# Waldrop v. Thigpen

> District Court, N.D. Alabama · June 9, 1994 · 857 F. Supp. 872

URL: https://www.frixlaw.com/law-library/cases/2008185

## Case

- **Full name:** Billy Wayne WALDROP, Petitioner, v. Morris THIGPEN, Commissioner, Alabama Department of Corrections, Respondent
- **Court:** District Court, N.D. Alabama
- **Decided:** June 9, 1994
- **Citations:** 857 F. Supp. 872; 1994 U.S. Dist. LEXIS 14313; 1994 WL 259275
- **Precedential status:** Published
- **Opinion:** Opinion by Hancock
- **Judges:** Hancock
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2008185

## Opinion text

MEMORANDUM OPINION
HANCOCK, District Judge.
This is an action for habeas corpus relief under 28 U.S.C. § 2254 by an Alabama state prisoner under a sentence of death. With the assistance of counsel, petitioner filed his petition for writ of habeas corpus on September 6, 1990, which was subsequently amended on September 25, 1990, and May 2, 1991.
I. Factual and Procedural Background
In the late-night hours of June 2 or early-morning hours of June 3, 1982, Thurmon Macon Donahoo was robbed, beaten, shot, and his house burned to the ground. His body, charred almost beyond recognition, was found during an investigation of the fire. Suspicion focused almost immediately upon the petitioner, Billy Wayne Waldrop. On July 26,1982, petitioner was arrested in California on a charge of driving under the influence of alcohol. He later waived extradition and was returned to Alabama on the basis of a warrant issued by the Circuit Court of Calhoun County charging him with receipt of stolen property. Despite being extradited on the basis of a Calhoun County warrant, the petitioner was returned to Talladega County on August 19,1982, where he ultimately gave two statements inculpating himself in the Donahoo robbery and murder. On December 17, 1982, petitioner was indicted on six counts of capital murder.
1
He appeared in court on December 21, 1982, and attorneys Hank Fannin and R.D. Pitts were appointed by the court to represent him. On December 29, 1982, he appeared for arraignment and entered a plea of not guilty.
Petitioner’s trial commenced on February 14, 1983, and continued for four days. On February 18, 1983, the jury returned a verdict finding the petitioner guilty of all six counts charged in the indictment. A penalty trial followed immediately and on that same day, February 18,1983, the jury unanimously voted to recommend imposition of the death penalty.
The trial court held its separate sentencing hearing on March 22, 1983, as required by
Alabama Code
§ 13A-5-47. As a result of that hearing, the trial court entered findings of fact with respect both to the petitioner’s guilt and with regard to the death sentence. Referring to the aggravating circumstances defined at
Alabama Code
§ 13A-5-49, the trial court found two that applied:
The defendant was previously convicted of two other felonies involving use or threats of violence to the person, both said felonies being murder in the second degree;
* * * * * *
The capital offense was committed while the defendant was engaged or was an accomplice to the commission of or an at
*888
tempt to commit or flight after committing or attempting to commit robbery and burglary.
(See Trial Record, Vol. I,
p. 73). Furthermore, the trial court found no mitigating circumstances, either those defined by statute or otherwise.
(See Id.,
at 74). Oral notice of appeal was entered by petitioner’s attorneys at the close of the hearing.
Petitioner was once again represented by Fannin and Pitts on direct appeal. In the brief filed on July 6, 1983, petitioner and counsel raised three claims:
1. Did the trial court commit reversible error in not honoring defendant’s motion for commitment to a mental institution for examination?
2. Did the trial court commit reversible error in denying defendant’s motion for change of venue?
3. Did the trial court commit reversible error by allowing the alleged confessions of defendant into evidence?
(See Tab R-29).
Issues one and two each merited only one page of argument in petitioner’s brief, while ground three received slightly less than two and one-half pages of argument. No cases were cited in any of the arguments. Later, an amended brief was filed in which one additional paragraph was argued with respect to the voluntariness of petitioner’s confessions, and a fourth claim of error was raised. The fourth claim was “Did the trial court commit reversible error by allowing prejudicial and inflammatory remarks against the defendant by the State in closing arguments?” The entire argument offered in support of that claim was as follows:
The trial court allowed the district attorney to call the defendant a “murderer” and a “robber” (R-550) on more than one occasion during his closing argument and further stating words to the jury to this effect, “Billy Wayne Waldrop and his partners in crime had no more regard for human life than you and I for a fly we swatted.” (R-556).
The Alabama Court of Criminal Appeals rejected each of these assignments of error. Moreover, the court explained:
In accordance with Section 13A-15-53,
Code of Alabama (1975),
we have reviewed the sentence proceedings in this case and find no error.
Additionally, the trial court’s findings concerning the aggravating and mitigating circumstances are supported by the evidence. After considering each of the-aggravating and mitigating circumstances set out in the statute, the court found that Waldrop and his accomplices entered the victim’s home, robbed him, killed him, and then burned his house and body. The court also found that Waldrop had committed two prior murders. No evidence of any mitigating circumstances was introduced.
This court further finds that the sentences were not imposed under the influence of passion, prejudice, or any other arbitrary factor. An independent weighing of the aggravating and mitigating circumstances by this court indicates that death was the proper sentence in this case. Finally, the sentence of death is not excessive or disproportionate to the penalty imposed in similar cases.
Beck v. State,
396 So.2d 645 (Ala.1980).
We have searched the record and have found no error prejudicial to the substantial rights of Waldrop. The judgment of the circuit court is affirmed.
Waldrop v. State,
459 So.2d 953, 956 (Ala. Crim.App.1983). Rehearing was denied by the Court of Criminal Appeals on January 10, 1984.
To prosecute petitioner’s further appeal to the Alabama Supreme Court, required by Rule 39(c) of the
Alabama Rules of Appellate Procedure,
Dennis N. Balske was appointed, and he filed a petition for writ of certiorari on April 5, 1984. In a brief filed with the petition for writ of certiorari, two issues were raised:
1. Defendant was deprived of his constitutional right to a fundamentally fair trial when the prosecution urged the jury to convict him and sentence him to death for improper and irrelevant reasons.
2. That feature of the Alabama capital sentencing scheme which requires trial
*889
judges to determine the appropriate sentence and allows them to reject a jury recommendation of life without parole violates rights guaranteed defendant both under the Alabama and United States Constitutions.
(See Tab R-33).
In support of the first argument, petitioner asserted that the closing arguments of the prosecutor during both the guilt and penalty phases of the trial were improper and denied him fundamental fairness by (1) vouching for the credibility of the witnesses, (2) exhorting the jury to join the war against crime, (3) including a patriotic pitch for the protection of society, (4) calling for the jury to rely on the district attorney, and (5) offering extrinsic or unproven factors. On September 28, 1984, the Alabama Supreme Court rejected each of these arguments and affirmed the conviction and sentence.
See Ex parte Waldrop,
459 So.2d 959 (Ala.1984). Re-hearing was denied on November 9, 1984.
In February of 1985
2
a petition for writ of certiorari to the Alabama Supreme Court was filed in the United States Supreme Court, but denied on April 15, 1985.
Within two months after the denial of a petition for writ of certiorari by the United States Supreme Court, petitioner filed his state petition for writ of error coram nobis in the Circuit Court of Talladega County on June 4, 1985. This petition was filed with the assistance of Attorney Dennis Sweet. Petitioner asserted four broad claims for relief, several of which included multiple sub-claims.
Under his first claim for coram nobis relief, ineffective assistance of trial and appellate counsel, petitioner alleged the following:
1. Trial counsel failed to investigate, prepare, and present mitigating evidence at the sentencing phase of petitioner’s trial.
2. Trial counsel failed to move the court for appointment of an independent defense psychiatric or psychological expert.
8. Trial counsel failed to move to suppress petitioner’s inculpatory statements obtained in violation of his Fourth, Fifth, Sixth, and Fourteenth Amendment rights.
4. Trial counsel failed to file pretrial motions:
a. to challenge the removal of prospective jurors opposed to the death penalty.
b. to attack the death penalty as applied in Alabama because it is arbitrary, capricious, and applied in a discriminatory fashion with respect to the race of the victim.
e. to suppress the pretrial statements of the petitioner, and
d. to seek an individual sequestered voir dire of the jury venire.
5. Trial counsel failed to preserve several errors at trial for issues on appeal, including:
a. hearsay testimony offered by witness Hugh Whistenant.
b. improper impeachment by the prosecution of its own witness, Milton Gaither, with respect to the witness’s prior felony convictions.
Ground number two in petitioner’s coram nobis petition attacked the admission into evidence of his inculpatory, pretrial statements. He asserted that his lengthy detention in the Talladega County Jail without the appointment of counsel violated his Fourth, Sixth, and Fourteenth Amendment rights, tainting the two pretrial confessions he gave.
Claim three alleged in the coram nobis petition asserted that the removal of two prospective jurors, Melissa Britt and Willie Best, because of their opposition to the death penalty, violated the petitioner’s Sixth and Fourteenth Amendment rights to a fair and impartial jury composed of a cross-section of the community.
Finally, coram nobis-elaim four alleged that the Alabama death penalty was applied
*890
in a raciaUy-discriminatory fashion, more frequently resulting in the imposition of a death sentence when the victim of the killing was white. At paragraph 42 of the petition, petitioner alleged “Sociological and statistical studies produced by Dr. Bernie Bray of Tal-ladega College conclude that defendants accused of killing white victims are considerably more likely to receive death than those who kill blacks.”
(See Tab R-41,
p. 17).
In its answer, the respondent State of Alabama expressly asserted that claims two, three, and four were barred from review in coram nobis either because they were raised and rejected on direct appeal or were available but not raised on direct appeal.
(See Tab A-42).
The trial court conducted a full evidentiary hearing on the petition for writ of error coram nobis on April 3, 1986. Fourteen witnesses testified and the transcript of the hearing covers some 444 pages. On July 28, 1986, the trial judge filed his 52-page memorandum opinion and final judgment denying eoram nobis relief. All but three pages of that opinion dealt with petitioner’s claims relating to ineffective assistance of counsel. In the final pages of the opinion, the trial court concluded that claim two for coram nobis relief was barred from review “because it was raised on direct appeal.” Similarly, claims three and four were rejected because they “could have been raised at trial and on direct appeal but [were] not.” The trial court explained that coram nobis cannot serve as a substitute for direct appeal and does not lie to review claims that could have been raised at trial and on direct appeal.
(See Tab R-43, pp.
50-51). On September 5, 1986, petitioner filed his timely notice of appeal from denial of coram nobis.
Represented on appeal by Attorney Daniel R. Farnell, Jr., petitioner appealed all four general claims for coram nobis relief asserted in the Circuit Court of Talladega County. Although petitioner’s brief expressly reincorporated all of the alleged errors of counsel set out in the original coram nobis petition, the principal focus of the argument in the brief was on counsel’s failure to present mitigating evidence during the penalty phase of trial. As to claim two, the appellate brief argued violations of the Fourth, Fifth, Sixth, and Fourteenth Amendment rights of the petitioner.
On April 28, 1987, the Alabama Court of Criminal Appeals affirmed the denial of co-ram nobis relief in
Waldrop v. State,
523 So.2d 475 (Ala.Crim.App.1987)
{See Tab R-
53). In doing so, the appellate court adopted the findings of fact made by the coram nobis court with respect to petitioner’s claim of ineffective assistance. Furthermore, the court rejected on the merits each of petitioner’s claims that the admission of his confessions violated the Fourth, Fifth, Sixth, and Fourteenth Amendments. The court also concluded that petitioner’s counsel was not ineffective because he failed to move for a pretrial hearing to suppress the confessions. Finally, the court also concluded that petitioner’s counsel was not constitutionally ineffective because he failed to challenge the exclusion of death-qualified jurors and failed to challenge the allegedly discriminatory application of the death penalty to defendants accused of killing whites.
3
The Court of Criminal Appeals denied re-hearing on March 8, 1988, and the Alabama Supreme Court denied a petition for writ of certiorari on April 22, 1988.
4
(See Tab R-53).
A
*891
petition for writ of certiorari filed in the United States Supreme Court also was denied on October 3, 1988.
See Waldrop v. Alabama,
488 U.S. 871 , 109 S.Ct. 184 , 102 L.Ed.2d 154 (1988).
Shortly after the denial of certiorari by the United States Supreme Court, the cycle of state collateral review began again. A petition pursuant to Rule 20 of the Alabama (Temporary) Rules of Criminal Procedure, seeking to vacate and set aside the conviction and death sentence, was filed in the Tallade-ga County Circuit Court on November 18, 1988. Petitioner was assisted by Attorneys L. Dan Turberville and James M. Wooten. Under three broad categories, petitioner asserted claims for relief based on ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and ineffective assistance of coram nobis counsel. Under the rubric of ineffective assistance of trial counsel, petitioner alleged the following deficiencies:
1. Trial counsel failed to adequately investigate petitioner’s mental, emotional, and psychological background in order to prepare and present mitigating evidence at trial and at the sentencing phase of the trial.
2. Trial counsel failed to seek an independent psychological or psychiatric examination of the petitioner.
3. Trial counsel failed to move to suppress the inculpatory statements obtained from the petitioner in violation of his Sixth and Fourteenth Amendment rights.
4. Trial counsel failed to object to the trial court’s striking of prospective jurors because of their opposition to the death penalty.
5. Trial counsel failed to challenge the application of the Alabama death penalty because it is imposed in a fashion that discriminates on the basis of the race of the victim.
6. Trial counsel failed to object to hearsay testimony offered at trial.
7. Trial counsel failed to effectively and adequately impeach the criminal background of a material witness.
8.Trial counsel failed to seek sequestration of the jury.
Petitioner also alleged ineffective assistance of counsel because (1) his attorney on direct appeal failed to cite any authority to support the merits of the petitioner’s brief, and (2) appellate counsel failed to preserve and present as issues on appeal all of the claims asserted in the context of ineffective assistance of trial counsel. Finally, the petitioner also asserted that his coram nobis counsel was ineffective.
(See Tab R-54).
In an order entered August 4, 1989, the Circuit Court of Talladega County denied Rule 20 relief. As to the first seven allegations of ineffective assistance of trial counsel, the court found that they had been raised in the petition for error coram nobis and, therefore, the Rule 20 petition was successive as to these grounds. The court specifically cited Rule 20.2(b) and Rule 20.2(a)(4) as grounds for denying review of the merits of these claims. Similarly, citing Rule 20.2(b), the court concluded that the eighth specification of ineffective assistance of trial counsel could have been asserted in the petition for writ of error coram nobis and, because it was not, was barred from review in the Rule 20 action.
As to petitioner’s allegations of ineffective assistance of appellate counsel, the court again cited Rule 20.2(b) to deny review. The court concluded that these claims “were known or could have been known at the time the first petition was heard” and, therefore, were barred from review in this action. Finally, the court also denied petitioner’s claim of ineffective assistance of coram nobis counsel, citing
Pennsylvania v. Finley,
481 U.S. 551 , 107 S.Ct. 1990 , 95 L.Ed.2d 539 (1987), for the proposition that there is no Sixth Amendment right to the assistance of counsel in collateral proceedings.
The petitioner immediately filed his notice of appeal on August 23, 1989, but the Alabama Court of Criminal Appeals affirmed the denial of Rule 20 relief without a published opinion on January 19,1990.
See Waldrop v. State,
564 So.2d 115 (Ala.Crim.App.1990) (Table). That court denied re-hearing on February 23, 1990, and there is no indication
*892
in the record that petitioner sought certiorari either to the Alabama Supreme Court or the United States Supreme Court. The instant habeas corpus petition, petitioner’s first, was filed in this court on September 6, 1990.
II. Issues
Without identifying all the various sub-issues asserted, petitioner seeks habeas corpus relief under § 2254 on the basis of seven major claims. Under claim one, petitioner avers that his Fourth, Fifth, Sixth, and Fourteenth Amendment rights were violated when an inculpatory, pretrial statement he made was introduced into evidence at trial. He argues that these confessions violated the Fourth Amendment because he was held and isolated in Talladega County without being presented to a judicial officer for a period of four months after his return to Alabama. During that time, he also asserts that his Sixth Amendment right to the assistance of counsel was violated and that he was pressured, duped, and induced into waiving his Fifth Amendment privilege against self-incrimination.
Habeas claim two involves an assortment of allegations of ineffective assistance of trial and appellate counsel. The particular errors of counsel alleged in the petition are discussed more thoroughly in Section III below.
He alleges at habeas claim three that he was denied the appointment of a defense psychiatric or psychological expert to assist in the preparation and presentation of his defense. Prosecutorial misconduct is the subject of petitioner’s fourth claim for habeas relief, focusing upon various remarks made by the prosecutor during his closing arguments at trial. Claim five alleges that hearsay evidence was included in a presentenee report considered by the sentencing judge, which deprived the petitioner of his right to confront and cross-examine his accusers.
In the first of two amendments to the petition, petitioner added claim six on September 25, 1990. It asserted that one of the aggravating factors found by the trial court to exist and to justify the imposition of the death penalty was itself invalid. Specifically, he claimed that his two prior murder convictions, which were found to be an aggravating factor, were themselves invalid because they were based upon involuntary guilty pleas entered by the petitioner. Claim seven was added in the second amended petition on May 2, 1991, and it asserts that the trial court’s oral instructions to the jury on the definition of “reasonable doubt” violated due process because reasonable doubt was equated with an “actual and substantial doubt.”
In its responses to the petition, the State asserts that a number of these claims and issues are procedurally barred from review on the merits. The State identifies in particular claims three, four, five, six, and seven as being subject to one or more forms of procedural default. Furthermore, the State contends that several specific allegations of ineffective assistance of counsel are also procedurally barred inasmuch as those specific assignments of attorney error were not previously argued or presented in an appropriate state proceeding.
III. Illegally Obtained Confession
During the time the Petitioner was held in the Talladega County Jail, he made two in-culpatory statements to law enforcement officers in which he confessed to participating in the robbery and murder of Macon Donahoo. The first statement was on September 15, 1982, and the second on October 18, 1982. Petitioner challenges the validity of his conviction based on the admission at trial of the October 18, 1982, confession which petitioner claims was elicited from him in violation of his Fourth, Fifth, Sixth, and Fourteenth Amendment rights.
5
Specifically, Petitioner alleges that his four-month detention in the Talladega County Jail without probable cause and without presentation to a judicial officer violated his Fourth Amendment protection against unlawful seizures so that statements made by the petitioner during that time were tainted by the illegal detention and, thereby, inadmissible.
6
Further, he alleges that al
*893
though he was advised of his
Miranda
rights, he was pressured into waiving his Fifth Amendment privilege against self-incrimination. Petitioner further argues that his Sixth Amendment right to counsel had attached prior to the time the statements were procured and that any interrogation in the absence of counsel violated his Sixth Amendment rights.
A Fifth Amendment
Petitioner alleges that his conviction violated due process of law because it was based in part on a confession taken from him in violation of his Fifth Amendment privilege against self-incrimination. The tenor of Petitioner’s Fifth Amendment claim has changed over the course of his trial, appellate and collateral proceedings. At trial and on direct appeal, Petitioner raised a Fifth Amendment claim based on the inadequacy of the
Miranda
warnings given to him immediately prior to custodial interrogation and because inducements were offered by the Talladega County officials.
7
In his petition for writ of error coram nobis filed with the Circuit Court of Talladega County, petitioner raised no independent Fifth Amendment claim. In the instant action, he supplements his original claim by arguing that his Fifth Amendment right to counsel was invoked at his arraignment in California on the offense of driving while intoxicated, which prohibited the subsequent initiation of interrogation by police officers regarding
any
crime.
8
See Petitioner’s Memorandum of Law in Opposition to Respondent’s Motion for Summary Judgment and In Support of Petitioner’s Motion for Summary Judgment
at p. 14.
(1) Adequacy of Miranda Warnings and Voluntariness of Confession
A confession is not admissible unless it is both voluntarily given and, if made by one in custody, preceded by the prophylactic warnings set out in
Miranda v. Arizona,
384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966).
See, e.g., Maine v. Moulton,
474 U.S. 159 , 106 S.Ct. 477 , 88 L.Ed.2d 481 (1985);
Michigan v. Tucker,
417 U.S. 433 , 94 S.Ct. 2357 , 41 L.Ed.2d 182 (1974). While the ultimate question of the voluntariness of a confession is a matter for independent review by the federal habeas court, the subsidiary and historical facts found by the state trial court are presumed correct under 28 U.S.C. § 2254 (d).
See Miller v. Fenton,
474 U.S. 104 , 106 S.Ct. 445 , 88 L.Ed.2d 405 (1985). The federal habeas court must apply the presumption of correctness to the state court’s findings of fact unless one of the exceptions enumerated in § 2254(d) applies.
9
As the U.S. Supreme Court explained:
Of course, subsidiary questions, such as the length and circumstances of the interrogation, the defendant’s prior experience
*894
with the legal process, and familiarity with the
Miranda
warnings, often require the resolution of conflicting testimony of police and defendant. The law is therefore clear that state-court findings on such matters are conclusive on the habeas court if fairly supported in the record and if the other circumstances enumerated in § 2254(d) are inapplicable. But once such underlying factual issues have been resolved, and the moment comes for determining whether, under the totality of the circumstances, the confession was obtained in a manner consistent with the Constitution, the state-court judge is not in an appreciably better position than the federal habeas court to make that determination.
Miller v. Fenton,
474 U.S. 104, 117 , 106 S.Ct. 445, 453 , 88 L.Ed.2d 405, 415 (1985). None of the exceptions to the presumption of correctness applies here.
The Circuit Court of Talladega County conducted at least two separate evidentia-ry hearings on this issue. At trial, upon petitioner’s oral motion to suppress, the court conducted an evidentiary hearing outside the presence of the jury on the admissibility of the October 18, 1982, statement. The court concluded that the confession was given voluntarily and not in violation of petitioner’s constitutional rights.
(See
Tab R-ll,
Trial Transcript
at 459). During the hearing, the
court
heard testimony from several Talladega County officials and from Petitioner. Detective Dennis Surrett of the Tallade-ga County Sheriffs Department testified that he advised the Petitioner of his
Miranda
rights before the petitioner made his statement on October 18, 1982, as follows:
You have the right to talk to a lawyer and have him present with you while you are being questioned. If you want a lawyer and cannot afford one, the court will appoint one for you. You have the right to remain silent. Anything you say, can, and will be used against you in a court of law.
Trial Transcript
at p. 362.
10
When asked if he understood each of these rights, the Petitioner replied that he did. When asked if, having these rights in mind, Petitioner wished to talk to the authorities, petitioner replied that he did. Surrett further testified that no threats or promises were made to induce petitioner’s statement. After some discussion, a tape recording of petitioner’s October 18, 1982, statement was played for the court, which included a recording of Sur-rett administering the
Miranda
warnings and petitioner’s oral waiver. Detective Sur-rett testified that although the Petitioner had asked for a “lie detector test,” neither he nor anyone in his presence told him that the purpose of the statement was to prepare him for a polygraph examination. As to the suspension of petitioner’s visitation privileges, Sheriff Studdard testified that these privileges were suspended when weapons were found on persons attempting to visit the Petitioner at the jail.
The court then heard testimony from the Petitioner, Billy Wayne Waldrop. Waldrop testified that his rights were read to him on only two occasions: once before the September 15, 1982, statement and the day before the polygraph examination, which was October 18,1982. He said that Detective Surrett advised him that the recorded statement was needed in connection with a polygraph test to be taken the next day. Additionally, Wal-drop stated that Sheriff Studdard told him that he would have no more visitor or telephone privileges until he “came straight,” which Sheriff Studdard denied. When Wal-drop denied that he understood the meaning of the
Miranda
warnings, District Attorney Robert Rumsey recounted as many as nine prior occasions when petitioner had been charged with a crime and his rights had been read to him, indicating petitioner’s familiarity with the rights warning. Detective Surrett testified that Petitioner remarked to District Attorney Rumsey on September 15, 1982, after being read a five-point warning, that he knew the rights better than the officers did. He further stated that “he didn’t have a
*895
lawyer and didn’t want a lawyer.”
Trial Transcript
at 421. According to Detective Surrett, at no time did the Petitioner request to have an attorney present before speaking to the officials.
After hearing the above testimony at the suppression hearing, the trial judge denied the motion to suppress the confession. Plainly implicit in this conclusion are the findings that petitioner was not pressured, tricked, or induced into making the statement, and that he did not request the assistance of an attorney prior to his interrogation. If the trial court had believed the petitioner’s testimony, it could not have denied the motion to suppress the confession. Though the state trial court did not make its findings explicitly, this court may reconstruct those findings “either because [the state trial judge’s] view of the facts is plain from his opinion, or because of other indicia.”
Townsend v. Sain,
372 U.S. 293, 314 , 83 S.Ct. 745, 758 , 9 L.Ed.2d 770 (1962). By admitting the confession into evidence, the court clearly demonstrated that it believed the testimony of the Talladega officials over the testimony of the Petitioner.
See Thompson v. Linn,
583 F.2d 739 (5th Cir.1978).
There was also extensive testimony taken by the trial court during the hearing on petitioner’s error coram nobis petition.
11
The trial court noted that the petitioner’s testimony was largely the same as his testimony at the suppression hearing, with the addition of allegations that he made the September 15,1982, statement so that his conjugal visits would be restored, and that he requested a lawyer before the September 15, 1982, statement. Again, Sheriff Studdard, Detective Surrett, and Detective Hurst testified at the hearing, along with District Attorney Robert Rumsey. Studdard testified that he never allowed petitioner to receive eonju-gal visits in the Talladega County Jail, that he never told petitioner that such visitation privileges would be suspended unless he confessed, and that Petitioner never requested an attorney in his presence. District Attorney Rumsey testified the Petitioner never requested an attorney in his presence and that he never had the Petitioner’s visitation, conjugal or otherwise, stopped as a part of an attempt to elicit a confession. Detective Sur-rett testified that the Petitioner never requested an attorney in his presence and that the Petitioner was not promised leniency in exchange for his confession. Detective Hurst testified that the Petitioner never requested an attorney in his presence, that the Petitioner was not promised leniency in exchange for his confession, and that he never •told the Petitioner that his visits would be stopped until he confessed. The court expressly found the testimony of Studdard, Rumsey, Surrett, and Hurst to be credible and found the testimony of the petitioner not to be credible.
12
From a review of the transcripts of both hearings, the court concludes that both the explicit and implicit findings of fact made by the state court are fully supported by the record. It shows that petitioner was properly advised of the
Miranda
warnings prior to the September 15 and October 18 statements. He was also “Mirandized” on at least seven other occasions. Both four-point and five-point warnings were given to the petitioner. It should be noted here that the
Miranda
warnings are not themselves constitutional rights protected by the Fifth Amendment; rather, they are prophylactic measures established by the Supreme Court to insure that the Fifth Amendment right against self-incrimination is protected.
Duckworth v. Eagan,
492 U.S. 195 , 109 S.Ct. 2875 , 106 L.Ed.2d 166 (1989). There is no talismanic incantation required to satisfy the strictures” of
Miranda. Id.
(quoting
California v. Prysock,
453 U.S. 355 , 101 S.Ct. 2806 , 69 L.Ed.2d 696 (1981)). As long as the
*896
warnings reasonably convey the requirements of
Miranda ,
the reviewing court need not concern itself with the precise formulation of the warnings.
Id.
Accordingly, the court concludes that the requirements of
Miranda
were satisfied.
The state court’s factual findings must also be considered in determining whether the confession was voluntary. In analyzing the voluntariness of a confession, the federal habeas court must make an independent examination of the totality of the circumstances surrounding the confession.
Schneckloth v. Bustamonte,
412 U.S. 218, 226 , 93 S.Ct. 2041, 2047 , 36 L.Ed.2d 854 (1973). The standard for making this evaluation is whether the accused made “an independent and informed choice of his own free will, possessing the capacity to do so, his will not being overborne by the pressures and circumstances swirling around him.”
United States v. Rouco,
765 F.2d 983, 993 (11th Cir.1985) (quoting
Jurek v. Estelle,
623 F.2d 929 (5th Cir.1980)). The confession must be a product of the accused’s free and deliberate choice rather than the product of coercion, intimidation, or deception by the police.
United States v. Mendoza-Cecilia,
963 F.2d 1467, 1475 (11th Cir.1992). Factors relevant to the inquiry include the accused’s intelligence, the length of detention, the nature of interrogation, use of physical force, and promises or inducements.
See Colorado v. Connelly,
479 U.S. 157 , 163 n. 1, 107 S.Ct. 515 , 520 n. 1, 93 L.Ed.2d 473 , 482 n. 1 (1986);
Campaneria v. Reid,
891 F.2d 1014 (2d Cir. 1989). Each of these factors, along with other surrounding circumstances, combine to determine the crucial question — was there any “overreaching” on the part of the police.
Colorado v. Connelly,
479 U.S. at 163 , 107 S.Ct. at 520 .
The Talladega police first interrogated the petitioner about the Donahoo murder on August 4,1982, after his arrest in California. Following a lengthy extradition process, his detention in the Talladega County Jail commenced on August 19, 1982. However, he was not detained for the sole purpose of questioning him as a murder suspect; he was jailed on a pending receiving stolen property charge in Calhoun County, Alabama. Moreover, the petitioner preferred confinement in the Talladega County Jail to be near his family and to attempt to control the investigation. On occasion, he would request to speak to the Talladega detectives about the investigation. The petitioner alleges that he was interrogated ten times prior to his September 15, 1982, statement. However, there is nothing in the record to indicate that any single session was exhaustingly lengthy. There is no evidence that the police used any physical force against the petitioner or that they threatened or harassed him in any way. The trial court found that the statements were not conditioned upon the granting of conjugal visits or the taking of a polygraph examination, and this finding is supported by the evidence. As to the petitioner’s intelligence, there is no evidence which suggests that he was unable to comprehend the
Miranda
warnings or the consequences of his waiver of those rights. He stated to the police that he understood the rights better than they did and his past criminal history evinces his familiarity the warnings and the legal system in general. As to his diminished mental capacity resulting from prior brain surgery, there is no evidence in the record, from either the suppression hearing or coram nobis hearing, which suggests that the petitioner suffered any mental disability. By allowing the statement to be admitted into evidence, the trial court found implicitly that the petitioner was mentally capable of understanding his rights. Additionally, the petitioner’s neurosurgeon, Dr. Zeiger, testified by deposition in the coram nobis proceeding that the petitioner suffered no permanent disability or diminished capacity from the surgery.
See Waldrop v. State,
523 So.2d 475, 484 (Ala.Crim.App.1987).
After a review of the evidence, it appears that the custodial interrogation of the petitioner was free of coercion, intimidation and deception. There is no indication that the petitioner’s ability to resist had been overborne by any misconduct or overreaching on the part of the police. Accordingly, the court concludes that the totality of circumstances demonstrates that the confessions given by
*897
the petitioner on September 15, 1982, and October 15, 1982, were voluntary.
13
(2) Request For Counsel In California
Petitioner claims that his representation by the Public Defender’s Office at his extradition hearing in California triggered his Fifth Amendment right to counsel and that any subsequent statement elicited by police outside the presence of his counsel was unconstitutionally obtained and inadmissible. In support of this allegation, petitioner relies on the rule established in
Arizona v. Roberson,
486 U.S. 675 , 108 S.Ct. 2093 , 100 L.Ed.2d 704 (1988), that police may not initiate interrogation of a suspect as to a second, unrelated crime without providing counsel when the suspect has previously requested counsel during interrogation regarding a different crime.
The petitioner advances this argument for the first time in this action. In support of this argument, the affidavit of James Dorr, a former deputy public defender in San Ber-nardino County, California, was submitted along with copies of documents from the public defender’s file on the petitioner. This argument and the supporting documents were not presented at trial, on direct appeal, or on collateral review. To the contrary, his petition for writ of error coram nobis states that no attorney was appointed for the petitioner in California.
See
Tab R-41 p. 3. Although petitioner raised a Fifth Amendment challenge to the admissibility of his confession at trial and on appeal, the factual elements and legal theory he now advances relating to representation in California were never presented to the state courts.
To satisfy the exhaustion requirement, a habeas petitioner must have “fairly presented” the federal claim to the state courts.
Picard v. Connor,
404 U.S. 270, 275 , 92 S.Ct. 509, 512 , 30 L.Ed.2d 438, 443 (1971). A claim is not “fairly presented” unless
all
of the essential factual elements
and
the same legal theories are raised in state court, giving the state court an opportunity to apply the controlling legal principles to the facts.
Id.; see Bunch v. Thompson,
949 F.2d 1354 (4th Cir.1991) (additional claims of ineffective assistance of counsel procedurally barred; also, fifth amendment “right to remain silent claim” procedurally barred when fifth amendment “right to counsel claim” allowed). Although this particular Fifth Amendment theory appears to be unexhausted, dismissal to allow the petitioner to exhaust this claim would be futile. Because the claim has never been presented to a state court, the question becomes whether there now is a state remedy available to him.
See Collier v. Jones,
910 F.2d 770 (11th Cir.1990). The collateral attack ordinarily available under Rule 32 of the Alabama Rules of Criminal Procedure is barred because more than two years has elapsed since petitioner’s conviction became final.
See Ala.R.Crim.P.
32.2(c). Because this state remedy is procedurally barred by the time limitation, habeas relief also is procedurally barred.
Collier v. Jones,
910 F.2d 770 (11th Cir.1990);
Burger v. Zant,
984 F.2d 1129 (11th Cir.1993).
If a petitioner has procedurally defaulted on a constitutional claim, he is barred from litigating that claim in a federal habeas corpus proceeding unless he can show
both
cause for and actual prejudice from the default.
Engle v. Isaac,
456 U.S. 107 , 102 S.Ct. 1558 , 71 L.Ed.2d 783 (1982);
Wainwright v. Sykes,
433 U.S. 72 , 97 S.Ct. 2497 , 53 L.Ed.2d
*898
594 (1977). The petitioner cannot show prejudice because the claim fails on its merits.
14
First, the rule established in
Arizona v. Roberson, supra,
is not retroactively available to support the petitioner’s habeas corpus petition.
Butler v. McKellar,
494 U.S. 407 , 110 S.Ct. 1212 , 108 L.Ed.2d 347 (1990).
15
Prior to
Roberson ,
an invocation of the Fifth Amendment right to counsel was offense-specific, i.e., it did not extend to investigations of crimes unrelated to the one for which the suspect was originally held. Therefore, had petitioner invoked his Fifth Amendment right to counsel with respect to either the California DUI charge or the Calhoun County charge of receiving stolen property, the interrogation by the Talladega officials regarding the murder was not contrary to established law at the time.
Second, petitioner’s argument does not fall within the rule of
Roberson
or its progeny because the petitioner never invoked his Fifth Amendment rights. The Fifth Amendment privilege against self-incrimination must be asserted or claimed; it is not self-executing.
United States v. Monia,
317 U.S. 424 , 63 S.Ct. 409 , 87 L.Ed. 376 (1943). Unless the privilege is expressly invoked, the witness cannot be said to have been “compelled” to testify against himself within the meaning of the Fifth Amendment.
Id.
There must be some expression of a desire to deal with the police only through counsel.
Collins v. Francis,
728 F.2d 1322, 1332 (11th Cir.1984). The appointment of counsel at an arraignment or, as in the instant case an extradition hearing, does not invoke the
Miranda/Edwards
Fifth Amendment right to counsel.
Id.
A simple request for representation at a judicial proceeding does not by itself trigger the Fifth Amendment privilege. Rather, it indicates a desire for counsel under the Sixth Amendment.
Id.
at 1333 .
There is no evidence here that the petitioner indicated in any manner that he wished to invoke his Fifth Amendment privilege in California by requesting counsel prior to interrogation. While a public defender did appear in petitioner’s behalf at the extradition hearing, there is nothing in the record which indicates that the petitioner expressly requested counsel in California. The affidavit of indigency attached as Exhibit D-2 to James Dorr’s affidavit is not signed by the petitioner. Indeed, the petitioner testified that he did not request counsel until he was in the Talladega County Jail. Even so, had he requested the presence of the public defender at the extradition hearing, this representation would only implicate petitioner’s Sixth Amendment rights in connection with the receiving stolen property charge on which he was extradited to Alabama. Consequently, the petitioner’s Fifth Amendment claim based on his request for counsel in California is without merit.
B. Procedural Default on kth and 6th Amendment Claims
The only claim concerning the admissibility of petitioner's confession presented at trial and on direct appeal was based on the alleged violation of his rights and privileges protected by the Fifth Amendment. No independent Fourth or Sixth Amendment claims were argued to or discussed by the Alabama Court of Criminal Appeals in its decision on the appeal of petitioner’s conviction.
See Waldrop v. State,
459 So.2d 953 (Ala.Crim.App.1983).
The Petitioner raised independent Fourth and Sixth Amendment claims in his petition for writ of error eoram nobis filed with the trial court. However, the Alabama Court of Criminal Appeals erroneously declared these claims barred from collateral review because they were previously raised and decided on direct appeal.
Waldrop v. State,
523 So.2d 475, 496 (Ala.Crim.App.1987). When the petitioner appealed the
*899
denial of the error eoram nobis petition, he abandoned the independent Fourth and Sixth Amendment claims. Thereafter, the claims were presented as ineffective assistance of counsel claims in violation of the Sixth Amendment right to the assistance of counsel.
16
The procedural ground upon which the appellate court denied review was incorrect in that the Fourth and Sixth Amendment claims were
not
raised on direct appeal. The only challenge made to the admissibility of the confession on direct appeal was based on the Fifth Amendment. The court was correct, however, in refusing to review the claims, but for the wrong reason. The court should have denied review because the claims could have been raised at trial and on direct appeal, but were not.
See Magwood v. Smith
791 F.2d 1438, 1444 (11th Cir.1986). For the purposes of this action, either holding constitutes a procedural default which precludes review by a federal habeas court.
See Harris v. Reed,
489 U.S. 255 , 109 S.Ct. 1038 , 103 L.Ed.2d 308 (1989) (last state court expressly states its judgment rests on a state procedural ground);
Collier v. Jones,
910 F.2d 770 (11th Cir.1990) (claim never presented to state court);
Burger v. Zant,
984 F.2d 1129 (11th Cir.1993).
Additionally,
Collier v. Jones
teaches that the claims have been procedurally defaulted. The Fourth and Sixth Amendment challenges to the confession, in fact, were presented to the coram nobis court and denied. Petitioner then abandoned the claims on appeal from denial of coram nobis, making them comparable to unexhausted claims never presented to any state court.
See Collier v. Jones, supra; Burger v. Zant, supra.
Because the two-year limitation set forth in Alabama Rule of Criminal Procedure 32.2(e) now bars them from consideration by a state court, they are also procedurally barred from habeas review.
As discussed previously, a procedural default can be excused if the petitioner is able to show cause for failing to raise the claim and actual prejudice arising from the default. Again, the petitioner has not shown cause, and cannot show prejudice because the claims are meritless, nor does the “fundamental miscarriage of justice” exception require federal review.
See
Part VI,
infra,
generally for a discussion of the “cause and prejudice” and “fundamental miscarriage of justice” exceptions to procedural default.
(1) Fourth Amendment Claim
As with the Petitioner’s Fifth Amendment claim, his Fourth Amendment claim has been presented with some variation along the way. Initially, petitioner argued that he was unlawfully detained at the Tal-ladega County Jail without probable cause and without the benefit of an appearance before a judicial official and any statement or confession made by him was “tainted” by the unlawful detention and thereby inadmissible.
17
Later, recognizing that
Stone v. Powell,
428 U.S. 465 , 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976), would bar federal review of his Fourth Amendment claim, petitioner stated that he no longer seeks to raise an independent Fourth Amendment claim.
See Petitioner’s Memorandum of Law in Opposition to Respondent’s Motion for Summary Judgment,
n. 3. Petitioner has restructured his claim and now asserts that the state’s egregious violation of his Fourth Amendment rights was “ ‘so offensive to a civilized system of justice that they must be condemned under the Due Process clause of the Four
*900
teenth Amendment.’
Miller v. Fenton,
474 U.S. 104, 108 , 106 S.Ct. 445, 448 , 88 L.Ed.2d 405 (1985).”
Id.
An arrest is a deprivation of liberty that may be challenged under the Fourteenth Amendment without reference to the Fourth Amendment. However, for purposes of analysis, the Fourth Amendment is a more specific regulation and if a case cannot be made under the principles of the Fourth Amendment, the petitioner may not alternatively appeal to the principles of due process.
Patton v. Przybylski,
822 F.2d 697 (7th Cir.1987).
Petitioner argues that his Fourth Amendment rights were violated because he was jailed for a period of four months without appearance before a judicial officer. Under the Fourth Amendment, a fair and reasonable determination of probable cause must be made as a condition to any significant pretrial restraint on liberty.
Gerstein v. Pugh,
420 U.S. 103 , 95 S.Ct. 854 , 43 L.Ed.2d 54 (1975). The probable cause determination must be made either before or promptly after the detention.
Id.
at 125 , 95 S.Ct. at 869 . If probable cause has not been predetermined, a preliminary hearing must be held by a judicial officer to ascertain whether there is probable cause to detain the person. This probable cause requirement may be satisfied prior to an arrest, thereby eliminating the need for a preliminary examination. “Since the probable cause standard for pretrial detention is the same as that for arrest, a person arrested pursuant to a warrant issued by a magistrate on a showing of probable cause is not constitutionally entitled to a separate judicial determination that there is probable cause to detain him pending trial.”
Baker v. McCollan,
443 U.S. 137, 143 , 99 S.Ct. 2689, 2694 , 61 L.Ed.2d 433 (1979).
The petitioner was in custody in the State of Alabama pursuant to a warrant issued by the appropriate official of Calhoun County, Alabama, after a showing of probable cause, charging the petitioner with receiving stolen property. Even though the petitioner was transferred to the Talladega County Jail, his confinement was nevertheless pursuant to the Calhoun County warrant. For purposes of the Fourth Amendment, the situs of custody makes no difference as long as the probable cause requirements are satisfied. Because the probable cause determination had been made prior to his arrest and extradition to Alabama, the petitioner was not entitled to a post-arrest probable cause hearing. He was later indicted for murder in Talladega County, Alabama which eliminated the need for a preliminary hearing on the subsequent murder charge. Therefore, the court concludes that the petitioner was lawfully detained after sufficient probable cause was shown in order to obtain the arrest warrant, and no Fourth Amendment violation occurred as a result of petitioner’s detention in the Talladega County Jail.
18
Since the petitioner is unable to show a Fourth Amendment violation, his Fourteenth Amendment claim must necessarily fail.
See Patton, supra.
(2) Sixth Amendment
Petitioner also claims a violation of his Sixth Amendment right to counsel. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.” The Sixth Amendment is violated if, once the right has attached, the defendant is questioned by the police outside the presence of an attorney, and any statements so obtained are inadmissible at trial.
Massiah v. United States,
377 U.S. 201 , 84 S.Ct. 1199 , 12 L.Ed.2d 246 (1964). The protections of this amendment are often confused with the right to counsel found in the context of the Fifth Amendment protection against self-incrimination. The Fifth Amendment right to counsel is not directly conferred by the Constitution, but rather is a judge-made device to assure that the express constitutional right, the right against compulsory self-incrimination, is not infringed. The Fifth Amendment right to counsel is one of the prophylactic measures established in
Miranda v. Arizona,
designed to counteract the “inherently compelling pressures” of custodial interrogation. An invocation of the Fifth Amendment right to counsel indicates that the person invoking the privilege desires to
*901
have an attorney assist him in dealing with custodial interrogation by the police. The Sixth Amendment right to counsel is designed to protect the defendant at judicial proceedings when “the government has committed itself to prosecute, and the adverse positions of the government and defendant have solidified.”
United States v. Gouveia,
467 U.S. 180, 189 , 104 S.Ct. 2292, 2298 , 81 L.Ed.2d 146, 155 (1984) (quoting
Kirby v. Illinois,
406 U.S. 682 , 92 S.Ct. 1877 , 32 L.Ed.2d 411 (1972)). It is not until this point that the defendant finds himself “immersed in the intricacies of substantive and procedural criminal law.”
Id.
An invocation of the Sixth Amendment right to counsel indicates a desire for the assistance of an attorney during actual judicial proceedings with respect to a particular alleged crime. In other words, the Sixth Amendment right to counsel and the right to counsel under the
Miranda/Edwards
rule are two separate and distinct concepts protecting separate and distinct interests. The invocation of one is not to be construed as an invocation of the other.
McNeil v. Wisconsin,
501 U.S. 171, 174-77 , 111 S.Ct. 2204, 2206-08 , 115 L.Ed.2d 158, 166-67 (1991).
As the language of the amendment suggests, the protection of the Sixth Amendment extends to an
accused
in a
criminal prosecution.
The right “does not attach until a prosecution is commenced, that is, ‘at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing or arraignment.’ ”
Id.
(quoting
United States v. Gouv
eia, 467 U.S. 180, 189 , 104 S.Ct. 2292, 2298 , 81 L.Ed.2d 146, 155 (1984));
Kirby v. Illinois,
406 U.S. 682 , 92 S.Ct. 1877 , 32 L.Ed.2d 411 (1972);
Stokes v. Singletary,
952 F.2d 1567 (11th Cir.1992).
Moreover, another distinction between the Fifth and Sixth Amendment is that the Sixth Amendment right to counsel is “offense-specific.”
McNeil,
501 U.S. at 175 , 111 S.Ct. at 2207 , 115 L.Ed.2d at 166 .
19
The Supreme Court explained the rationale for limiting the Sixth Amendment right to counsel to specific pending charges:
The police have an interest in the thorough investigation of crimes for which formal charges have already been filed. They also have an interest in investigating new or additional crimes. Investigations of either type of crime may require surveillance of individuals already under indictment. Moreover, law enforcement officials investigating an individual suspected of committing one crime and formally charged with having committed another crime obviously seek to discover evidence useful at a trial of either crime. In seeking evidence pertaining to pending charges, however, the Government’s investigative powers are limited by the Sixth Amendment rights of the accused. To allow the admission of evidence obtained from the accused in violation of his Sixth Amendment rights whenever the police assert an alternative, legitimate reason for their surveillance invites abuse by law enforcement personnel in the form of fabricated investigations and risks the evisceration of the Sixth Amendment right recognized in Massiah. On the other hand, to exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at the time, would unnecessarily frustrate the public’s interest in the investigation of criminal activities. Consequently, incriminating statements pertaining to pending charges are inadmissible at the trial of those charges_
[FN16]
Maine v. Moulton,
474 U.S. 159, 180 , 106 S.Ct. 477, 489 , 88 L.Ed.2d 481 (1985).
When the petitioner gave his October 18, 1982, statement, he was in custody in Alabama pursuant to the receiving stolen-
*902
property warrant, the only offense for which a formal charge had been made. It is undisputed that petitioner’s Sixth Amendment right to counsel had attached as to the Calhoun County stolen-property charge. However, since the Sixth Amendment right to counsel is offense-specific, it had not attached as to the Talladega County murder investigation because he had not yet been charged with murder.
20
Any questioning relating to the murder investigation falls within the interest the Supreme Court sought to safeguard in
Maine v. Moulton
— the ability of law enforcement officers to investigate new and additional criminal activities through the questioning of criminal defendants.
The petitioner argues that the Sixth Amendment right to counsel attached at an earlier stage when he was targeted by the police as a suspect in the Donahoo murder. Relying on the decision in
DeAngelo v. Wainwright,
781 F.2d 1516 (11th Cir.1986), petitioner maintains that the state’s investigation of his involvement in the murder had surpassed the investigatory phase and was well within the accusatory phase, and that his Sixth Amendment rights had attached. While the
DeAngelo
court suggested that the right to counsel may attach even though no accusatory pleading is pending when the investigation focuses on one particular person, it based the possibility on language found in the case of
Escobedo v. Illinois,
378 U.S. 478 , 84 S.Ct. 1758 , 12 L.Ed.2d 977 (1964). However, as the Eleventh Circuit recognized,
Es-cobedo
is viewed “as an aberration in an otherwise unbroken chain of precedent which holds that a defendant does not have a constitutional right to counsel until adversary judicial proceedings are brought against him.”
DeAngelo v. Wainwright,
781 F.2d at 1519 . Additionally,
DeAngelo
involved a confession surreptitiously obtained from a hospital patient by an informant wearing a hidden microphone. It is this type of conduct that the Eleventh Circuit condemns when it refers to the evasion of constitutional protections “by means of trickery or circuitous machinations.”
DeAngelo,
781 F.2d at 1520 n. 2. There was no such conduct involved when the petitioner gave his statements to the police. No wire taps, hidden tape recorders, or other forms of subterfuge were used. The petitioner was well aware that he was giving a formal statement to the police which was being tape recorded. Moreover, the United States Supreme Court made it clear in
McNeil
that the Sixth Amendment right to counsel does not attach until a prosecution is commenced,
McNeil,
501 U.S. at 175-77 , 111 S.Ct. at 2207-08 , 115 L.Ed.2d at 167 , plainly undermining any Sixth Amendment foundations underlying
DeAngelo .
Some circuits have recognized an exception to the “offense-specific” rule set out in
McNeil .
These courts have interpreted the Supreme Court’s language and disposition in
Maine v. Moulton
to mean that the Sixth Amendment (not the Fifth Amendment) prohibits interrogation about an uncharged offense if it is “inextricably intertwined” or “extremely closely related” to the charged offense.
United States v. Carpenter,
963 F.2d 736 (5th Cir.1992);
see United States v. Hines,
963 F.2d 255 (9th Cir.1992);
United States v. Cooper,
949 F.2d 737 (5th Cir.1991). The petitioner in the instant case was charged in Calhoun County with receiving stolen property, the stolen property being the five-carat diamond ring stolen from the victim, Macon Donahoo. The uncharged offense, about which the petitioner was questioned and for which petitioner was ultimately tried and convicted, was the murder of Mr. Donahoo. Relying on the rationale in
Carpenter, Hines,
and
Cooper ,
the court concludes that these two offenses do not fall within the “closely related” exception. The two crimes involve totally different conduct, even though some of the same evidence could be used in the prosecution of both.
See Cooper,
949 F.2d at 744 . The two crimes occurred in two different counties at different times.
See Hines,
963 F.2d at 257 . The stolen property and murder charges are separate and distinct offenses, therefore the Sixth Amendment did not bar the police from questioning the petitioner about the murder.
Petitioner also contends that the State intentionally delayed by four months
*903
bringing a formal charge against him for the murder in order to suspend his Sixth Amendment right to counsel, and that the intentional and unnecessary delay invoked the protections of the Sixth Amendment. This argument was rejected in the ease of
Flittie v. Solem,
775 F.2d 933 (8th Cir.1985), the case cited by the petitioner in support of this proposition. Likewise this court declines to adopt the principle, and concurs with the United States Supreme Court’s reasoning on this matter:
There is no constitutional right to be arrested. The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect, risking a violation of the Fourth Amendment if they act too soon, and a violation of the Sixth Amendment if they wait too long. Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.
Hoffa v. United States,
385 U.S. 293, 310 , 87 S.Ct. 408, 417 , 17 L.Ed.2d 374 (1966).
See also United States v. Alvarez,
812 F.2d 668 , 670 n. 5 (11th Cir.1987) (citing with approval
United States v. Lovasco,
431 U.S. 783, 791-92 , 97 S.Ct. 2044, 2049-50 , 52 L.Ed.2d 752 (1977) (Requiring the immediate filing of charges “could make obtaining proof of guilt beyond a reasonable doubt impossible by causing potentially fruitful sources of evidence to evaporate before they are fully exploited.”);
United States v. Watson,
423 U.S. 411, 431 , 96 S.Ct. 820, 831 , 46 L.Ed.2d 598 (1976) (Powell, J., concurring) (“Good police practice often requires postponing an arrest, even after probable cause has been established, in order to place the suspect under surveillance or otherwise develop further evidence necessary to prove guilt to a jury.”).
Detective Surrett testified that while the petitioner was under investigation for the Donahoo murder, there was insufficient evidence to support a finding of probable cause for a murder warrant until after the petitioner confessed. Even if probable cause had been established prior to the confession, the police were under no duty to charge the petitioner and to cease their investigation before developing evidence necessary to support a conviction. Consequently, the fact that petitioner was not formally charged until the indictment was filed on December 17, 1982, does not give rise to a constitutional violation.
The court rejects the petitioner’s argument that his Sixth Amendment right to counsel materialized when he should have been, but was not, brought before a judicial officer on September 10,1982, the date of his scheduled preliminary hearing on the receiving stolen property charge in Calhoun County. It is suggested that the police deliberately isolated the petitioner in the Talladega County Jail in order to prevent him from obtaining the assistance of court-appointed counsel. The undisputed record shows that the Petitioner wanted to be transferred to the Talladega County Jail in order to be near his family and in order to influence the murder investigation. It was petitioner’s plan to lessen his culpability and to increase that of his co-defendants by cooperating with the Talladega County police. According to testimony, the petitioner was not isolated. He remained in contact with his family and was not cut off from the general public. He was repeatedly advised of his right to court-appointed counsel while housed in the Tallade-ga County Jail. As to the scheduled hearing in Calhoun County, testimony revealed that the Calhoun County authorities were well aware of petitioner’s location in the Talladega County Jail and no requests were made to return the petitioner to Calhoun County for any court appearances. The petitioner never requested that he be returned to Calhoun County. Hence, petitioner has failed to demonstrate any deliberate isolation on the part of the State.
Furthermore, even if the evidence showed that Talladega and Calhoun County officials colluded to fail to bring petitioner to the September, 1982 preliminary hearing, only his Sixth Amendment right to counsel on the stolen-property charge would be implicated. Because petitioner had not then been charged in the murder of Macon Dona-hoo, no Sixth Amendment right to counsel
*904
had attached with respect to the murder investigation. Thus, even if there was an intentional scheme to “isolate” petitioner, none of his federal constitutional rights were violated in a way affecting the outcome of this case.
It follows, there can be no Sixth Amendment violation relating to the admission of petitioner’s statement at his murder trial because no such protection was available to him at the time the statement was made.
The court holds, in summary, that petitioner’s Fourth and Sixth Amendment challenges to his confessions are procedurally barred from habeas review and, not only has he failed to show “cause” for the default, the claims are meritless so that he has suffered no “prejudice.” Absent a showing of cause
and
prejudice, the procedural default doctrine precludes review of these claims.
21
See Wainwright v. Sykes, supra; Sochor v. Florida,
504 U.S.-, 112 S.Ct. 2114 , 119 L.Ed.2d 326 (1992). Furthermore, the confessions themselves show that petitioner can make no “colorable showing of factual innocence” in order to bring himself within the fundamental-miscarriage-of-justice exception to the rule.
Murray v. Carrier,
477 U.S. 478 , 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986);
Sawyer v. Whitley,
505 U.S. -, 112 S.Ct. 2514 , 120 L.Ed.2d 269 (1992). Being procedurally barred, therefore, the Fourth and Sixth Amendment claims do not support habeas relief.
IV. Ineffective Assistance Of Counsel
Beginning at page 12 of the Amended Petition for writ of habeas corpus, petitioner sets out his claims for relief based upon the alleged ineffective assistance of his trial and appellate counsel. From paragraphs 49 through 63 of the petition, he explains the factual and legal bases of the various instances of ineffectiveness. Those claims appear to be the following:
1.Trial counsel failed to seek to rehabilitate and save two jurors stricken for cause who had expressed conscientious objections to the death penalty. (Paragraph 49).
2. Trial counsel failed to request individual voir dire during jury selection or sequestration of the jury during trial. (Paragraph 50).
3. During the
penalty
phase of the trial, defense counsel elicited questions from a witness which allowed the prosecution to reveal the existence of a plea-bargain agreement in relation to petitioner’s 1975 murder convictions. (Paragraph 52(a)).
4. During the
penalty
phase, defense counsel failed to challenge the constitutional validity of petitioner’s 1975 murder convictions, which were used to establish one of the aggravating circumstances making him eligible for the death penalty in this case. (Paragraph 52(b) (i-iv)).
5. Defense counsel failed to explain to petitioner his right to testify at the penalty phase of trial and to offer mitigating evidence. (Paragraph 53).
6. Defense counsel failed to adequately investigate and present mitigating evidence during the penalty phase relating to petitioner’s violent and abusive childhood and family background. (Paragraphs 55-57).
7. Defense counsel failed to adequately investigate and present mitigating evidence relating to the petitioner’s mental instability during the penalty phase. (Paragraphs 58-59).
8. Defense counsel failed to adequately investigate and present during the penalty phase mitigating evidence relating to neurological damage petitioner had suffered as the result of a gunshot wound to the head. (Paragraph 60).
9. Defense counsel failed to adequately investigate and present during the penalty phase mitigating evidence relating to a polygraph examination of the petitioner which indicated that he had not participated in the murder. (Paragraph 61).
10. Defense counsel failed to request a hearing on the accuracy of allegedly prejudicial information contained in a presentence investigation report made available to the sentencing judge on March 22, 1983, although counsel did object to the report and
*905
ask the court not to consider statements in the report. (Paragraph 62).
11. Petitioner received ineffective assistance of counsel on direct appeal because (1) no cases were cited in petitioner’s initial appellate brief; (2) appellate counsel failed to raise as an issue on appeal the trial court’s failure to appoint a defense psychiatrist; and (3) appellate counsel failed to raise as an issue on appeal the trial court’s erroneous consideration of prejudicial hearsay in the presentenee report. (Paragraph 63).
A. General Principles
The Supreme Court’s two leading cases on the Sixth Amendment right to the effective assistance of counsel are
Strickland v. Washington,
466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), and
United States v. Cronic,
466 U.S. 648 , 104 S.Ct. 2039 , 80 L.Ed.2d 657 (1984). Those two cases summarize a long line of Sixth Amendment cases dealing with the right to counsel and the right to competent and effective counsel. In
Strickland v. Washington,
the court formulated the test for assessing during habeas proceedings whether the representation provided by an attorney during a criminal trial constituted “effective” representation. The court wrote:
A convicted defendant’s claim that counsel’s assistance was so defective as to require a reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted in a breakdown of the adversary process that renders the result unreliable.
Strickland v. Washington,
466 US. 668, 687, 104 S.Ct. 2052, 2064 , 80 L.Ed.2d 674, 693 (1984). Thus, the test to be applied is a two-pronged test, attempting to measure
both
the competence of counsel’s performance and whether deficiencies in that performance caused actual harm to the defense.
On the first prong of that test— counsel’s performance — the Supreme Court explained that reviewing courts must be deferential to the decisions made by counsel. The court explained:
Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation omitted]. A fair assessment of an attorney’s performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenges conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”
Strickland v. Washington, supra
at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 695
(quoting Michel v. Louisiana,
350 U.S. 91, 101 , 76 S.Ct. 158, 164 , 100 L.Ed. 83 (1955). The fundamental purpose of counsel under the Sixth Amendment is to make sure that the Government’s evidence undergoes the testing provided by the adversarial system. The Sixth Amendment right to the effective assistance of counsel is violated only when counsel’s performance causes a breakdown in the adversarial nature of the proceeding. Whether particular decisions made by counsel are professionally reasonable must be assessed in the context of all the circumstances, not the least of which are the defendant’s own statements and actions upon which the attorney must rely in deciding
*906
whether to pursue particular lines of investigation or defense.
Even if the court determines that counsel’s conduct with respect to any particular error or omission was professionally unreasonable, the Sixth Amendment right to the effective assistance of counsel is violated only if the defendant is able to establish the second prong of the test, that the defense actually suffered due to the error or omission. Although there are circumstances under which prejudice to the defense' is presumed,
22
more commonly, “the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland v. Washington, supra
466 U.S. at 694, 104 S.Ct. at 2068 , 80 L.Ed.2d at 698 . A reasonable probability is “a probability sufficient to undermine confidence in the outcome.”
Id.
In making the assessment of prejudice, the ha-beas court is required to presume that the judge and jury acted according to law except when there is a challenge to the judgment on the basis that there was insufficient evidence to support the conviction. Except in those limited circumstances described in
Strickland v. Washington,
prejudice cannot be presumed merely from the circumstances of the appointment, the shortness of time allowed defense to prepare, or the relative inexperience of counsel.
See United States v. Cronic, supra.
The defendant must identify specific errors or omissions allegedly committed by counsel during the trial, must establish that those errors or omissions were professionally unreasonable, and that the identified errors or omissions resulted in actual harm to the defense in the sense that there exists a reasonable probability that the outcome of the proceeding would have been different had the errors not occurred.
B. Death-Scrupled Jurors
The first specific error or omission asserted by petitioner is that his trial counsel failed to seek to rehabilitate and preserve two jury veniremen stricken for cause who had expressed objections to the death penalty. At paragraph 49 of the Amended Petition for Habeas Corpus Relief, he alleges the following:
From the start of the trial, defense counsel failed to take reasonable steps to insure that petitioner received a sentence less than death. During jury selection, two prospective jurors, Willie J. Best and Melissa E. Britt, stated that they had conscientious objection to the death penalty. R. 8-9. District Attorney Rumsey elicited, through leading questions, admissions by both jurors that they would vote automatically against the death penalty regardless of the evidence. R. 9-11. Defense counsel made no effort to rehabilitate these jurors. He asked no questions of them, and he did not oppose the State’s successful challenges for cause. R. 8-11, 55.
See Second Amended Petition,
at p. 13. While not pled in precisely these terms, this claim was fairly presented to the state courts in the petition for writ of error coram nobis. There, alleged in the context of counsel’s failure to file certain motions, petitioner alleged that his attorney was ineffective because he failed to file a motion “challenging the court’s striking of prospective jurors because of their inability to consider the death penalty.”
See Tab R-I¡,1,
at p. 12. Although no specific jurors were identified, the petition for writ of error coram nobis argued that the exclusion of such jurors tended to create “juries that are guilt-prone and underrepre-sentative in a Sixth Amendment sense” and that “the exclusion of such jurors at the guilt phase of a bifurcated capital trial deprives a defendant of the constitutional right to a fair jury and one drawn from a representative cross-section of the community.”
See Tab R-Jfl,
pp. 12-13.
23
On appeal from denial of
*907
coram nobis relief, this and all other issues of ineffectiveness alleged in the coram nobis petition were expressly reincorporated in the petitioner’s appellate brief, although they were not argued. In that sense, the issues were not abandoned, but nor were they pressed. The court concludes, therefore, that the issue of ineffectiveness relating to counsel’s failure to seek to preserve jurors Britt and Best is not procedurally barred.
Even though not procedurally barred, the claim is meritless. The trial record reflects that during selection of the jury the trial court read off a long list of circumstances that would disqualify jurors, and then asked any jurors who might be disqualified under that list to come forward.
See Tab R-8.
Juror Best came forward and said, “Concerning my relationship, I don’t believe in capital punishment or circumstantial evidence.” Additionally, juror Britt came forward and said, “Because of my religion, I don’t believe in capital punishment.” Later, both of these jurors were more extensively questioned. At page 8 of the Trial Record, the following colloquy occurred:
MR. RUMSEY (District Attorney): Do any of you ladies or gentlemen have a religious or moral conviction against passing judgment on your fellow man? All right, Mr. Best, and your name, please mam?
JUROR: Melissa Britt.
MR. RUMSEY: Let me ask you, when you say that you have a personal, moral, or religious conviction, and I’ll give this question to both of you at the same time. Are you telling us that regardless of what the evidence showed, that you would be unable to pass judgment on your fellow man, regardless of what the evidence showed?
JUROR WILLIE BEST: As to concerning capital punishment.
MR. RUMSEY: I am going to get to that in just a moment. Let me go to religious, moral, and personal conviction at this time. Would you, Ms. Britt, regardless of what the evidence — the evidence that came to you from the witness stand, regardless of what it was, you couldn’t convict anybody?
JUROR MELISSA BRITT: I could, but I couldn’t send somebody to murder.
REPORTER: What did she say?
MR. RUMSEY: She said she could but she couldn’t send somebody to murder. Are you talking about the electric chair?
JUROR MELISSA BRITT: Yes.
MR. RUMSEY: Mr. Best?
JUROR WILLIE BEST: The same answer.
‡ ‡ ‡ ‡ ‡ *
[MR. RUMSEY]: Are any of you opposed or conscientiously opposed to capital punishment? Mr. Best and Ms. Britt. Let me ask you this, first of all, Mrs. Britt, have you held that view for a long time?
MRS. BRITT: Yes.
MR. RUMSEY: And of course, there is nothing that I could say or anybody could say that would change you from that view?
MRS. BRITT: No.
MR. RUMSEY: Let me ask you this. Would you automatically vote against the imposition of the death penalty without regard to any evidence that might be developed in the trial of this case, if you were selected as a juror?
MRS. BRITT: Repeat the question.
MR. RUMSEY: I will read it to you word for word, but it very important. As to whether or not you would automatically
*908
vote against the imposition of the death penalty, without regard to any evidence that might be developed in the trial of this case, if you were selected as a juror.
JUROR BRITT: I would vote against the death penalty.
MR. RUMSEY: We challenge her for cause, Your Honor. You would automatically vote against the death penalty and you are irrevocably committed to that position, regardless of what evidence might come to you from the witness stand?
JUROR BRITT: Yes.
MR. RUMSEY: We challenge for cause.
THE COURT: All right.
MR. RUMSEY: Now, Mr. Best, the same question. I believe you said that you are conscientiously opposed to the death penalty.
JUROR WILLIE BEST: Yes, sir.
MR. RUMSEY: And I assume that you have held that view for a long time?
JUROR BEST: Yes.
MR. RUMSEY: And nothing that I could say or anybody here could say, would get you to change that view?
JUROR BEST: That is right.
MR. RUMSEY: And I’ll ask you this question. Would you automatically vote against the imposition of the death penalty without regard to any evidence that might be developed in the trial of this case, if you were selected as a juror?
JUROR BEST: I would vote against the death penalty.
MR. RUMSEY: And so you are irrevocably committed to vote against the death penalty, regardless of what evidence should come forth from that witness stand?
JUROR BEST: Yes.
MR. RUMSEY: We would challenge Mr. Best for cause.
THE COURT: Granted.
See Tab R-8,
pp. 8-11.
While we may quibble over whether defense counsel should have attempted to persuade these jurors that, despite what they had said, they were not unalterably opposed to the death penalty, counsel was not ineffective in a constitutional sense for declining to do so. The responses given by both jurors indicated that they were irrevocably and unalterably opposed to the death penalty to the extent that they would automatically vote against the imposition of the punishment. As such, the jurors were properly excludable under the rule in
Witherspoon v. Illinois,
391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968), even without the clarification provided subsequently in
Wainwright v. Witt,
469 U.S. 412 , 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985). Following
Witherspoon ,
lower courts have concluded that a juror is properly excludable from a capital-punishment trial if the juror makes unmistakably clear that he would automatically vote against the imposition of the punishment or that his attitude toward the death penalty would prevent him from making an impartial decision as to the guilt of the defendant.
See Stephens v. Kemp,
846 F.2d 642 (11th Cir.1988).
Because both jurors Best and Britt made unmistakably clear that they would vote automatically against the imposition of the death penalty, they were properly excludable under
Witherspoon
and
Stephens .
Given the strength of their response to questioning by the prosecutor, counsel’s decision not to attempt to rehabilitate them, because to do so appeared to be fruitless, was a professionally-reasonable decision and did not amount to ineffectiveness of counsel.
C. Voir Dire and Sequestration
Petitioner’s second specification of ineffectiveness of counsel asserts that counsel should have requested individual voir dire of prospective jurors during jury selection and should have requested sequestration of the jury during trial.
24
Whether construed as
*909
two separate specifications of attorney error, or as one, the claim is meritless. First, it is apparent from the face of the trial record that petitioner himself waived sequestration of the jury. At page 38 of the trial transcript, the following discussion is reflected:
BY THE COURT: Bring the defendant up. Mr. Waldrop, we have been discussing, your attorneys, and the district attorney. In fact, your attorney was the one that brought it up first. Do you understand that this is a capital felony that you’re charged with?
THE DEFENDANT: I do.
BY THE COURT: And if you require— not if you require — but the law requires that I keep the jury together from now until this trial is concluded, unless you consent on the record and the State consents, to allow the jury to separate and go home. Now do you understand that?
THE DEFENDANT: Yeah.
BY THE COURT: Do you consent to the jury separating until this trial is concluded?
THE DEFENDANT: Yes, sir.
BY THE COURT: At the time when we take breaks, and when they go home at night and when we take a recess at noon?
THE DEFENDANT: I want them to go home. I want them to.
BY THE COURT: All right. And as his attorney, Mr. Fannin, do you concur with that?
MR. FANNIN: Yes, sir, Mr. Pitts and myself, both.
See Tab R-8,
p. 38. Plainly, after having the right to require the sequestration of the jury explained to him, the petitioner himself indicated that he wanted the jury to be allowed to go home at night during the trial. Given that expression by the petitioner, it cannot be said that defense counsel’s concurrence was professionally unreasonable. Moreover, no evidence was offered at the state coram nobis hearing to indicate that the failure to sequester the jury resulted in any prejudice to the petitioner. There was no evidence that the jury was exposed to coercion or inappropriate information that may have affected their verdict. In short, therefore, even if defense counsel’s decision was professionally unreasonable, petitioner has not shown a reasonable probability that the outcome of his trial or sentencing procedure would have been different had his attorneys insisted upon sequestration of the jury.
Similarly, petitioner has made no showing that there is a reasonable probability that the outcome of his trial or sentencing procedure would have been different if his attorney had insisted upon an individualized voir dire of prospective jurors. Despite raising this claim in his coram nobis petition, no evidence was offered during that hearing to establish that any juror was affected by the en masse voir dire of the entire venire. Absent some showing that there is a reasonable probability that the outcome of the proceeding would have been different had such an individualized voir dire occurred, it cannot be said that counsel’s failure to request such a voir dire resulted in prejudice to the defense.
See Strickland v. Washington, supra.
25
*910
D. Plea Bargain/Judicial Leniency
Petitioner’s third allegation of ineffective assistance of counsel argues that his defense counsel’s performance during the penalty phase of his trial was professionally unreasonable because counsel asked certain questions of a witness which allowed the prosecution to then reveal that petitioner had plea-bargained his 1975 murder convictions. At paragraph 52(a) of the second amended petition, petitioner contends that these events allowed the prosecution to argue that petitioner already had been the beneficiary of undue judicial leniency, which he should not receive again.
Respondents have alleged that this particular claim of ineffective assistance of counsel is procedurally barred from review because it was not raised during the 1985 eoram nobis proceeding. While the coram nobis petition alleged that counsel were ineffective because they failed to properly investigate and present evidence of potential mitigating circumstances, it does not raise the specific allegation set forth here.
26
Nor does the brief on appeal from denial of eoram nobis specifically raise any issue regarding the prosecution’s ability to refer to the 1975 plea bargain. In sum, this particular designation of counsel error has never been fairly presented to any state court for consideration or resolution. Nor is there a state remedy now available to the petitioner inasmuch as the two-year limitation provided in Alabama Rule of Criminal Procedure 32.2(c) has expired.
By failing to present this particular claim of ineffectiveness of counsel within the two-year limitation,
27
Waldrop has procedurally defaulted the claim. He has not shown cause and prejudice that would excuse this procedural default under
Wainwright v. Sykes, supra.
Indeed, it seems unlikely that he would be able to do so inasmuch as he was represented by different attorneys in 1988 when he did file a Rule 20 challenge to his conviction and death sentence. The only explanation that could be offered for the failure to raise this particular allegation would involve either an oversight or an intentional decision by those attorneys not to assert this claim, neither of which is an objective obstacle external to the defense, sufficient to be “cause.”
See Murray v. Carrier,
477 U.S. 478 , 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986).
Notwithstanding the court’s conclusion that this particular specification of attorney error is procedurally barred, it also is meritless. To the extent that petitioner argues that defense counsel’s questions opened the door to allow the prosecution to refer to his 1975 plea bargain, the record reflects that the only questions asked by defense counsel were whether the 1975 convictions carried 15-year sentences and whether those sentences were concurrent or consecutive.
See Tab R-20,
p. 14. The fact that the prosecutor thereafter elicited from the witness that the 15-year sentences were pursuant to a plea agreement indicates nothing professionally unreasonable about defense counsel’s decision to bring out the concurrent nature of the sentences. Moreover, the so-called “judicial leniency” argument advanced by the prosecutor in closing arguments during the penalty phase would have been available to
*911
him in any event, even if defense counsel had asked no questions of the witness during the penalty phase. The essence of the closing argument simply was that, because the court had been too lenient with petitioner in 1975, he was later free to rob and murder Thur-mon Macon Donahoo. That argument was apparent from the circumstances and was not invited by the narrow questions posed by defense counsel. Counsel’s performance was not professionally unreasonable in this regard.
E. Validity of 1975 Convictions
The fourth specification of attorney error alleged by petitioner asserts that his trial counsel were constitutionally ineffective because they failed to challenge the constitutional validity of the 1975 murder convictions used by the prosecution as one of the aggravating factors making petitioner eligible for the death penalty in this case. The second amended petition for habeas relief alleges at paragraph 52(b) that petitioner’s 1975 murder convictions were invalid because (1) the court failed to make an inquiry into petitioner’s competency before accepting the guilty plea, (2) the court failed to adequately inform the petitioner of the rights he was waiving, (3) the court did not determine that there was a factual basis for the pleas, and (4) the court did not inform the petitioner of his right to appeal the guilty pleas. The respondents contend that this specification of attorney error is procedurally barred from review because it was not asserted in either petitioner’s coram nobis action or his Rule 20 petition.
Far from attempting to refute the assertion of procedural default or to offer a showing of “cause and prejudice” excusing it, petitioner has agreed that this and another claim of ineffectiveness are barred. At page 41 of “Petitioner’s Memorandum Of Law In Opposition To Respondents’ Motion For Summary Judgment and In Support of Petitioner’s Motion For Summary Judgment,” petitioner’s counsel writes, “Waldrop agrees, however that the ineffectiveness allegations in paragraph 52(b) and 61 are barred and abandons them.” Thus, based on the agreement of the petitioner that this particular specification of ineffectiveness is procedurally barred, it does not justify habeas relief.
F. Petitioner’s Right To Testify
At paragraph 53 of the second amended petition for habeas relief, petitioner asserts that his trial attorneys were constitutionally ineffective because they failed to explain to him his right to testify at the penalty phase and to offer mitigating evidence. Respondents apparently do not assert that this claim is procedurally barred, as it was essentially raised during petitioner’s coram nobis action under the general rubric of counsel’s failure to adequately investigate and prepare for the sentencing phase of the trial.
The coram nobis court made extensive findings of fact based on the testimony at the eoram nobis hearing. That court found that defense counsel had explained to petitioner his right to testify at the penalty phase and the nature of mitigating evidence that could be offered. The coram nobis court made the following findings of fact:
During Fannin and Pitts [sic] preparation for trial, they attempted to prepare petitioner for what was ahead, including trial procedures and the fact that there would be a sentencing hearing.
(See Tab R-43,
p. 7).
Additionally, Fannin and Pitts could not put petitioner on the stand because it would have allowed the prosecution to go into the details of petitioner’s prior double-murder conviction. They discussed this at length with petitioner and petitioner did not want to testify. Also, Fannin and Pitts had to be concerned that if petitioner testified, he might tell the jury that he preferred death to life without parole.
(See Tab R-43,
p. 9).
These findings of fact are entitled to a presumption of correctness under 28 U.S.C. § 2254 (d). On the whole, they are fairly supported by the record of the coram nobis testimony and none of the exceptions specified at § 2254(d) apply. He has proffered no evidence to establish that the findings of fact made by the state coram nobis court are erroneous.
See Sumner v. Mata,
449 U.S. 539 , 101 S.Ct. 764 , 66 L.Ed.2d 722 (1981). The presumption of correctness ex
*912
tends to the “basic, primary, or historical facts” found by the state court, but conclusions of law or applications of law to the facts found by the state court are not entitled to a presumption of correctness.
See Glidewell v. Burden,
822 F.2d 1027 (11th Cir.1987). Once findings of fact are made by the state court consistent with § 2254(d), the burden of proof is on the petitioner to show by convincing evidence that those findings are erroneous.
See Sumner v. Mata, supra.
No such proffer of evidence has been made here.
Based on the findings of fact by the state court, it is apparent that petitioner not only had explained to him his right to testify at the penalty phase of his trial, he and his attorneys decided that he would not testify. Legitimate strategic considerations supported that conclusion, including the fear that, if petitioner testified, the grisly details of his 1975 murder convictions would be developed on cross-examination. Additionally, counsel were afraid that petitioner would simply tell the jury that he wanted the death penalty and not life without parole. In short, petitioner’s assertions that his lawyers did not explain to him his right to testify at the penalty phase and that they did not explain to him the concept of mitigation are refuted by the record and testimony at the coram nobis hearing. Consequently, because counsel did explain to petitioner his right to testify and did explain to him the role and purpose of mitigating evidence at the penalty phase, their representation was not ineffective in this regard.
The allegations of paragraph 55 through 61
28
of the second amended complaint are all closely related to petitioner’s assertion that his defense counsel failed to adequately prepare for the penalty phase and sentencing hearing at trial. Each of these paragraphs allege that defense counsel were constitutionally ineffective because they failed to adequately investigate and prepare to present mitigating evidence during the sentencing phase of petitioner’s trial. Specifically, petitioner argues at paragraphs 55 through 57 of the second amended complaint that defense counsel failed to adequately investigate and present mitigating evidence of his violent and abusive childhood and family background. At paragraph 58 and 59, he contends that defense counsel failed to adequately investigate and prepare to present mitigating evidence with respect to his mental instability, and at paragraph 60 he alleges that defense counsel failed to adequately investigate and prepare to present mitigating evidence relating to neurological damage he suffered as a result of a gunshot wound.
It is fair to say that these allegations of ineffectiveness were the primary focus of the petition for writ of error coram nobis and the coram nobis hearing. Extensive testimony was received by the coram nobis court from petitioner’s family members, both describing and denying instances of abuse suffered by the petitioner in his formative years. As a result of that testimony, the coram nobis court made lengthy findings of fact set out at Tab R-43. Because those findings of fact are fairly supported by the record of the coram nobis hearing and none of the exceptions identified in § 2254(d) apply, they are entitled to a presumption of correctness to the extent that they set forth basic historic facts.
See Sumner v. Mata, supra.
Without attempting to recite all of the findings of fact made by the coram nobis court, set out hereinbelow are some of the more pertinent findings relating to the specific assertions of ineffectiveness. In preparation for the trial, defense counsel met with petitioner about twelve times, each meeting lasting about an hour. Petitioner was adamant that he did not want his family involved in the trial, although his common-law wife, Doris Thomas, was used as an alibi witness during the guiltyinnocence phase of trial. Although counsel described to the petitioner the trial procedures to expect, including a sentencing hearing, petitioner remained quiet about his background and family history. He never told his attorneys that he suffered
*913
from any physical or sexual abuse as a child or that he suffered from any addiction or substance problems. He did tell them that he had been shot in the head and that he had once shot himself in the stomach. Petitioner objected to his lawyers’ contacting his family for investigative purposes, although they did so anyway. Defense counsel interviewed petitioner’s mother, one of his sisters, and other members of his family. None of those family members ever disclosed any details about the petitioner’s habits or his background. None of them described any abusive or violent childhood or family experiences. Specifically, the trial court found that petitioner had not been sexually abused as a child by either his family, uncle, or half-sister.
The eoram nobis court also found that Fannin and Pitts decided not to call family members to testify during the penalty phase of the trial for three reasons. First, the petitioner had made very clear that he did not want to involve his family in the trial. Second, no one in the family had supplied the attorneys with any information that could be useful in support of an argument for mitigation. The Court found:
At no time did petitioner tell them [defense counsel] about any of the abuse he allegedly suffered. Other family members talked with Fannin and Pitts and they never told them about any abuse petitioner allegedly suffered. Neither petitioner nor any of his family provided Fannin and Pitts with any possible mitigation arising out of any type of abuse, even when mitigation was explained to them.
See Tab R-43,
p. 15. Lastly, the petitioner clearly informed the attorneys that he did not want to receive a sentence of life without parole but would rather receive the death penalty.
(See R-43,
pp. 8 & 9).
The eoram nobis court also made findings of fact with respect to the neurological damage allegedly suffered by the petitioner. The court found that petitioner was shot in the head on November 28, Í981, and, after being initially treated at a hospital in Anniston, was transferred to University Hospital in Birmingham. There, he was treated by Dr. Evan Zeiger a, neurosurgeon, and remained hospitalized only for “a short period of time.” Furthermore, both Dr. Zeiger and Dr. Thomas Boll testified that petitioner had improved to a normal state when he left University Hospital and that he had an excellent prognosis for complete recovery. The treating neurosurgeon, Dr. Zeiger, testified that, in a follow-up examination in February of 1982, he found no evidence that petitioner suffered from any seizure activity, and he expressed the opinion that the injury to the plaintiffs right frontal lobe was located in a “silent portion of the brain” which would not cause so-called “rage attack seizures.” A neurop-sychologist, Dr. Thomas Boll, who examined and tested the petitioner, offered the opinion that the nature of the injury suffered by the petitioner did not impair his ability to appreciate the criminality of his conduct nor did it cause seizures which contributed in any way to his criminal conduct.
The court found that anecdotal testimony concerning the petitioner’s alleged seizures was conflicting and unpersuasive. While family members testified that the petitioner suffered seizure episodes, his common-law wife, Doris Thomas, testified she never witnessed such a seizure, but frequently saw petitioner drunk or hung-over from alcohol and drugs.
The court also made the following finding of fact:
Fannin testified that he talked with Dr. Zeiger prior to trial and when he learned that Dr. Zeiger’s testimony would not excuse petitioner’s conduct in any way, he decided not to call Zeiger as a witness. Fannin made a tactical decision not to present evidence of petitioner’s head injury.
Hi Hi ‡ H* * H*
Fannin knew of the injury and contacted Zeiger in an attempt to gain some evidence favorable to petitioner’s case, but when he realized what Zeiger would testify about he made a tactical decision not to call him as a witness.... Petitioner [sic] or his family’s testimony about his head wound would have been overwhelmingly contradicted by Dr. Zeiger’s testimony.
See Tab R-43,
p. 18.
The coram nobis court made further findings with respect to the petitioner’s alleged
*914
mental instability and the failure of defense counsel to offer evidence of it during the penalty phase of trial. The court found that neither the petitioner nor any membér of his family ever conveyed to defense counsel any facts concerning drug abuse or addiction or alcohol use by the petitioner. In fact, the petitioner testified at the coram nobis hearing that his alcohol use was none of his attorneys’ business. The court found that, although the petitioner was shot in the stomach with a .22 caliber pistol on August 1, 1981, it was not a suicide attempt. Petitioner’s attorneys never witnessed any strange behavior or other evidence indicating that the plaintiff was suffering from a mental disease or defect, and, in fact, petitioner once expressed resentment at the implication that he might have a mental problem.
29
The coram nobis court included its findings as follows:
Further, both Fannin and Pitts testified that petitioner told them that he didn’t want life without parole, he wanted the electric chair. Petitioner told Fannin and Pitts that he did not want his family involved in the trial. Petitioner never told Fannin and Pitts about his alleged physical and sexual abuse. In fact, by his own testimony, he never told anyone about these incidents until his release from prison when he served time for his prior double-murder. Pitts testified that he was present when petitioner’s mother berated him for what he had done, that petitioner had ruined her name and he was going to get what he deserved.
See Tab R-43,
p. 21.
In assessing the effectiveness of counsel in relation to the penalty phase in a capital punishment trial, the well-known, two-step
Strickland v. Washington
test still applies. The court must determine whether the decisions made by counsel were professionally unreasonable under all the circumstances and, if so, whether the professionally-unreasonable error or omission resulted in prejudice to the defense. Where decisions are made for tactical or strategic reasons, strong deference is accorded those decisions. Further, in the particular context of the penalty phase of a capital trial, prejudice focuses on whether “the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.”
Stevens v. Zant,
968 F.2d 1076 (11th Cir.1992),
cert. denied,
— U.S. -, 113 S.Ct. 1306 , 122 L.Ed.2d 695 (1993)
(quoting Strickland v. Washington,
466 U.S. 668, 695 , 104 S.Ct. 2052, 2069 , 80 L.Ed.2d 674, 698 (1984)). An attorney’s decisions may be professionally unreasonable if it is outside the wide range of competence expected of attorneys. The court should presume effectiveness, however, and should avoid second-guessing with the benefit of hindsight.
See Strickland v. Washington, supra; Horton v. Zant,
941 F.2d 1449 (11th Cir.1991);
Elledge v. Dugger,
823 F.2d 1439 (11th Cir.1987). Even where there has been a showing of a professionally-unreasonable error or decision, it must prejudice the defense before it amounts to ineffectiveness. Prejudice is shown if there is a reasonable probability that the outcome of the proceeding would have been different had the unreasonable error not occurred. That is to say, the error undermines confidence in the outcome of the proceeding.
See Strickland v. Washington, supra.
In the particular context of the sentencing phase of a capital case, the focus is on whether “the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.”
Strickland v. Washington, supra
466 U.S. at 695, 104 S.Ct. at 2069 ;
Stevens v. Zant, supra.
Although probably a distinction without a difference, petitioner alleges that his attorneys were constitutionally ineffective because they failed to conduct a reasonable investigation to uncover mitigating evidence and because they failed to present mitigating evidence that was available to them. While the failure to present mitigating evidence
*915
during the penalty phase of a capital trial is not ineffectiveness per se,
see Burger v. Kemp,
483 U.S. 776 , 107 S.Ct. 3114 , 97 L.Ed.2d 638 (1987);
Stevens v. Zant, supra,
the Eleventh Circuit Court of Appeals has developed a three-step test for assessing the professional reasonableness of an attorney’s failure to present mitigating evidence. That analysis has been described as follows:
The steps for proper analysis of an ineffective assistance of counsel claim in a case such as this are well-established. Under
Strickland v. Washington,
466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), counsel is deemed to have been ineffective when his acts or omissions were outside the wide range of professionally-competent assistance. An attorney has a duty to conduct a reasonable investigation, including an investigation of the defendant’s background, for possible mitigating evidence.
Thompson v. Wainwright,
787 F.2d 1447, 1451 (11th Cir.1986).
First,
it must be determined whether a
reasonable investigation
would have uncovered such mitigating evidence. If so, then a determination must be made whether the failure to put this evidence before the jury was a
tactical choice
by trial counsel. If so, such a choice must be given a strong presumption of correctness, and the inquiry is generally at an end.
Funchess v. Wainwright,
772 F.2d 683, 689-90 (11th Cir.1985). If, however, the failure to present mitigating evidence was an oversight, and not a tactical decision, then a
harmlessness review
must be made to determine if there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Thus, it must be determined that defendant suffered
actual prejudice
due to the ineffectiveness of his trial counsel before relief will be granted.
Middleton v. Dugger,
849 F.2d 491, 493 (11th Cir.1988);
see also Blanco v. Singletary,
943 F.2d 1477 (11th Cir.1991). The first step of the analysis is a determination whether there existed, in fact, mitigating evidence that a reasonable investigation would have uncovered. Implicit in this proposition is the assumption that there can be mitigating evidence which a reasonable investigation fails to uncover. The attorney’s duty under the Sixth Amendment is to conduct a
reasonable
investigation, not such an exhaustive investigation that all conceivable mitigating evidence is necessarily uncovered. As both the Supreme Court and the Eleventh Circuit have noted, the attorney is not necessarily required to investigate every evidentiary lead; an attorney’s decision to limit his or her investigation may be reasonable under the circumstances.
See Strickland v. Washington,
466 U.S. 668, 691 , 104 S.Ct. 2052, 2066 , 80 L.Ed.2d 674, 695 (1984);
Harris v. Dugger,
874 F.2d 756 (11th Cir.1989);
Bush v. Singletary,
988 F.2d 1082 (11th Cir.1993). Thus, the first step of the analysis actually involves two subsidiary questions: Did mitigating evidence, in fact, exist? and, Did trial counsel conduct a
reasonable
investigation to uncover the evidence?
The reasonableness of an investigation also must be assessed in light of all the circumstances. As the Supreme Court has said:
In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all of the circumstances, applying a heavy measure of deference to counsel’s judgment.
Strickland v. Washington,
466 U.S. 668, 691 , 104 S.Ct. 2052, 2066 , 80 L.Ed.2d 674, 695 (1984). One of the circumstances that bears upon the reasonableness of an investigation is the information supplied by counsel’s own client. Just as information supplied by the defendant may point to the need for further investigation, the
lack
of information supplied may also indicate that further investigation would be unnecessary or fruitless. Similarly, a client’s demand that counsel undertake or, even, refrain from a particular investigation bears upon the reasonableness of the investigation.
See Mulligan v. Kemp,
771 F.2d 1436 (11th Cir.1985). A client’s failure to disclose information to his attorney, as well as his refusal to assist the attorney, nécessarily must be considered in assessing
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the reasonableness of the investigation performed by counsel.
30
The second question presented by the analysis is whether the failure to present existing mitigating evidence was the product of an informed tactical decision or due to oversight.
See Middleton v. Dugger, supra.
While the
reasonableness
of a decision is a question of law for the habeas court, whether a decision constituted a tactical decision is a question of fact to which the presumption of correctness applies.
See Stevens v. Zant, supra; Horton v. Zant,
941 F.2d 1449 (11th Cir.1991);
Bundy v. Wainwright,
808 F.2d 1410 (11th Cir.1987).
Finally, if it is determined that counsel failed to present reasonably available mitigating evidence due to error or oversight, and not due to a tactical or strategic decision, ineffectiveness of counsel is established only if the petitioner also shows that the oversight caused actual prejudice. There must be a reasonable probability that the outcome of the sentencing proceeding would have been different if the mitigating evidence had been presented. Stated another way, there must be a reasonable probability that the sentences if presented with the mitigating evidence, would have determined that the balance of aggravating and mitigating circumstances leaned against imposition of the death penalty.
See Stevens v. Zant, supra.
The court concludes that the investigation undertaken by defense counsel to identify potential mitigating evidence was not professionally unreasonable. While the investigation was far from the most thorough, defense counsel made reasonable efforts to identify those factors in the petitioner’s history, background, and present circumstances that could be offered to the jury in mitigation of the death sentence. Even though they interviewed the petitioner for a total of approximately 12 to 15 hours and interviewed petitioner’s mother and sister, no one ever disclosed to counsel any instances of violent, physical, or sexual abuse or neglect suffered by the petitioner during his formative years. Although it is true that defense counsel knew that petitioner came from a large, poor family and, arguably, could have sought out each sibling and relative to interview, the lack of information supplied to them by petitioner himself and by petitioner’s
mother
and sister plainly indicated to them the fruitlessness of such a pursuit. It was not unreasonable for counsel to conclude, in the face of the lack of information supplied to them to that point, that there was little reason to continue seeking out other relatives to probe the petitioner’s background. As the Supreme Court has said:
[Strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgment. The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information ... and when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable.
Strickland v. Washington,
466 U.S. 668, 691 , 104 S.Ct. 2052, 2066 , 80 L.Ed.2d 674, 695-96 (1984).
The fact that petitioner and his family were not forthcoming with information concerning his background is confirmed not only
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by the testimony of defense counsel, but also by the presentence report prepared for use by the sentencing court. In that report, the investigating probation officer wrote the following about the petitioner’s family history:
Billy Wayne Waldrop was born 2-6-52 in Calhoun County, Alabama, is a product of a broken home in which there were apparently a number of father figures. However, until age 13 his natural father was in the home and since that time primarily his father image has been step-father Douglas Norman. There are no known instances of severe or traumatic events during adolescence which would have interfered with normal personality development and the home appears to have been economically within the low income level. Based on Waldrop’s subsequent behavior, however, whether his personality development up to this point has been normal is very much open to question.
See Trial Record, Volume I,
p. 67. Obviously, the extensive physical and sexual abuse described in the coram nobis testimony was not made known to the investigating probation officer at the time he prepared his pre-sentence report following the penalty phase of trial but before the sentencing hearing in March of 1983. Just as counsel was not aware of those aspects of his youth, so the probation officer was unaware. This appears to confirm the testimony by defense counsel that neither petitioner nor his family made that information available to them.
Further evidence of the reticence of the petitioner and his family arises in connection with petitioner’s alleged alcohol and drug abuse. At the coram nobis hearing, in fact, petitioner testified that he did not believe that his drug and alcohol use was any of his lawyers’ business. At page 156 of the coram nobis testimony, the petitioner himself testified as follows:
Q. Now, I want to take you to the time when you were — well, let me ask you this. Did you ever discuss any of these things, such as your childhood, your suicide attempts, being shot in the head, medication, any of those type things with your lawyers?
A. Referring to Hank Fannin and R.D. Pitts?
Q. Yes.
A. No, I haven’t.
Q. Why didn’t you tell them about that? A. Well, I really didn’t think it would be important. Besides the fact, to sit up here, you know, and tell you that your dad was a homosexual and your uncle was a homosexual and your sister was a child molester. That’s something I held within me for years, that I kept to myself. I didn’t feel, or even know that it could be used.
See Coram Nobis Hearing Transcript, Volume II,
p. 156. Later, on cross-examination, he once again testified:
Q. You never told Mr. Fannin and Mr. Pitts you drank, did you?
A Mr. Fannin knew I drank.
Q. You never told him that you drank from the time you got up in the morning until you went to bed at night or passed out?
A. I don’t think he ever asked me.
Q. But you never told him that. You never told him that you had a drinking problem, did you?
A. I didn’t feel it was any of his business.
Q. You testified on direct examination you use drugs. A variety of drugs. That you were addicted to cocaine and several other things.
A. Yes.
Q. You never told Mr. Fannin or Mr. Pitts that you used drugs or that you were addicted to any drugs, did you?
A. Mr. Fannin knew I was using drugs.
Q. Did you tell him you were using drugs?
A. Yeah, he knew that ..
Q. All these things we have talked about, the abuse, the sexual abuse, the physical abuse, you never told Mr. Fannin and Mr. Pitts any of these things that you allege in this petition should have been brought out at the trial as mitigation, did you?
A. No, I didn’t.
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See Coram Nobis Hearing Transcript, Volume II,
p. 195-196.
Finally, the evidence and findings of fact made by the trial court also established that a reasonable investigation was undertaken with respect to the neurological damage petitioner allegedly suffered due to the gunshot wound to his head. Defense counsel contacted the neurosurgeon who had treated petitioner at the University of Alabama Birmingham Hospital, who told counsel that petitioner had recovered well from the injury. He further explained that the gunshot wound was to a “silent” portion of the brain which would not trigger rage, seizures, or other conduct relating to petitioner’s criminality. In short, the neurosurgeon explained to defense counsel that the gunshot wound could not be offered as an excuse for petitioner’s murderous behavior. In light of that information, defense counsel’s decision to preter-mit further investigation in this area was professionally reasonable because it appeared to be fruitless if not harmful to the petitioner.
Similarly, the decisions made by counsel not to present the testimony of the petitioner, his mother, and Dr. Zeiger for purposes of mitigation during the penalty phase of the trial were reasonable and did not amount to ineffectiveness. The petitioner already had told his attorneys that he did not want to be sentenced to life without parole but wished to receive the death penalty. Given that posture by the petitioner, counsel’s decision not to put him on the witness stand was professionally reasonable because they could not run the risk that the petitioner would tell the jury that he wanted the death penalty rather than a life sentence. Likewise, they could not offer the testimony of the petitioner’s mother because, at that time, she was openly hostile to petitioner. During the guilt phase of the trial, petitioner, his attorneys, and his mother all met in a small witness room. There, petitioner’s mother berated him, saying that he had brought disgrace upon her name and that he deserved to receive whatever he got. Mr. Pitts testified as follows:
Q. During the course of the trial, did you have an occasion to witness a discussion between, or overhear a discussion between Billy Wayne Waldrop and his mother?
A. Yes, sir, I did. I remember quite vividly, it was here in the room off to the left. The door shut and it was in privacy, he wanted to see his mother. He asked if he could see her. We approached the deputies and asked if she could be brought back. She was brought back and both Mr. Fannin and I were present, along with Mr. Waldrop and his mother.
Q. Excuse me. About when was this?
A. I think it was maybe two days into the trial, as I recall.
Q. Excuse me for interrupting, go ahead.
A. Now, I didn’t take any notes on this. I don’t always take notes on everything that happens. But I remember this quite vividly. And she was extremely irate. She was angry with him because she said that he had dragged her name down. That he had disgraced her. She said that he had always been a disgrace and went into a tirade about his supposed meanness and this sort of thing, and had no sympathy with him whatsoever.
Q. Did this influence your decision or influence you in any way in deciding whether or not to call his mother as a witness d

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2008185. Public record. Not legal advice.