins, 808 So.2d at 1084-85, 1088, 1092, 1093 (quoting Ex parte Trawick, 698 So.2d 162, 167 (Ala. 1997)). The Alabama Supreme Court has noted that “a review under the plain error rule, which guarantees a defendant a fundamental right to fairness, is tantamount to a due process review.” Pace v. State, 714 So.2d 332, 337 (Ala. 1997)(quoting Ex parte Myers, 699 So.2d 1285, 1296-98 n.4 (Ala. 1997)); see also Thornburg v. Mullin, 422 F.3d 1113, 1125 (10th Cir. 2005)(“We see no practical distinction between the formulations of plain error in Thornburg [v. State, 985 P.2d 1234, 1242 (Okla. Crim. App. 1999), ] and Cleary [v. State, 942 P.2d 736, 752-53 (Okla. Crim. App. 1997), ] and the federal due-process test, which requires reversal when error ‘so infused the trial with unfairness as to deny due process of law, ’ Estelle [v. McGuire], 502 U.S. [62, ] 75 [(1991)]. Because the [Oklahoma Court of Criminal Appeals] applied the same test we apply to determine whether there has been a due-process violation, we must defer to its ruling unless it ‘unreasonably appli[ed]’ that test. 28 U.S.C. § 2254(d).”).

         Nevertheless, the court does not decide whether the Alabama court decided Perkins’s federal constitutional claims on the merits by deciding that the evidentiary rulings were not plain error, because it finds no error based on a de novo review of these claims.

Even if the state court used an incorrect legal standard, [the court] need not determine whether AEDPA’s deferential standard of review, 28 U.S.C. § 2254(d), applies in this situation. Cf. Williams v. Taylor, 529 U.S. 362, 397-398, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). That is because, even if AEDPA deference does not apply, [petitioner] cannot show prejudice under de novo review, the more favorable standard of review for [petitioner]. Courts cannot grant writs of habeas corpus under § 2254 by engaging only in de novo review when it is unclear whether AEDPA deference applies, § 2254(d). In those situations, courts must resolve whether AEDPA deference applies, because if it does, a habeas petitioner may not be entitled to a writ of habeas corpus under § 2254(d). Courts can, however, deny writs of habeas corpus under § 2254 by engaging in de novo review when it is unclear whether AEDPA deference applies, because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review, see § 2254(a).

Berghuis v. Thompkins, 560 U.S. 370, 390 (2010).

         2. Admission of Evidence of Prior Acts and Perkins’s Right to Due Process

         Perkins claims

125. The United States Supreme Court has made clear that state evidentiary rulings must be fundamentally fair to comport with the Due Process Clause. See, e.g., Rochin v. California, 342 U.S. 165, 168-74 (1952). Accordingly, prosecution tactics to make the evidence against a defendant appear more damaging than it actually is can render a trial fundamentally unfair. See, e.g., Napue v. Illinois, 360 U.S. 264, 169 (1959)(“[I]t is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.”); Townsend v. Burke, 334 U.S. 736, 740-41 (1948)(holding defendant was denied due process where he was “sentenced on the basis of assumptions concerning his criminal record which were materially untrue”); cf. Berger v. United States, 295 U.S. 78, 85 (1935)(reversing conviction where prosecutor’s remarks were “calculated to mislead the jury”). See generally Wellons v. Hall, 558 U.S. 220, 220 (2010)(per curiam) (“From beginning to end, judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect.”).

126. Collateral-act evidence “is generally recognized to have potentiality for prejudice” and “is usually excluded” except where the “possibility of prejudice is believed to be outweighed by the validity of the State’s purpose in permitting introduction of the evidence.” Spencer v. Texas, 385 U.S. 554, 560-61 (1967). Where a state proves a legitimate purpose for presenting collateral-act evidence, “defendants’ interests are protected by limiting instructions.” Id. at 561.

127. Though collateral-act evidence is often admissible for limited purposes, a state violates a defendant’s rights where “erroneous admission of evidence makes a petitioner’s trial ‘so fundamentally unfair that the conviction was obtained in violation of the due process clause of the fourteenth amendment.’” Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1355 n.8 (11th Cir. 2005)(quoting Thigpen v. Thigpen, 926 F.2d 1003, 1012 (11th Cir. 1991)); see also Dobbs v. Kemp, 790 F.2d 1499, 1504 (11th Cir. 1986)(recognizing state court evidentiary rulings may render trial fundamentally unfair). Factors that courts consider in determining whether admission of evidence renders a trial fundamentally unfair include whether “the evidence is close, ” the “manner in which the complained of evidence was presented, ” whether “the evidence was highly persuasive, ” whether the evidence “was used in closing argument, ” and “whether the defense was able to effectively counter” the evidence. Maurer v. Dep’t of Corr., 32 F.3d 1286, 1289 (8th Cir. 1994). The ultimate question is whether the erroneous admission of evidence robbed the trial of “the dignity due a rational process.” See Houston v. Estelle, 569 F.2d 372, 383 (5th Cir. 1978).

128. Here, the pervasive testimony about collateral acts denied Perkins’s right to due process of law because the “extraneous considerations render[ed] improbable or impossible an impartial judgment as to guilt.” See Menzies v. Procunier, 743 F.2d 281, 289 (5th Cir. 1984). The permissible use for the two collateral rapes was to show that they occurred, not how they occurred in ways different from the crime at issue or how they were investigated. Therefore, the legitimate purpose for admitting the collateral evidence did not require emphasizing the details.

129. Nevertheless, the prosecution presented the rapes in painstaking detail, scattering references to them throughout the trial and emphasizing the most inflammatory aspects. The prosecution used the irrelevant details throughout its opening statement and closing arguments. The trial court did not even issue a limiting instruction.

130. In addition to the rape testimony, testimony about the alleged encounter between Darlene Hall and Perkins, as well as testimony suggesting that Perkins was a thief, heightened the risk that jurors would find Perkins guilty because they thought he was a bad person who needed to be punished, not because the relevant evidence proved him guilty of capital murder beyond a reasonable doubt. “It is clear that the cumulative effect of the conduct of the state was to arouse prejudice” and that the jury was “inflamed by marginally relevant and irrelevant evidence that was highly prejudicial.” Cf. Walker v. Engle, 703 F.2d 959, 968-69 (6th Cir. 1983). This fundamental unfairness infected both the guilt phase and the penalty phase. Perkins’s conviction and sentence should be vacated. See Id . at 969 (“When a trial court permits the constitutional protections to be overridden by zealous prosecutors without interjecting restraining or curative measures, the federal courts must be alert to act as the district court did here.”).

(Doc. 1 ¶¶ 125-30.)

         “[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62');">502 U.S. 62, 67-68 (1991)(citing 28 U.S.C. § 2241 and Rose v. Hodges, 423 U.S. 19, 21 (1975))(footnote omitted). “In our system of justice, [a] fair trial for persons charged with criminal offenses is secured by the Sixth Amendment, which guarantees to defendants the right to counsel, compulsory process to obtain defense witnesses, and the opportunity to cross-examine witnesses for the prosecution.” Perry v. New Hampshire, 565 U.S. 228, 231-32 (2012). “Those safeguards apart, admission of evidence in state trials is ordinarily governed by state law, and the reliability of relevant testimony typically falls within the province of the jury to determine.” Id. at 232 (emphasis added). Therefore, only when the state court’s ruling with regard to the admission of evidence is alleged to have deprived the petitioner of his right to due process will a federal habeas court consider whether that error was of such magnitude that it denied petitioner’s right to a fundamentally fair trial in violation of the due process clause. See Alderman v. Zant, 22 F.3d 1541, 1555 (11th Cir. 1994)(citing, inter alia, Lisenba v. California, 314 U.S. 219, 228 (1941)). “As applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it [the court] must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.” Lisenba, 314 U.S. at 236-37 (emphasis added).

The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations. The rights to confront and cross-examine witnesses and to call witnesses in one’s own behalf have long been recognized as essential to due process. Mr. Justice Black, writing for the Court in In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948), identified these rights as among the minimum essentials of a fair trial:

‘A person’s right to reasonable notice of a charge against him, and an opportunity to be heard in his defense – a right to his day in court – are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel.’

Chambers v. Mississippi, 410 U.S. 284, 294 (1973). “But apart from trials conducted in violation of express constitutional mandates, a constitutionally unfair trial takes place only where the barriers and safeguards are so relaxed or forgotten that the proceeding is more a spectacle or trial by ordeal than a disciplined contest.” United States v. Augenblick, 393 U.S. 348, 356 (1969)(citing Rideau v. Louisiana, 373 U.S. 723, 726 (1963); and Brown v. Mississippi, 297 U.S. 278, 285 (1936))(internal citations omitted).

         Perkins claims that the admission of collateral-act evidence denied him due process pursuant to the Fourteenth Amendment and a reliable sentence under the Eighth Amendment. He argues:

131. Under the Eighth Amendment, relief is further warranted due to the danger that Perkins’s sentence of death is unreliable. The Eighth Amendment “gives rise to a special ‘need for reliability in the determination that death is the appropriate punishment’ in any capital case.” Johnson v. Mississippi, 486 U.S. 578, 584 (1988)(quoting Gardner v. Florida, 430 U.S. 349, 393-64 (1977)). The United States Supreme Court has repeatedly cautioned that “[c]apital punishment must be limited to those offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution.’” Roper v. Simmons, 543 U.S. 551, 568 (2005) (quoting Atkins v. Virginia, 536 U.S. 304, 319 (2002)). Circumstances that present an undue risk of unreliable or arbitrary imposition of the death penalty - meaning death sentences for those who lack extreme culpability - violate the Eighth Amendment’s proscription against cruel and unusual punishment. See, e.g., id.

132. Admission of irrelevant, inflammatory evidence during the penalty phase of a capital trial is a practice that presents an undue risk of arbitrariness. Booth v. Maryland, 482 U.S. 496, 508-09 (1987), overruled on other grounds by Payne v. Tennessee, 501 U.S. 808, 829 n.2 (1991).^[17] In Booth v. Maryland, a prosecutor presented evidence that members of the victim’s family believed the crime was vicious and did not think that the person who did it could be rehabilitated. Id. at 508. The United States Supreme Court held that “admission of these emotionally charged opinions as to what conclusions the jury should draw from the evidence clearly is inconsistent with the reasoned decisionmaking we require in capital cases.” Id. 508-09. The Supreme Court explained that the evidence was impermissible because it could “serve no other purpose than to inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant.” Id. at 508.

133. As in Booth, there is an intolerable risk here that Perkins was sentenced to death without a rational finding that he was among “the most deserving of execution.” Atkins, 536 U.S. at 319. Because it misled jurors into believing that all of the collateral-act evidence was relevant to punishment, the prosecution’s incorporation of the inflammatory collateral-act evidence into the penalty phase violated the principle that the capital sentencing process “should facilitate the responsible and reliable exercise of sentencing discretion.” Caldwell v. Mississippi, 472 U.S. 320, 329 (1985). Admission of prejudicial, irrelevant evidence without adequate safeguards violates the Eighth Amendment. See, e.g., Johnson, 486 U.S. at 590; Booth, 482 U.S. at 508; cf. Romano v. Oklahoma, 512 U.S. 1, 9 (1994) (holding no Eighth Amendment violation where jury was correctly instructed).

(Doc. 1 ¶¶ 131-33 [footnote added].)

         However, “As [the Supreme Court] held in Romano v. Oklahoma, 512 U.S. 1, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994), it is not the role of the Eighth Amendment to establish a special ‘federal code of evidence’ governing ‘the admissibility of evidence at capital sentencing proceedings.’” Kansas v. Carr, 136 S.Ct. 633, 644 (2016)(quoting Romano, 512 U.S. at 11-12). “Rather, it is the Due Process Clause that wards off the introduction of ‘unduly prejudicial’^[18] evidence that would render the trial fundamentally unfair.” Id. (quoting Payne v. Tennessee, 501 U.S. 808, 825 (1991); citing Brown v. Sanders, 546 U.S. 212, 220-21 (2006))(footnote added; internal quotations omitted). Therefore, Perkins may not challenge the admission of collateral-act evidence at his sentencing proceeding under the Eighth Amendment. “The test prescribed by Romano for a constitutional violation attributable to evidence improperly admitted at a capital-sentencing proceeding is whether the evidence ‘so infected the sentencing proceeding with unfairness as to render the jury’s imposition of the death penalty a denial of due process.’” Id. at 644-45 (quoting Romano, 512 U.S. at 12).

         The issue for this court is whether the admission of the collateral-act evidence – admitted during either the guilt phase, the sentencing phase, or both – violated Perkins’s right to due process by so infecting his ...