“Courts consistently have concluded that a petitioner who, for whatever reason, chooses not to raise a Fourth Amendment issue on appeal has not been deprived of a full and fair opportunity to litigate the claim.”
How later courts described this case
- “Courts consistently have concluded that a petitioner who, for whatever reason, chooses not to raise a Fourth Amendment issue on appeal has not been deprived of a full and fair opportunity to litigate the claim.”
- “A federal habeas petitioner, however, in some instances may escape the rule articulated in Stone … on the basis of a denied opportunity, if he or she is prevented from litigating a Fourth Amendment claim ‘by reason of unconscionable breakdown in the underlying process.’”
Written by the judges who cited it.
The opinion
MEMORANDUM OPINION AND ORDER
DE MENT, Senior District Judge.
I. INTRODUCTION
This cause is before the court on Petitioner Timothy Charles Davis’ (“Davis”) petition for writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254 , for a decision on the merits.
1
Davis, who was seventeen years old at the time of the offense, was convicted of murder by a jury in an Alabama state court and sentenced to death. The judgment of conviction and sentence of death were affirmed on direct review, and Davis’ petition was rejected by state collateral proceedings.
In the present proceeding, timely brought pursuant to 28 U.S.C. § 2254 , Davis challenges the constitutional validity of his judgment of conviction and sentence of death. In light of the Supreme Court of the United States’ decision in
Roper v. Simmons,
which held that the execution of individuals who were under the age of eighteen at the time of their capital crimes is prohibited by the Eighth and Fourteenth amendments, Davis is no longer eligible for the death penalty.
See
543 U.S. 551 , 125 S.Ct. 1183 , 161 L.Ed.2d 1 (2005). Because Davis’ sentence of death is unconstitutional under
Roper,
as discussed herein, Davis is due habeas corpus relief with respect to his sentence of death to the extent that the court must grant Davis’ petition, unless the State of Alabama vacates or sets aside Davis’ death sentence and sentences Davis to life imprisonment without the possibility of par role.
In his petition, Davis also raises guilt-phase claims challenging the validity of his judgment of conviction. After careful consideration of the arguments of counsel, the relevant law and the record as a whole, the court finds that, as to Davis’ guilt-phase claims, Davis’ writ is due to be denied pursuant to 28 U.S.C. § 2254 (d) because the decisions of the Alabama courts were not contrary to or an unreasonable application of clearly established, controlling Supreme Court precedent, and were not based on an unreasonable determination of the facts.
II. BACKGROUND
A.
Procedural History
The following presents a synopsis of the procedural history of this case. Davis was tried before a jury in the Circuit Court of Coosa County, Alabama, on a charge of capital murder, namely, the intentional killing during a robbery of Mrs. Avis F. Alford (“Mrs.Alford”). On June 13, 1980, the jury returned a verdict of guilty against Davis for capital murder, and, pursuant to § 13-ll-2(a) of the Alabama Code, the predecessor to § 13A-5-40(a), fixed his punishment at death by electrocution. Pursuant to former Alabama Code §§ 13-11-3 and -4 (repealed and replaced by § 13A-5-45 and -47), after a separate sentencing hearing held on July 14, 1980, the Honorable Kenneth F. Ingram, who presided as the trial and sentencing judge, imposed a sentence of death consistent with the jury’s determination.
See Davis
*1143
v. State,
554 So.2d 1094, 1103 (Ala.Crim. App.1984).
Davis’ judgment of conviction originally was reversed on appeal and remanded for a new trial on the authority of
Beck v. Alabama, 447
U.S. 625, 100 S.Ct. 2382 , 65 L.Ed.2d 392 (1980).
See Davis v. State,
408 So.2d 532 (Ala.Crim.App.1981) (per curiam), ce
rt. denied,
408 So.2d 533 (Ala.1982). The Supreme Court of the United States, however, granted the State’s petition for certiorari, vacated the judgment of the Alabama Court of Criminal Appeals, above, and remanded the case for further consideration in light of
Hopper v. Evans,
456 U.S. 605 , 102 S.Ct. 2049 , 72 L.Ed.2d 367 (1982).
See Alabama v. Ritter,
457 U.S. 1114 , 102 S.Ct. 2921 , 73 L.Ed.2d 1326 (1982).
Upon remand, the Alabama Court of Criminal Appeals affirmed Davis’ judgment of conviction and the sentence of death.
See Davis v. State,
554 So.2d 1094 (Ala.Crim.App.1984),
op. extended and reh’rg denied,
554 So.2d at 1109 . The judgment of the Alabama Court of Criminal Appeals was affirmed by the Supreme Court of Alabama. Ex parte
Davis,
554 So.2d 1111 (Ala.1989). Davis’ application for rehearing was overruled on September 28, 1990.
Davis v. State,
569 So.2d 738 (Ala.1990). The Supreme Court of the United States denied certiorari on February 25, 1991.
Davis v. Alabama,
498 U.S. 1127 , 111 S.Ct. 1091 , 112 L.Ed.2d 1196 (1991).
On February 12, 1992, Davis, through counsel, filed a petition for relief from the judgment of conviction and sentence of death pursuant to Rule 32 of the Alabama Rules of Criminal Procedure. An amended petition was filed on November 18, 1994, and an evidentiary hearing was conducted by the Circuit Court of Coosa County on September 1, 1995. On September 29, 1995, Davis filed a motion to amend the Rule 32 petition, to which the State filed a written objection on October 28, 1995. The Rule 32 trial court did not rule on whether the motion to amend was accepted or rejected. On February 3, 1997, the Rule 32 trial court denied Davis’ petition. The Alabama Court of Criminal Appeals affirmed the judgment of the Rule 32 trial court, denying Davis’ Rule 32 petition,
Davis v. State,
720 So.2d 1006 (Ala. Crim.App.1998), and the Supreme Court of Alabama denied certiorari. Thereafter, on February 22, 1999, the Supreme Court of the United States denied certiorari.
Davis v. Alabama,
525 U.S. 1149 , 119 S.Ct. 1049 , 143 L.Ed.2d 55 (1999).
Davis’ extensive post-trial proceedings culminated in the filing of his timely habe-as petition in this court on April 28, 1999, pursuant to 28 U.S.C. § 2254 . During stage I of the proceedings, the court determined which of Davis’ claims could be heard on the merits.
(See
Doc. No. 68.
2
) During these stage II proceedings, the court now decides the merits of the claims which are not procedurally barred.
B.
The Crime
The crime of which Davis was convicted involves horrific instances of brutality, sodomy and murder. In
Davis v. State,
the Alabama Court of Criminal Appeals, in its decision affirming Davis’ judgment of conviction on direct appeal, succinctly summarized the facts which were adduced at trial.
See
554 So.2d 1094 , 1097-98 (Ala.Crim. App.1984). The court quotes from the
Davis
opinion:
On July 20, 1978, between 4:30 p.m. and 5:30 p.m., at Alford’s Grocery in Coosa County, Alabama, 68-year-old Avis F. Alford was robbed, sodomized, and brutally murdered with a common steak knife. Her nude body was discovered at
*1144
approximately 5:30 p.m. inside her store next to the cash drawer counter, where she had been assaulted and stabbed in the back 17 times. The cash drawer was found open. The drawer contained no paper currency, but it did contain a few coins. Other coins were “scattered about” on the floor behind the counter. An autopsy revealed that Mrs. Alford had, indeed, died from the combination of knife wounds in her back, wounds which punctured her lungs and lacerated her aorta. She had lost a large volume of type “A positive” blood. Further analysis of samples taken during the autopsy revealed the presence of human sperm in the victim’s rectum.
Shortly after the murder, the appellant, accompanied by his wife and his mother, appeared at the murder scene and told the authorities that he had discovered Mrs. Alford’s body inside the store. He explained that when he realized she was dead, he “got scared and ran.” He later explained that in lifting the body he had “gotten blood all over” himself and that he had changed clothes at home before returning to report what he had seen. He also told the officers that on his way home after discovering the body he had seen two black men walking down the highway away from Alford’s store. However, when asked for a description of the two black men, the appellant “hemmed and hawed,” and could only state that one was tall and one was short.
Mrs. Alford was last seen alive inside the store at 4:30 p.m. A young white male on a motorcycle was seen riding into the parking lot at Alford’s Grocery at 5:05 p.m. The description of the motorcycle rider and the motorcycle generally matched the appearance of the appellant and his motorcycle on the day of the murder.
Curtis Smith identified the appellant in court. He testified that on the day of the murder, at approximately 5:30 p.m., he saw the appellant riding his motorcycle at the Covered Bridge a few miles from Alford’s store. He saw the appellant ride past the bridge, and he heard the motorcycle stop and “quiet down” for several minutes before the appellant returned to the bridge. The appellant stopped and told Smith that he, the appellant, had “taken a spill” on his motorcycle. The appellant was wearing a brown T-shirt and blue jeans and had blood on his right hand and arm and on his jogging shoes. He was bleeding from underneath one of his fingernails. He “pulled down to the rocks” beside the creek, washed off the blood, and rode away.
During the investigation immediately following the murder, Mrs. Alford’s wallet, which had been taken during the robbery-murder, was found in the woods a short distance past the Covered Bridge where Smith had seen the appellant. The investigating officers testified that, after talking with Smith, they drove slowly down the road and found, at the entrance to an old logging road, a disturbance in the dirt of the type a motorcycle would make “spinning out.” They searched the area and found the wallet.
Using metal detectors, the investigating officers also found, in the field across the highway from Alford’s Grocery, the murder weapon, a steak knife covered with type “A” human blood. Similar knives were seen in the kitchen of appellant’s residence.
The results of physical examinations and chemical analyses of the clothes the appellant was wearing at the time Mrs. Aford was murdered, including his motorcycle helmet, were particularly incriminating. Splattered blood was found on his motorcycle helmet and smeared and splattered blood was found on his blue jeans and shoes. Blood was
*1145
smeared on and around the button and the button hole used to fasten the jeans at the waist. Blood stains were found on the outside and on the inside of the jeans in the waist area. Bloodstains were also found in the area of the right knee and the lower leg. All of the stains of sufficient size to permit typing were type “A” human blood, whereas appellant’s blood type is type “0.”
A small bloodstain was found on the inside of appellant’s undershorts. On the outside of his undershorts in the area of the crotch there was a large yellowish-brown stain. This stain was a combination of human sperm mixed with fecal matter and human tissue of the type found inside the rectum.
In addition to this overwhelming circumstantial evidence against the appellant, the state presented evidence of an alleged confession by the appellant to Tracy Bignault, a fellow inmate of the appellant during appellant’s incarceration prior to trial. Bignault testified that the appellant admitted robbing and killing Mrs. Alford. Bignault related to the jury a detailed account of the crime as it was, allegedly, confessed to him by the appellant. Bignault’s testimony was consistent with the state’s circumstantial evidence. On cross-examination, however, Bignault admitted that in his original statement to the authorities he had left out many of the details. He explained that he did not tell the authorities the whole truth at that time because he was scared.
Appellant’s apparent motive for the crime was presented through the testimony of Steve Colvin. Colvin had sold the appellant the motorcycle the appellant was riding on the day of the murder, but the appellant had not made timely payments for it. At work on the morning of the murder, Colvin told the appellant that he, Colvin, needed some of the money the next day.
The appellant presented a defense in the nature of an alibi. On the day of the murder he was living in his grandmother’s home with his wife, his mother, and his grandmother. He had been living there for approximately five weeks. His mother testified that the appellant came home from work at 4:00 p.m. and ate supper with the family as usual. James Richardson, a young black boy in the neighborhood, borrowed appellant’s motorcycle shortly after the appellant came home from work and did not return it until 5:15 p.m. The appellant, then, took Richardson home and returned at 5:17 p.m. The appellant left again and returned at 5:40 p.m. He told his mother to call the police because he had found a dead woman inside Alford’s Grocery. After she had changed clothes, she immediately drove the appellant back to the store, where the appellant told the authorities what he had seen. On cross-examination appellant’s mother admitted that she had never told the authorities about James Richardson, and she could not remember the appellant saying anything about going down to the Covered Bridge before returning home from Alford’s Grocery. She also admitted that the family had some knives similar in appearance to the murder weapon, but stated that their knives were not the same size. Some were larger and some were smaller than the murder weapon. Appellant’s theory in defense was that someone else robbed and killed Mrs. Alford, that he got blood on himself when he found her body, and that Big-nault was lying and had fabricated appellant’s alleged confession in order to “make a deal” with the authorities.
Id.
III. FEDERAL HABEAS CORPUS STANDARD OF REVIEW
Because Davis is in state custody, his application for habeas review is controlled
*1146
by 28 U.S.C. § 2254 . The amendments to 28 U.S.C. § 2254 (d), which were enacted in 1996 as part of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), govern the court’s review of the claims in Davis’ petition for writ of habeas corpus.
See Nelson v. Alabama,
292 F.3d 1291, 1294 (11th Cir.2002) (a petition for habeas corpus filed after the effective date of the AEDPA is governed by 28 U.S.C. § 2254 (d)). The AEDPA sets forth a “ ‘highly deferential standard for reviewing state court judgments.’ ”
Jamerson v. Sec’y for Dep’t of Corrs.,
410 F.3d 682, 687 (11th Cir.2005) (quoting
Parker v. Sec’y for Dep’t of Com.,
331 F.3d 764, 768 (11th Cir.2003)).
Pursuant to 28 U.S.C. § 2254 (d), the court may grant habeas relief to a person in state custody, such as Davis, only if that person demonstrates that a claim “adjudicated on the merits” by the state court
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254 (d). The purposes behind § 2254(d)’s limited parameters of review of state court judgments are twofold, the first being “to prevent ‘retrials’ on federal ha-beas,” and the second being “to give effect to state convictions to the extent possible under law.”
Williams v. Taylor,
529 U.S. 362 , 386
&
404, 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000);
see also Bell v. Cone,
535 U.S. 685, 693 , 122 S.Ct. 1843 , 152 L.Ed.2d 914 (2002). The deferential review, recited in § 2254(d), applies even where the state court summarily rejects a federal claim.'
See Herring v. Sec’y for Dep’t of Com.,
397 F.3d 1338, 1347 (11th Cir.2005) (“even a summary, unexplieated rejection of a federal claim qualifies as an adjudication entitled to deference under § 2254(d)”).
By its express terms, § 2254(d)(1) confines the source of “clearly established Federal law” to decisions of the Supreme Court of the United States.
See Williams,
529 U.S. at 381 -82 & 412, 120 S.Ct. 1495 . In
Williams ,
the Supreme Court interpreted § 2254(d)(l)’s limitation as to the source of authority as encompassing “the holdings, as opposed to the
dicta,
of [the Supreme Court’s] decisions as of the time of the relevant state-court decision.”
Id.
at 412, 120 S.Ct. 1495 ;
see also Wiggins v. Smith,
539 U.S. 510, 542 , 123 S.Ct. 2527 , 156 L.Ed.2d 471 (2003). Section 2254(d)(1), however, does not “ ‘limit the federal courts’ independent interpretive authority with respect to federal questions.’ ”
Williams,
529 U.S. at 412 , 120 S.Ct. 1495 (quoting
Lindh v. Murphy,
96 F.3d 856, 869 (7th Cir.1996)), and “rules of law may be sufficiently clear for habeas purposes even when they are expressed in terms of a generalized standard rather than as a bright-line rule.”
Id.
at 382, 120 S.Ct. 1495 .
Decisions emanating from claims adjudicated by state courts are deemed in aberration of “clearly established Federal law” only if one of two conditions is satisfied: The decision is (1) “contrary to” or (2) “involved an unreasonable application of’ the “clearly established Federal law.” 28 U.S.C. § 2254 (d)(1);
Williams,
529 U.S. at 404 , 120 S.Ct. 1495 . These two phrases— “contrary to” and “unreasonable application” — have “independent meaning.”
Williams,
529 U.S. at 404 , 120 S.Ct. 1495 . A state court decision is contrary to “clearly established federal law” when the state court “applies a rule that contradicts the governing law set forth in [Supreme Court] cases” or “confronts a set of facts that are materially indistinguishable from
*1147
a decision of th[e] [Supreme Court],” but nonetheless reaches a different result.
Id.
at 405-06 , 120 S.Ct. 1495 .
With respect to the “unreasonable application” scenario, the standard is one of objective unreasonableness.
See id.
at 409 , 120 S.Ct. 1495 . “[W]hen a state-court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner’s case, a federal court applying § 2254(d)(1) may conclude that the state-court decision falls within that provision’s ‘unreasonable application’ clause.”
Id.
Additionally, a state court decision involves an unreasonable application of controlling law where, “under clearly established federal law, the State court was unreasonable in refusing to extend the governing legal principle to a context in which the principle should have controlled.”
Ramdass v. Angelone,
530 U.S. 156, 164 , 120 S.Ct. 2113 , 147 L.Ed.2d 125 (2000);
see also Williams,
529 U.S. at 408 , 120 S.Ct. 1495
At the same time, the
Williams
Court recognized that “[t]he term ‘unreasonable’ is no doubt difficult to define.” 529 U.S. at 410 , 120 S.Ct. 1495 . “[T]he most important point,” for purposes of the ruling in
Williams ,
is that “unreasonable” differs from an incorrect or erroneous application of Supreme Court jurisprudence.
Id.
Under the unreasonable application prong, the “habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.”
Id.
at 411 , 120 S.Ct. 1495 ;
see also Lockyer v. Andrade,
538 U.S. 63, 75 , 123 S.Ct. 1166 , 155 L.Ed.2d 144 (2003) (“The ‘unreasonable application’ clause requires the state court decision to be more than incorrect or erroneous. The state court’s application of clearly established law must be objectively unreasonable.”) (citation omitted).
As stated, the AEDPA also permits a court to grant a writ if the court concludes that the state court’s adjudication of the claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the [s]tate court proceeding.” 28 U.S.C. § 2254 (d)(2). Relevant to § 2254(d)(2)’s analysis is the restriction delineated in 28 U.S.C. § 2254 (e): “A state court’s determinations of fact shall be ‘presumed to be correct,’ and the habeas petitioner ‘shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.’ ”
Parker v. Head,
244 F.3d 831 , 835-36 (11th Cir.2001) (quoting 28 U.S.C. § 2254 (e)(1)). As pronounced in
Miller-El v. Cockrell,
[flactual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding, § 2254(d)(2).
537 U.S. 322, 340 , 123 S.Ct. 1029 , 154 L.Ed.2d 931 (2003);
see also Lenz v. Washington,
444 F.3d 295, 300 (4th Cir.2006) (discussing interrelatedness between 28 U.S.C. § 2254 (d)(2) and 28 U.S.C. § 2254 (e)(1) as “indicated” by Supreme Court precedent). The presumption “applies equally to factual determinations made by the state trial and appellate courts.”
Bui v. Haley,
321 F.3d 1304, 1312 (11th Cir.2003). On the other hand, “the statutory presumption of correctness applies only to findings of fact made by the state court, not to mixed determinations of law and fact.”
Parker,
244 F.3d at 836.
In addition to the foregoing law governing the standard of review, one oth
*1148
er legal premise is noteworthy. The federal habeas writ is not available to correct violations of state law. “[A] habeas petition grounded on issues of state law provides no basis for habeas relief’ pursuant to 28 U.S.C. § 2254 (d).
Branan v. Booth,
861 F.2d 1507, 1508 (11th Cir.1988). The federal writ is available only if the violation of state law “raises federal constitutional problems.”
Wilcox v. Ford,
813 F.2d 1140 , 1145 n.7 (11th Cir.1987). Thus, whether or not the state court erred under Alabama law in its rulings at Davis’ trial is “largely beside the point” in the court’s analysis.
Jammed v. Van de Kamp,
926 F.2d 918, 920 (9th Cir.1991).
IV. DISCUSSION
Davis seeks habeas corpus relief as to his sentence of death based upon the Supreme Court’s recent decision in
Roper, supra,
and the court addresses this claim first. Davis also has raised and briefed six constitutional guilt-phase claims attacking the validity of his judgment of conviction which the court will address in the order in which the claims are asserted by Davis.
See Clisby v. Jones,
960 F.2d 925, 936 (11th Cir.1992) (holding that district court must resolve all claims for relief premised on alleged constitutional violations which are raised in a petition for writ of habeas corpus whether habeas relief is granted or denied).
A.
Davis’Sentence of Death
This case no longer involves implication of the death penalty. During the pen-dency of the present action, the Supreme Court of the United States granted certio-rari to consider “whether it is permissible under the Eighth and Fourteenth Amendments to the Constitution of the United States to execute a juvenile offender who was older than 15 but younger than 18 when he committed a capital crime.”
Roper v. Simmons,
543 U.S. 551, 555-56 , 125 S.Ct. 1183 , 161 L.Ed.2d 1 (2005);
Roper v. Simmons,
540 U.S. 1160 , 124 S.Ct. 1171 , 157 L.Ed.2d 1204 (2004) (granting petition for writ of certiorari to the Supreme Court of Missouri). Based on the Supreme Court’s decision to decide this issue and the fact that the Court’s ultimate decision would likely inform the merits of the issues pertaining to Davis’ sentence of death, the court stayed consideration of the instant petition pending the Supreme Court’s ruling.
(See
Doc. No. 89.)
On March 1, 2005, the Supreme Court issued its opinion, holding that “[t]he Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.”
Roper,
543 U.S. at 579 , 125 S.Ct. 1183 . The bright-line holding in
Roper
abrogated the Supreme Court’s earlier decision in
Stanford v. Kentucky,
492 U.S. 361 , 109 S.Ct. 2969 , 106 L.Ed.2d 306 (1989), wherein the Court held that the Constitution did not bar the imposition of the death penalty for offenders who were older than the age of sixteen.
By order filed on March 4, 2005, this court directed the parties to file briefs addressing all issues remaining for review on the merits and discussing the effect of the Supreme Court’s decision in
Roper
on Davis’ death penalty claims, including his claim that the execution of offenders who were under the age of eighteen at the time their crimes were committed is unconstitutional. (Doc. No. 90 at 16-17.) On June 2, 2005, the State filed a supplemental brief conceding,
albeit
reluctantly, that the death penalty could not be imposed against Davis because he was under the age of eighteen when Mrs. Alford was robbed, murdered and sexually assaulted, crimes for which Davis has been convicted.
(Id.
at 17.)
The parties do not dispute that Davis was seventeen years old when Mrs. Alford was murdered, and the record amply sup
*1149
ports this uncontested fact. Davis’ certifí-cate of birth shows that Davis was born on March 18, 1961.
(See
Doc. No. 92, Ex. 1.) Mrs. Alford was murdered seventeen years later on July 20, 1978. The decisions of the state courts also contain references to Davis’ age at the time of the offense.
See, e.g.,
Ex parte
Davis,
554 So.2d 1111, 1113-14 (Ala.1989) (acknowledging Davis’ age in context of considering his claim that Eighth Amendment barred his execution);
id.
at 1110 (“In its finding of facts, the trial court found as mitigating circumstances the fact that the appellant had no significant history of any prior criminal activity and was 17 years old at the time of the offense.”);
Davis v. State,
554 So.2d 1094, 1107 (Ala.Cr.App.1984) (accepting “stipulations
oí
the State and defendant that the defendant was 17 years of age ... at the time the offense was committed”).
Applying the Supreme Court’s decision in
Roper
to the undisputed fact that Davis was seventeen years old at the time the murder was committed, the court finds that Davis’ sentence of death is unconstitutional. Pursuant to an Alabama statute, an individual convicted of a capital offense must be sentenced to death or life imprisonment without the possibility of parole.
See
Ala.Code § 13A-5-39(l) (defining “capital offense” as “[a]n offense for which a[ ] defendant shall be punished by a sentence of death or life imprisonment without parole according to the provisions of this article”);
id.
§ 13A-5-40(a) (listing and defining Alabama’s capital offenses). Because the sentence of death is no longer constitutionally valid, the only sentencing alternative is life without parole.
See Adams v. State,
— So.2d-, 2006 WL 1216740, *1 (Ala.Cr.App. April 28, 2006) (holding unconstitutional defendant’s sentence of death based upon the holding in
Roper, supra,
and “remand[ing] for the Montgomery Circuit Court to set aside [the defendant’s] death sentence and to sentence him to the only other sentence available — life in the penitentiary without the possibility of parole”).
Davis’ petition, therefore, is due to be granted as to his sentence of death to the extent that the court must grant the petition, unless the State of Alabama sets aside Davis’ death sentence and imposes a sentence of life imprisonment without the possibility of parole. Consequently, the court finds, and Davis concedes
(see
Doc. No. 92 at 2, 7), that the remaining claims regarding the penalty phase of Davis’ trial now are moot.
See LeCroy v. Secretary, Florida D.O.C.,
421 F.3d 1237, 1239-40 (11th Cir.2005) (dismissing as moot defendant’s § 2254 petition, challenging his death sentence, where his death sentence was vacated pursuant to
Roper v. Simmons
because the defendant was seventeen years old at the time of his offenses). The court, thus, need only address Davis’ claims pertaining to his guilt and the validity of the judgment of conviction.
B.
Claims B and C: Davis’ Claims that He Was Denied His Fourth Amendment Right to a Fair and an Impartial Judge
1. Arguments of Counsel
In Claims B and C, Davis contends that, in the proceedings in his case in juvenile court, including the hearings governing detention, probable cause and juvenile transfer, he was denied due process, as guaranteed by the Fourteenth Amendment to the United States Constitution, because the presiding judge, Robert Teel, Jr. (“Judge Teel”), and the prosecutor, Frank Teel, are brothers. (Doc. No. 92 at 7.) Frank Teel was the assistant district attorney who participated in all stages of Davis’ prosecution. Because Davis was a juvenile when arrested, the initial proceedings were held in juvenile court. Judge Teel presided over the hearings in juvenile court, including two detention hearings held on July 25, 1978, and September 26, 1978, and a juve
*1150
nile transfer hearing held on November 17, 1978, after which Davis’ case was transferred by Judge Teel to adult court.
Davis asserts that the state court “upheld the participation of the Teel brothers in this case” based solely on the application of Alabama law, but that the decision is “contrary to and an unreasonable application of’ Davis’ clearly established federal rights to “due process,” “a fair and impartial judge,” and “proceedings free from the appearance of impartiality.” (Doc. No. 95 at 7);
(see also
Doc. No. 92 at 8-9 (same).) In support of his argument, Davis relies on four United States Supreme Court opinions which he says clearly establish that the “appearance of impartiality” violates due process rights under the United States Constitution. (Doc. No. 29 at 9, citing
Turney v. Ohio,
278 U.S. 510 , 47 S.Ct. 437 , 71 L.Ed. 749 (1927);
Offutt v. U.S.,
348 U.S. 11 , 75 S.Ct. 11 , 99 L.Ed. 11 (1954); In re
Murchison,
349 U.S. 133 , 75 S.Ct. 623 , 99 L.Ed. 942 (1955); and
Ward v. Village of Monroeville,
409 U.S. 57 , 93 S.Ct. 80 , 34 L.Ed.2d 267 (1972));
(see also
Doe. No. 95 at 6.) Based on these four Supreme Court decisions, Davis contends that, even where evidence of actual bias is lacking, the “appearance of impartiality” violates the Due Process Clause of the United States.
The State, on the other hand, contends that Davis’ claim does not rise to the level of a due process violation because there was no evidence of actual or inherent bias presented during the state court proceedings. It points out that, on direct appeal, the Alabama Court of Criminal Appeals’ independent scrutiny of the record uncovered no such evidence of bias. (Doc. No. 94 at 18-19, citing
Davis v. State,
554 So.2d 1094, 1099 (Ala.Crim.App.1984).)
Moreover, the State asserts that, pursuant to 28 U.S.C. § 2254 (d)(1), in order for Davis to demonstrate that the state court’s decision is “contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States,” Davis must cite precedent which is “identical at a high degree of specificity.”
(Id.
at 19-20.) The State says, however, that none of the Supreme Court decisions cited by Davis “supports his claim” with the requisite degree of factual specificity “that a judge must under the Due Process Clause of the Fourteenth Amendment disqualify himself from adjudicating a preliminary hearing and juvenile transfer hearing in which the judge’s brother is the assistant district attorney.”
(Id.
at 22.) Relatedly, the State contends that the Supreme Court opinions cited “are off point as ‘clearly established precedent.’ ”
(Id.)
Accordingly, the State contends that 28 U.S.C. § 2254 (d) forecloses habeas relief on this claim.
2. The State Court Decision
The state court rejected Davis’ argument that Judge Teel, who presided over the preliminary proceedings in Davis’ case, including the hearing concerning Davis’ certification as an adult, should have
sua sponte
recused himself because he was the brother of Frank Teel, the assistant district attorney who appeared in some of the same proceedings against Davis.
See Davis,
554 So.2d at 1098. The Alabama Court of Criminal Appeals held that Judge Teel did not have to disqualify himself pursuant to the Canons of Judicial Ethics, state statute, or state common law. It reasoned that Judge Teel’s brother did not have an interest that could have been affected by the outcome of the proceedings, as required for disqualification under the Canons of Judicial Ethics, and he was not a “party” within the state statute governing disqualification of judges.
See id.
at 1098-99. The Alabama Court of Criminal Appeals also observed that the assistant district attorney’s salary “was not dependent upon the result of the litigation” and
*1151
that the district attorney “had no interest other than his ‘pride in the successful outcome’ of the proceedings.”
Id.
at 1099.
The Alabama Court of Criminal Appeals also rejected Davis’ argument that his rights were violated based on the alleged “inherent bias” of Judge Teel.
Id.
It emphasized that Davis did not challenge Judge Teel’s qualifications until more than two years after Judge Teel’s final action in the case and that Davis had presented “no evidence of actual bias.”
Id.
The court held that Davis failed to overcome the “presumption that a judge is qualified and unbiased.”
Id.
Notwithstanding Davis’ failure to submit evidence of actual bias, the Alabama Court of Criminal Appeals reviewed the record of both the preliminary and juvenile transfer hearings.
See id.
It, however, “found no evidence, whatsoever, of any bias against [Davis].”
Id.
To the contrary, the Alabama Court of Criminal Appeals observed that “the preliminary hearing resulted in an order ‘releasing the appellant from detention,’ a ruling favorable to [Davis].”
Id.
Furthermore, the Alabama Court of Criminal Appeals found that the facts adduced at the juvenile transfer hearing “well supported” Judge Teel’s discretionary decision to deny Davis’ motion for treatment as a youthful offender.
Id.
The court concluded that Judge Teel’s decision was not arbitrary, but was based upon a consideration of many factors, including the horrendous nature of the crime, the evidence that Davis absconded from the state after being released from detention following the preliminary hearing to be returned only through extradition proceedings, and the evidence that Davis confessed to a fellow inmate that he had murdered Mrs. Alford.
See id.
Moreover, during the post-conviction proceedings, the Alabama Court of Criminal Appeals similarly rejected Davis’ ineffective assistance of counsel claim predicated on his trial attorneys’ failure to move to recuse Judge Teel based on his kinship to the assistant district attorney. The Alabama Court of Criminal Appeals observed that Davis “still has not presented any evidence of actual bias on the part of the district judge.”
Davis,
720 So.2d at 1015 .
S. Analysis
a.) Threshold Issues Pertaining to the Standard of Review
Before discussing the merits, the court addresses two arguments raised by the parties pertaining to the standard of review. First, the court agrees with Davis’ position set forth in his reply brief (Doc. No. 95) that the fact-specific standard cited by the State applies only to the “contrary to,” and not to the “unreasonable application,” prong of 28 U.S.C. § 2254 (d)(1). As discussed in Section III of this Memorandum Opinion and Order,
supra,
§ 2254(d)(l)’s guideposts have independent meaning and require separate analysis. Accordingly, the court finds that the standard argued by the State does not apply to Davis’ claims which Davis bases on the “unreasonable application” prong of § 2254(d)(1).
Second, Davis is correct that the decision of the state courts discussed neither federal constitutional principles nor decisions from the Supreme Court of the United States. It is not fatal, however, that state law governed the state courts’ analysis so long as the decision does not violate the proscriptions of 28 U.S.C. § 2254 (d)(1).
See Mitchell v. Esparza,
540 U.S. 12, 16 , 124 S.Ct. 7 , 157 L.Ed.2d 263 (2003) (“A state court’s decision is not ‘contrary to ... clearly established Federal law simply because the court did not cite our opinions .... We have held that a state court need not even be aware of our precedents, ‘so long as neither the reasoning nor the result of the state-court decision contradicts them.’ ”) (citation omitted). The Su
*1152
preme Court reiterated this premise in
Bell v. Cone,
when it observed that “[federal courts are not free to presume that a State court did not comply with constitutional dictates on the basis of nothing more than lack of citation.” 543 U.S. 447, 455 , 125 S.Ct. 847 , 160 L.Ed.2d 881 (2005) (per curiam).
b.) The Merits
Those threshold matters having been addressed, the court turns to the merits of Davis’ claim. As stated, Davis contends that the proceedings before Judge Teel violated his rights to due process under the Fourteenth Amendment to the United States Constitution because Judge Teel was impartial given his kinship to the prosecutor.
The right to a trial before an impartial judge is a paramount concept of due process of law. The Due Process Clause of the Fourteenth Amendment guarantees Davis a right to a fair and an impartial judge who is neutral, detached and free from “actual bias.”
In re Murchison,
349 U.S. 133, 136 , 75 S.Ct. 623 , 99 L.Ed. 942 (1955);
see also Bracy v. Gramley,
520 U.S. 899, 905-06 , 117 S.Ct. 1793 , 138 L.Ed.2d 97 (1997) (“[T]he floor established by the Due Process Clause clearly requires a ‘fair trial in a fair tribunal,’ ... before a judge with no actual bias against the defendant or interest in the outcome of his particular case.”);
Ward,
409 U.S. at 59-63 , 93 S.Ct. 80 ;
Tumey,
273 U.S. at 532 , 47 S.Ct. 437 .
The court carefully has reviewed the four Supreme Court opinions relied upon Davis, i.e.,
Murchison, Tumey, Offutt
and
Ward .
(Doc. No. 29 at 9); (Doc. No. 95 at 6.) A summary of the facts and holdings of these opinions will aid the court’s discussion.
In
Murchison ,
which involved a judge who acted as a “one-man judge-grand jury,” 349 U.S. at 135 , 75 S.Ct. 623 , the Supreme Court held that a judge cannot “act as a grand jury” and then preside over the trial of the individuals accused by the grand jury because “[hjaving been a part of that process a judge cannot be, in the very nature of things, wholly disinterested in the conviction or acquittal of those accused.”
Id.
at 135, 137 , 75 S.Ct. 623 . The Supreme Court concluded that the judge’s actions offended the basic notion of due process that an accused receive “[a] fair trial in a fair tribunal.”
Id.
at 136 , 75 S.Ct. 623 . Citing,
Tumey, supra,
and
Offutt, supra,
the Supreme Court elaborated as follows:
Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered. This Court has said, however, that “Every procedure which would offer a possible temptation to the average man as a judge ... not to hold the balance nice, clear, and true between the State and the accused denies the latter due process of law.”
Tumey v. State of Ohio,
273 U.S. 510, 532 , 47 S.Ct. 437 , 71 L.Ed. 749 ... Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way “justice must satisfy the appearance of justice.”
Offutt v. United States,
348 U.S. 11, 14 , 75 S.Ct. 11 , 99 L.Ed. 11 .
Id.
Tumey
and
Ward ,
in turn, arose out of criminal trials in mayors’ courts in Ohio where the mayors also served as judges.
*1153
In
Tumey ,
after a trial without a jury in “Liquor Court,” as the court was “popularly called,” 273 U.S. at 521 , 47 S.Ct. 437 , the mayor of North College Hill convicted the defendant of possessing liquor, in violation of the state’s prohibition act.
Id.
at 514-16 , 47 S.Ct. 437 . By ordinance, part of the funds from Liquor Court was used to pay the mayor “his costs in each case in addition to his regular salary, as compensation for hearing such cases,” but only if the defendant was convicted.
Id.
at 520 , 47 S.Ct. 437 . Over the course of several months in 1923, the mayor collected $696.35 as costs from Liquor Court cases, in addition to his regular salary.
See id.
at 521-22 , 47 S.Ct. 437 . The Supreme Court held that the mayor should have been “disqualified” as the judge:
[I]t certainly violates the Fourteenth Amendment and deprives a defendant in a criminal case of due process of law to subject his liberty or property to the judgment of a court, the judge of which has a direct, personal substantial pecuniary interest in reaching a conclusion against him in his case.
Id.
at 523 , 47 S.Ct. 437 ;
see also id.
at 535, 47 S.Ct. 437 .
Apart from the mayor’s pecuniary interest in the outcome of the proceedings, due process also was violated given the may- or’s responsibilities for the fiscal-well being of his village. The Court opined: “With his interest as mayor in the financial condition of the village and his responsibility therefor might not a defendant with reason say that he feared he could not get a fair trial or a fair sentence from one who would have so strong a motive to help his village by conviction and a heavy fine?”
Id.
at 533-34 , 47 S.Ct. 437 . The Court held that the mayor, “by reason of his interest, both as an individual and as chief executive of the village, is disqualified to exercise it in the trial of the defendant.”
Id.
at 535 , 47 S.Ct. 437 .
Similarly, in
Ward ,
pursuant to a state statute, mayors were authorized to sit as traffic court judges. Exercising that statutory authority, the mayor in
Ward
convicted and fined the defendant for two traffic offenses.
See
409 U.S. at 57 , 93 S.Ct. 80 . The mayor’s town realized a “major part” of its revenue from traffic fines levied by the mayor in traffic court.
Id.
at 58 , 93 S.Ct. 80 . Relying on
Tumey ,
the Supreme Court held that, because the judge exercised significant financial control over the town’s finances and the fines collected in traffic court, the defendant was denied a trial before an “impartial,” “neutral and detached” judge, in violation of the Due Process Clause of the Fourteenth Amendment.
Id.
at 59, 62, 93 S.Ct. 80 .
Finally, in
Ojfutt,
the Supreme Court reversed the judgment of conviction because the trial judge, who invoked the use of summary contempt power post-trial, had become “personally embroiled” with the lawyer whom he held in contempt.
See
348 U.S. at 17 , 75 S.Ct. 11 . Citing the axiom that “justice must satisfy the appearance of justice,” the Court held that a trial judge whose “personal feeling[s]” about the lawyer are “entangled” with the “contempt charged” cannot summarily punish the lawyer for contempt after the completion of the trial, but instead must recuse himself or herself and permit another judge to adjudicate the contempt.
See id.
at 14, 17 , 75 S.Ct. 11 .
Davis contends that each of the foregoing Supreme Court decisions clearly establishes that due process “requires a judge to satisfy an ‘appearance of impartiality’ ” and that a judge’s sibling relationship to the prosecutor clearly offends the due process requirement of impartiality. (Doc. No. 95 at 6.) He cites language from those opinions, quoted above, including the phrases “justice must satisfy the appearance of justice” and due process does not
*1154
allow any “procedure” that “might lead [the] judge to hold the balance nice, clear and true between the state and the accused.” (Doc. No. 95 at 6-7 (quoting
Tumey,
273 U.S. at 532 , 47 S.Ct. 437 and
Murchison,
349 U.S. at 136 , 75 S.Ct. 623 ).)
Unquestionably,
Murchison, supra, Tu-rney, supra, Ward, supra,
and
Ojfutt, supra,
demonstrate that “[t]he requirement of [tribunal] neutrality has been jealously guarded by th[e] [Supreme] Court.”
Marshall v. Jerrico, Inc.,
446 U.S. 238, 242-43 , 100 S.Ct. 1610 , 64 L.Ed.2d 182 (1980) (citing
Murchison, Tumey, Ward
and Ofutt). The court, though, disagrees with Davis that the holdings in these opinions yield a violation of due process when applied to the facts of this case.
The court finds instructive and persuasive the Third Circuit’s opinion in
Johnson v. Carroll,
369 F.3d 253 (3rd Cir.2004), and the Seventh Circuit’s opinion in
Del Vecchio v. Illinois Department of Corrections,
31 F.3d 1363 (7th Cir.1994), as to the application of Supreme Court precedent under 28 U.S.C. § 2254 (d) to claims of judicial bias.
3
In
Johnson ,
the defendant brought a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (d)(1).
See
369 F.3d at 255 . Charged with kidnaping his estranged daughter, the- defendant argued that the judge should have sw
sponte
recused himself based upon an
ex parte
conversation the judge had with a former state prosecutor at a social gathering.
See id.
at 255-56 . In that conversation, the former state prosecutor remarked that the defendant was a “bad guy,” had “threatened” the state prosecutor, and that he hoped “justice was done” in the defendant’s pending criminal case.
Id.
at 255 .
The defendant argued that there was an “appearance of bias” on the part of the judge, given the occurrence of the out-of-court conversation, and he asserted that the failure of the judge to recuse himself violated his due process rights guaranteed by the Fourteenth Amendment.
Id.
The federal district court agreed with the defendant that “the trial judge’s failure to recuse himself
sua sponte
gave rise to an appearance of bias and that the appearance of bias violated his due process rights.”
Id.
at 258 . The defendant and the district court relied, in part, on the Supreme Court’s decision in
Murchison, supra.
The Third Circuit reversed.
For purposes of its analysis, the Third Circuit “assume[d] that there was an appearance of bias” and framed the issue as “whether the Supreme Court has ever held in any of its decisions existing at the time of the District Court’s judgment ... that an appearance of bias on the part of a state court judge, without more, violates the Due Process Clause of the United States Constitution.”
Id.
at 259 . After summarizing the facts and holding in
Murchison, supra,
the Third Circuit recited
*1155
the following language from the
Murchison
opinion:
The Court commented that although fairness certainly required “an absence of actual bias,” “our system of law has always endeavored to prevent even the probability of unfairness.”
Id.
The Court acknowledged that its “stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties.”
Id.
However, “to perform its high function in the best way justice must satisfy the appearance of justice.”
Id.
(internal quotation marks omitted).
Id.
at 259-60 (quoting
Murchison,
349 U.S. at 136 , 75 S.Ct. 623 ).
The Third Circuit rejected the conclusion, reached by the district court, that the foregoing language clearly established that any “appearance of bias” contravened the Due Process Clause.
Id.
The court explained:
In re
Murchison
does not stand for that broad conclusion. Instead, its holding, as opposed to dicta, is confined to the basic constitutional principle of prohibiting a judge from adjudicating a case where he was also an investigator for the government. The rest of the language quoted in the preceding paragraph merely explains the holding. Even a generalized reading of the holding, that a judge cannot adjudicate a case where he has an interest in the outcome, does not stand for the conclusion, drawn by the District Court and [the defendant], that a judge with an appearance of bias, without more, is required to recuse himself
sua sponte
under the Due Process Clause. [The defendant] has not alleged, and there is no evidence, that the trial judge here had a personal interest in the outcome of the sentence.
Id.
at 260 (brackets added). The
Johnson
court held that the fact that the judge had been exposed to disparaging remarks about the defendant through a third-party conversation with a former prosecutor did not fit within the parameters of the holding of
Murchison
and that the alleged bias of the judge arising from that conversation was insufficient, in and of itself, to rise to a constitutional level.
In
Del Vecchio ,
involving a 28 U.S.C. § 2254 (d) petition, the Seventh Circuit, on rehearing
en banc,
was presented with the issue of whether a state trial judge, who as a former state attorney had supervised the prosecution of the defendant for a murder fourteen years earlier, should have disqualified himself in a second murder trial in which the defendant was convicted and the judge imposed the death sentence.
See
31 F.3d at 1367-1369 . The defendant contended that the trial judge’s prior involvement in the defendant’s first murder case “created an appearance of bias.”
Id.
at 1370 . He argued that “a showing of actual bias or prejudice” was not a prerequisite to establishing a Fourteenth Amendment violation, but rather that he merely had to demonstrate that the “trial judge had some temptation to be biased in order to demonstrate an appearance of bias.”
Id.
The Seventh Circuit concluded that equating the Supreme Court’s “appearance of justice” language, such as found in
Murchison ,
with a holding that due process mandates a judge’s recusal “based solely on appearances” is an impermissible extension of the holdings from the Supreme Court.
Id.
at 1371. “Despite the Supreme Court’s broad pronouncements about the ‘appearance of justice,’ we cannot answer the due process question simply by concluding that it may have looked bad for [the trial judge] to preside at trial.”
Id.
“The Supreme Court has never rested the vaunted principle of due process on
*1156
something as subjective and transitory as appearance.”
Id.
at 1372. Rather,
[wjhen the Supreme Court talks about the “appearance of justice,” it is not saying that bad appearances alone require disqualification; rather, it is saying that when a judge is faced with circumstances that present “some [actual] incentive to find one way or the other” or “a real possibility of bias,” a court need not examine whether the judge actually was biased.
Id.
(citations omitted).
The Seventh Circuit’s conclusion was based on a careful examination of Supreme Court precedent. After analyzing the Su-pi-eme Court’s opinions in
Turney, Ward,
and
Murchison ,
among others,
see id.
at 1373-74, the Seventh Circuit observed that the “presumption of evenhandedness” was overcome only in those eases where the judges were subject to a “strong, direct interest in the outcome of a case.”
Id.
at 1373. In none of the opinions reviewed by the Seventh Circuit was disqualification based solely on the appearance of bias, and the decisions make clear that “not all ‘possible temptations’ toward bias require a judge to disqualify himself.”
Id.
at 1374.
The Seventh Circuit concluded that, under Supreme Court precedent, to demonstrate a Fourteenth Amendment due process violation,
&
defendant must show either “actual bias” or “an' influence or interest [the court] can conclusively presume would cause the average judge to be biased.”
Id.
at 1378, 1379. Neither was present in the defendant’s case.
See id.
at 1375-80;
Murchison,
349 U.S. at 136 , 75 S.Ct. 623 (“Fairness of course requires the absence of actual bias in the trial of cases.”).
Other courts have applied the foregoing standard to judicial bias cases.
See Harris v. State of Mo.,
960 F.2d 738, 740 (8th Cir.1992) (“Although Harris contends the trial judge’s refusal to disqualify himself ‘infected’ the trial, Harris has failed to show either actual or presumed bias by the trial judge rising to the level of a constitutional violation.”) (citing
Dyas v. Lockhart,
705 F.2d 993, 996-97 (8th Cir.1983));
Bell v. Haley,
Civ. A. No. 95-T-913-N, 2000 WL 33682804 (M.D.Ala.2000) (Thompson, J.) (citing opinions which demonstrate that “[f]ederal cases have elaborated that judicial bias or prejudice rising to a level that violates due process must stem from a predisposition against the defendant that is actual ... or that is readily presumed from a judge’s conduct or comments, or connection to one of the participants”);
cf. U.S. v. Wood,
299 U.S. 123, 133 , 57 S.Ct. 177 , 81 L.Ed. 78 (1936) (“[t]he bias of a prospective juror may be actual or implied; that is, it may be bias in fact or bias conclusively presumed as [a] matter of law”).
To the extent that Davis claims that
any
appearance of bias is tantamount to a due process violation, the court finds that clearly established Supreme Court precedent is not so far reaching. The court is persuaded by the well-reasoned circuit court opinions of
Johnson, supra,
and
Del Vecchio, supra,
regarding their interpretation and application of Supreme Court precedent, that the mere “appearance of bias” on the part of the judge, without a showing of either actual bias or a personal, strong direct interest in the proceedings from which bias can be presumed, is insufficient to rise to the level of a constitutional violation. The court, thus, turns to a review of Davis’ allegations of bias in light of the foregoing teachings.
i.) Actual Bias
On Davis’ direct appeal, the Alabama Court of Criminal Appeals observed that Davis had not argued actual bias and that its independent review of the record of the hearings handled by Judge Teel demon
*1157
strated that there was “no evidence, whatsoever, of any bias” against Davis.
Davis,
554 So.2d at 1099. Also, upon review of the state trial court’s decision denying post-conviction relief to Davis, the Alabama Court of Criminal Appeals observed that Davis “still has not presented any evidence of actual bias on the part of the district judge.”
Davis,
720 So.2d at 1015 .
In this proceeding, Davis has not refuted the findings of the state court that there was no evidence of actual bias on the part of Judge Teel. Davis also has not cited any part of the record which reveals any actual bias on the part of Judge Teel, and the court is aware of no such evidence. Accordingly, the court finds that the decision of the Alabama court that Davis failed to show actual bias was not contrary to clearly established federal law, as articulated by the United States Supreme Court, or based on an unreasonable application of established principles.
ii.) Presumed Bias
In the state courts and now in this proceeding, Davis focuses on an alleged “inherent bias” flowing from the fact that a “pivotal decision” in his case, i.e., whether Davis would be tried as an adult, was decided by Judge Teel based upon the arguments of the prosecutor, who happened to be Judge Teel’s brother. (Doc. No. 95 at 5.) The issue then is whether there is any other evidence revealing that the relationship between Judge Teel and the prosecutor presented the type of personal, strong direct interest from which Judge Teel’s bias can be presumed.
The Supreme Court opinions cited by Davis present scenarios of substantial biased appearances, but the court finds that the facts here neither mirror, nor are comparable to, those in
Murchison, Tumey, Ward
and
Offutt .
There is no evidence that Judge Teel had a financial interest in Davis’ proceedings, and none is alleged by Davis; thus,
Turney’s
holding, followed in
Ward ,
that a state court decision should be set aside where there is “the slightest pecuniary interest” on the part of the judge is inapplicable here. Nor do the facts present a merger of prosecutorial and judicial functions by Judge Teel. This case, therefore, is distinguishable from
Murchison .
Moreover, Davis did not personally attack Judge Teel through insulting, abusive, or contemptuous remarks from which it could be inferred that Judge Teel harbored personal animosity toward Davis. This case, therefore, is unlike
Of-futt.
In short, the court finds that Judge Teel faced none of the biasing influences involved in the cases in which the Supreme Court required disqualification.
Consequently, given this court’s conclusion that Supreme Court precedent in this area has not expressly dealt with the issue presented in this case, the court finds that the Supreme Court’s prior decisions have not involved facts which are “materially indistinguishable” from the facts of this case. It follows then that the state court ruling here was not contrary to federal law as articulated by decisions of the Supreme Court.
See Washington v. Crosby,
324 F.3d 1263, 1265 (11th Cir.2003) (stating that, where no Supreme Court precedent is on point, the state court’s conclusion is not contrary to clearly established Federal law as determined by the Supreme Court).
Nonetheless, Davis essentially asks this court to find that Judge Teel’s “close relationship” to the prosecutor, Frank Teel, automatically establishes a presumption of bias based on the more general principles espoused by the Supreme Court, in opinions such as
Tumey,
and, therefore, to find that the state court decision constituted an “unreasonable application” of Supreme Court precedent. The court, however, finds that Davis’ contention is undercut by language in
Tumey.
*1158
In
Tumey,
and later repeated in
Aetna Life Insurance Co. v. Lavoie, 475
U.S. 813, 820, 106 S.Ct. 1580 , 89 L.Ed.2d 823 (1986), the Supreme Court pronounced that “[a]ll questions of judicial qualification may not involve constitutional validity”; therefore, “matters of
kinship,
personal bias, state policy, remoteness of interest would seem generally to be matters merely of legislative discretion.”
Tumey,
273 U.S. at 523 , 47 S.Ct. 437 (emphasis added). Indeed, the Supreme Court has pointed out on more than one occasion that “most matters relating to judicial disqualification [do] not rise to a constitutional level.”
FTC v. Cement Inst.,
333 U.S. 683, 702 , 68 S.Ct. 793 , 92 L.Ed. 1010 (1948) (citation omitted);
see also Bracy,
520 U.S. at 904-05 , 117 S.Ct. 1793 (discussing elements of a judicial-bias claim and stating that, “[o]f course, most questions concerning a judge’s qualifications to hear a case are not constitutional ones, because the Due Process Clause of the Fourteenth Amendment establishes a constitutional floor, not a uniform standard”; rather, “these questions are, in most cases, answered by common law, statute, or the professional standards of the bench and bar”) (citing
Aetna, 475
U.S. at 820-21, 828, 106 S.Ct. 1580 );
see, e.g., Dyas,
705 F.2d at 998 (“We conclude that Judge Steele’s relationship to the Prosecuting Attorneys was, standing alone, insufficient to raise the conclusive presumption of his actual bias.”).
Davis, however, cites two federal circuit court opinions in support of his position that “[i]t is well established that a judge should not preside over proceedings in which a close relative is involved.” (Doc. No. 92 at 8) (citing
Potashnick v. Port City Constr. Co.,
609 F.2d 1101 (5th Cir.1980), and
SCA Serv., Inc. v. Morgan,
557 F.2d 110 (7th Cir.1977)). The court, however, finds that the holdings in those opinions are not applicable because they involved interpretations of the recusal statute, 28 U.S.C. § 455 (a), which mandates disqualification of federal judges in specified circumstances. As recognized by several circuit courts, “section 455 and the Due Process Clause are not coterminous.”
U.S. v. Couch,
896 F.2d 78, 81 (5th Cir.1990). “[S]ection 455 establishes a statutory disqualification standard more demanding than that required by the Due Process Clause.”
Id.; see also Johnson,
369 F.3d at 262 ( 28 U.S.C. § 455 (a)’s “appearance of impropriety standard” is not “ ‘mandated by the Due Process Clause.’ ”) (quoting
Hardy v. U.S.,
878 F.2d 94, 97 (2d Cir.1989));
U.S. v. Sypolt,
346 F.3d 838, 840 (8th Cir.2003) (observing that, “[i]n contrast to the due process clause, the recusal statute [i.e., 28 U.S.C. § 455 (a) ] is concerned largely with insuring that the federal judiciary appears to be impartial, in addition to actually being impartial[;][i]t thus reaches farther than the due process clause, which is concerned primarily with the individual rights of parties.”) (internal citation omitted) (brackets supplied).
Accordingly, the court finds that the state court decisions did not constitute an “unreasonable application” of the principles espoused by the Supreme Court, in opinions such as
Tumey,
discussed above, which emphasize the importance of impartiality. Davis simply has not presented, and the court has not uncovered, any Supreme Court precedent which would allow the court to presume bias because, during some of the same proceedings, siblings served as the prosecutor and the judge. The court concludes, therefore, that the blood kinship between the Teel brothers, in and of itself, does not satisfy the presumed bias test and that a contrary finding would constitute an unwarranted extension of Supreme Court precedent,
iii.) Conclusion
In sum, after a thorough review of the record and the relevant and controlling
*1159
Supreme Court law, the court finds that Davis has not “overcome a presumption of honesty and integrity in those serving as adjudicators.”
Withrow v. Larkin,
421 U.S. 35, 47 , 95 S.Ct. 1456 , 43 L.Ed.2d 712 (1975). Davis does not assert that Judge Teel was “actually” biased during the juvenile proceedings over which he presided. Davis also has failed to present any evidence, other than the mere fact of a first-degree relationship between the judge and the prosecutor, from which bias can be presumed. Given the absence of evidence establishing either actual or presumed bias, the court finds that Davis’ claim of an appearance of bias on the part of Judge Teel is insufficient to rise to the level of a Fourteenth Amendment due process violation.
For all of the foregoing reasons, the court concludes that Davis has failed to present a federal habeas claim which resulted in a decision by the state court which was “contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States,” or involved “an unreasonable application ... of clearly established Federal law, as determined by the Supreme Court of the United States.”
Williams,
529 U.S. at 404-05 , 120 S.Ct. 1495 (emphasis and quotations omitted). This claim, therefore, is due to be denied.
C.
Claims E & F: Davis’ Claims that the State Court Committed Constitutional Error in Denying his Motion for Change of Venue and Request for an Individually-Sequestered Voir Dire
1. Arguments of Counsel
In Claims E and F, Davis asserts that, given the extensive pretrial publicity, he “was denied a fair trial by a fair and impartial jury, and due process in violation of the Sixth and Fourteenth Amendments to the United States Constitution as a result of the trial court’s denial of his motion for a change of venue and failure to provide adequate voir dire to identify bias of jurors.” (Doc. No. 92 at 9.)
As to Claim E, concerning the trial court’s denial of his pretrial motion for a change of venue, Davis elaborates that the murder of Mrs. Alford and his prosecution received “a great deal of publicity in Coosa County,” as demonstrated by the testimony in the state trial court and the evidence introduced concerning articles published in the local newspaper, the
Alexander City Outlook. (Id.
at 9-10.) In support of Claim E, Davis also relies on the statements of several local residents who, during the state trial court hearing on the motion for change of venue, questioned whether Davis could receive a fair trial in Coosa County. Davis argues that “the extraordinary nature of the case and the overwhelming publicity surrounding it” so permeated the media in his small, rural community that it was impossible to select an impartial juror from that community.
(Id.
at 11.) He contends that, as a result of the pretrial publicity, he suffered actual and presumed prejudice, which he says is confirmed by the voir dire proceedings. (Davis Am. Pet. (Doc. No. 31) at 23-24, ¶¶ 42-43.) Davis contends that the state court’s denial of his motion for change of venue was “contrary to and involved an unreasonable application of’ Supreme Court precedent, including
Sheppard v. Maxwell,
384 U.S. 333 , 86 S.Ct. 1507 , 16 L.Ed.2d 600 (1966), and
Murphy v. Florida,
421 U.S. 794 , 95 S.Ct. 2031 , 44 L.Ed.2d 589 (1975).
(See
Doc. No. 92 at 12.)
Rebutting Davis’ arguments as to Claim E, the State contends that the trial court acted “well within” its “sound discretion” in denying the motion for- a change of venue and that neither
Sheppard, supra,
nor
Murphy, supra,
“supports] [Davis’] claim that the Alabama Court of Criminal Appeals’s decision was contrary to and an unreasonable application of Federal law.”
*1160
(Doc. No. 94 at 25, 28.) Relying on the Alabama Court of Criminal Appeals’ written decision, rejecting Davis’ arguments on direct appeal, the State contends that the state court “properly held” that a change of venue was not required on the basis of “‘inherent prejudice’” because, although “ ‘numerous,’ ” the newspaper articles were “ ‘factual and objective,’ ” with editorial coverage which “ ‘encouraged readers to disregard rumors,’ ” and a significant amount of time (i.e., fourteen months) passed between the murder and the venue hearing.
(Id.
at 25 (quoting
Davis,
554 So.2d at 1100).) Furthermore, the State asserts that the state court “correctly determined” that there was no evidence that the jurors were actually prejudiced and that, therefore, the record adequately supports a finding by this court that the state court acted “in accordance with precedent of the Supreme Court of the United States.”
(Id.
at 25-26.)
In Claim F, Davis avers that he was denied a fair and an impartial jury for the additional reason-that the trial court failed to permit adequate voir dire, including an individually-sequestered voir dire. Davis essentially asserts that, when a defendant is tried in a venue consisting of a “small and close-knit” community which was subjected to extensive pretrial publicity about a case, “detailed questioning of prospective jurors” is constitutionally required. (Doc. No. 92 at 13-14.) Pointing out that the transcript of the voir dire consists of only twenty-nine pages
(id.
at 11), Davis says the questions were “few” and “conclusory,” particularly regarding “the subjects of pretrial publicity” and “knowledge of the victim and her family,” and that the limited voir dire prevented him from determining “the extent to which extra-judicial information or opinions would influence the jurors’ ability to be fair and impartial.”
(Id.)
As a consequence, Davis asserts that he lacked sufficient information from which he could ascertain the effect on the venire members of the pretrial publicity, their extra-judicial knowledge of the case, and their personally-held beliefs.
(Id.
at 11-12); (Davis 3rd Am. Pet., at 24-25, ¶¶ 47-50.) Davis, therefore, asserts that he lacked sufficient information to exercise his for-cause and peremptory challenges and to ascertain whether the jurors selected could give him a fair trial. (Davis 3rd Am. Pet. at 25, ¶ 50.)
In response to Davis’ position as to Claim F, the State reasserts its argument, previously rejected by this court on recommendation of the magistrate judge
(see
Doc. No. 49 at 5-8), that Davis’ claim that the trial court improvidently denied his motion for individual voir dire is procedurally barred from review by this court based on the undisputed fact that, although Davis raised the claim at trial, he did not raise the claim on direct appeal until he filed an application for rehearing in the Supreme Court of Alabama. (Doc. No. 94 at 24, 31-33.) In any event, the State argues that Davis is not entitled to relief on the merits because the state court’s determination did not involve an unreasonable application of or contravene clearly established Supreme Court law.
(Id.
at 34-37.)
2. Proceedings in State Court
In the state trial court, Davis filed a motion for change of venue. The trial was to take place in Coosa County, Alabama, but Davis urged a change of venue based on alleged prejudicial pretrial publicity. A hearing was held on Davis’ motion on September 18, 1979, at which time the state trial court heard testimony from several witnesses, including the publisher of the local newspaper, the
Alexander City Outlook,
and received evidence, namely newspaper clippings and affidavits. (P-21.)
At the hearing, Davis argued that the pretrial publicity arising from the reporting of the case in the
Alexander City
*1161
Outlook,
a newspaper circulated in Coosa County every day except Saturday, when considered together with the gossip and rumors which allegedly pervaded the community where the murder occurred, made it impossible for Davis to receive a fair and an impartial trial in Coosa County.
At the hearing, the publisher of the
Alexander City Outlook
testified that he did not “know of any criminal case that ha[d] received the news coverage for the
Alexander City Outlook
that this case ha[d] received.” (P-21.) There also was evidence that the
Alexander City Outlook
was circulated primarily in Tallapoosa and Coosa counties, with limited circulation in Clay and Elmore counties, and that, on a “high” day, the total circulation of the
Alexander City Outlook
was a “little less than” six thousand. Of the six thousand, there were 850 home and/or business delivery subscribers in Coosa County. There was no evidence presented at the hearing of television or radio coverage concerning the murder of Mrs. Alford. Although at the conclusion of the hearing the State asked the court to take judicial notice of the number of residents in Coosa County, there was no evidence presented at the hearing as to the total population of Coosa County at that time or the number of potential eligible jurors in that county.
4
During the hearing, approximately forty-one newspaper articles reporting on the case were introduced. (P-21.) All of these articles were published in the
Alexander City Outlook.
Testimony also was received from three individuals, one of whom was a forty-five-year resident of Coosa County and two of whom worked for Russell Corporation in Tallapoosa County, where Davis’ mother and wife also were employed at the time. Two of these witnesses had read about the murder in the newspaper and one of those individuals subscribed to
Alexander City Outlook.
A third witness testified that there were “just as many” who believed Davis was guilty as believed he was innocent. These witnesses, however, testified that, based on the “gossip,” “publicity” and “talk in the community” surrounding the murder of Mrs. Alford, they did not think that Davis could receive a fair trial in Coosa County. (P-21.) Several similar affidavits also were introduced by Davis. The State, in turn, offered four affidavits in which citizens attested to the contrary, i.e., that Davis could receive a fair trial in Coosa County. (P-21.)
In a written, two-page order dated September 21, 1979, the trial court denied Davis’ motion for a change of venue. (P-26 at 1142.
5
) In its order, the trial court acknowledged that there was opposing evidence submitted at the hearing demonstrating that Davis both “can” and “cannot” receive a fair trial. The trial court, however, stated that it “should deny [Davis’] Motion, unless the Court is reasonably satisfied, from all the evidence before the court, that [Davis] cannot receive a fair and impartial trial at this time in Coosa County.”
(Id.)
Denying the motion, the trial court reasoned:
The Court ... finds that the
Alexander City Outlook,
a newspaper published in Tallapoosa County, Alabama, from the time of the commission of this alleged
*1162
crime to the present date of this hearing, did publish frequent accounts of this alleged crime. The Defendant’s Exhibit One, numbers forty-one newspapers. However, the Court notes that the first thirty-five newspapers in said exhibit do[] not even mention the Defendant’s name and it was in the thirty-sixth newspaper account of this alleged crime that the Defendant’s name was first mentioned and recited on November 20, 1978. Only five additional publications to the date of this hearing were published by said newspaper, which named the Defendant.
The Court further finds that this newspaper, from a total approximate circulation of six thousand, has a circulation to homes and businesses in Coosa County of approximately eight hundred and fifty papers.
The Court further finds that the evidence as to whether or not the Defendant can receive a fair and impartial trial at this time in Coosa County is conflicting and that the Defendant can receive a fair and impartial trial at this time in Coosa County, Alabama, and the Defendant’s rights can be further protected by proper voir dire of the jury venire and instructions by the Court.
Id.
Approximately nine months later, on June 9, 1980, jury selection in Davis’ case was held. The parties stipulated that the trial court had summoned 100 names from its jury box for service. (P-23 at 326.) Of those 100, approximately sixty-two or sixty-three were present for roll call.
(Id.)
The Honorable Kenneth F. Ingram, then Circuit Judge, questioned the jurors as to their general qualifications to serve on a jury and excused six jurors during this phase. (P-1 at 363.) The trial court then explained different reasons which warrant a juror being excused for cause, one of those reasons being that a juror “has a fixed opinion as to the guilt or innocence of the defendant, which would bias [his or her] verdict.” (P-1 at 370.) Two jurors were excused for cause, not on the latter basis, but on the ground that they were older than 65 years of age. (P-1 at 370-372.)
The State conducted voir dire first. On the issue of jury bias, the prosecutor asked whether any juror had read or heard anything about the case which rendered him or her “so biased” to the point that he or she could not fairly judge the facts, as presented from the witness stand, and give Davis a “fair trial.” (P-1 at 374.) No response was given by any juror which prompted the prosecution to state: “No one stood and responded to that. That means everyone feels [who] is s[i]tting out here that you can put aside everything you heard outside and decide this case on what you hear inside the courtroom, is that right? Let the record show there was no response.” (P-1 at 375.)
When questioned by defense counsel, no juror responded to the following question: Are “there ... any of you out there on the Jury Venire, stand if you don’t believe a person is innocent until proven guilty beyond a reasonable doubt?” (P-1 at 380.) In response to a different question revealing that one juror had frequented Mrs. Alford’s store, this particular juror indicated that, although she did not have a “fixed opinion about the case,” she did not believe that she could “reach a fair verdict.” (P-1 at 380-382.) This juror was challenged for cause by defense counsel and was stricken by the court; she, thus, did not serve on the actual jury. (P-1 at 382.)
When asked by defense counsel, fourteen of the potential jurors indicated that they had read a newspaper account about the case. (P-1 at 389.) Seven of those fourteen did not elaborate on what they had read. The other half volunteered the
*1163
following information when asked if they had read about the case in the
Alexander City Outlook:
“I did[,] but I forgot it”; “I read it[,] but I didn’t keep up with it”; “I read it”; “I didn’t keep up with it” or read “all of it”; “I didn’t remember what I read,” and “[I read about it] right after it happened”; “I read a portion of it in the paper[;] I didn’t read all of it”; “I read a portion of it in the paper”, but “I don’t know what it was.” (P-1 at 389-90.)
Defense counsel then asked, “How many people have discussed this case with someone, at one time or another?” (P-1 at 390.) Six jurors, one of whom is not identified and two of whom are part of the fourteen above who had read about the case, indicated that at some point they had discussed the case. Some stated that their discussions had occurred “at work” or “among friends and relatives.” (P-1 at 390.)
Thereafter, defense counsel questioned the jury venire as to biases, if any. He asked: (1) do you “know anything about this case that you have heard on the outside or read that would [a]ffect your verdict?”; (2) “do any of you know anything that would [ajffect your case one way or another, concerning the serious nature of this case where the State is asking you to put Timothy Charles Davis to death, in the electric chair?”; and (3) are there “any of you who cannot listen to the evidence from the witness stand and return a verdict based solely upon the evidence and assure his defense lawyers here and the State of Alabama that you have no prejudice about this ease, and no pre-conceived opinions or verdicts in this case?” (P-1 at 391-92.) There is no indication in the record that any juror gave a response to the foregoing three questions.
(Id.)
At the conclusion of defense counsel’s questioning during the voir dire process, the trial court observed that it had reserved a ruling on whether to allow individual voir dire examination. (P-1 at 392.) Responding to the trial court’s inquiry as to “exactly ... what” defense counsel “ha[d] in mind” to ask, Davis’ counsel stated that he sought to question individually those jurors who had stated that they had engaged in discussions about the case and those who had indicated that they had read about the case in the
Alexander City Outlook. (Id.)
Defense counsel proposed that the trial court'take these jurors, indicating that “[tjhere weren’t that many,” “outside the courtroom to chambers” for questioning. (P-1 at 392.)
The trial court stated that it was amenable to questioning these jurors individually outside the presence of the other jurors (P-1 at 392) but, at the same time, expressed concern about leaving the remainder of the jurors in the courtroom without court supervision. (P-1 at 392-393.) The trial court stated that it “want[ed] to accommodate” defense counsel and proposed, as an alternative, that defense counsel individually question each juror whom counsel had identified, while “shield[ing] that [juror] from the rest of the venire.” (P-1 at 393.) Defense counsel then asked for a “second” to confer about the matter and, thereafter, proposed a “solution.” (P-1 at 393.) As the “solution,” defense counsel requested that the court simply ask the jurors “to search their minds one more time to make certain they haven’t read or heard anything that keeps them from understanding the principle of the law that ... Davis is innocent” until proven guilty. (P-1 at 393.) The trial court, though, denied the request, finding the proposed question redundant of questions already asked by counsel. (P-1 at 393.) The trial court pointed out that defense counsel asked “several questions” pertaining to “newspaper accounts,” heard responses from the jurors, and questioned those jurors as to whether they believed that they could render a fair and an impar
*1164
tial verdict based solely on the evidence, “not taking into account any newspaper article.” (P-1 at 394-95.)
Twelve jurors were selected to serve on Davis’ case. (P-1 at 400.) Three of the jurors who were selected to serve had read about the case: Saleta Heath, Elise McDonald, and Marvalyne Kelly. (P-1 at 400.) Heath is the individual, above, who stated that she “did” read about the case, but had “forgot[ten] it.” (P-1 at 389.) Kelly and McDonald identified themselves when asked if they had read “any newspaper accounts about this case,” but there is no further elaboration from either of these two jurors. (P-1 at 389.) After jury selection, the jury was sequestered for the trial and deliberations. (P-1 at 397-98.)
3. The State Court Decision
On direct appeal, the Alabama Court of Criminal Appeals rejected Davis’ arguments that “the widespread publicity of the crime mandated a change of venue” and that the trial court “erred in denying [Davis’] motion for a change of venue.”
Davis,
554 So.2d at 1100. The Court reasoned as follows:
Although the appellant presented evidence of numerous newspaper articles covering the crime, the record reveals that these articles were factual and objective in nature and that several editorials even encouraged readei-s to disregard rumors and withhold their judgments as to appellant’s guilt or innocence until after his trial. Consequently, the publicity did not demonstrate “inherent prejudice” against the appellant sufficient to mandate a change of venue.
See Ex parte Magwood,
426 So.2d 929 (Ala.1983), affirming 426 So.2d 918 (Ala.Crim.App.1982);
Robinson v. State,
430 So.2d 883 (Ala. Crim.App.1983). Moreover, the mere passage of time between the crime and the venue hearing, a passage of approximately 14 months in the instant case, was another factor negating the prejudicial effect of the publicity surrounding the instant offense and justifying the trial court’s refusal to grant a change of venue.
See, Magwood, supra; Robinson v. State, supra.
Furthermore, there was no proof of any “actual prejudice” among the prospective jurors. Those who had heard about the crime could remember very little about it. None, when questioned on voir dire, disclosed any preconceived notions or fixed opinions as to appellant’s guilt and all indicated that any prior knowledge would in no way affect their verdicts. The record clearly demonstrates compliance with the juror fairness and impartiality standards espoused in
Murphy v. Florida,
421 U.S. 794 , 95 S.Ct. 2031 , 44 L.Ed.2d 589 (1975).
See, Anderson v. State,
362 So.2d 1296 (Ala.Crim.App.1978);
Giles v. State,
554 So.2d 1073 (Ala.Crim.App. 1984).
Under these circumstances, the trial court’s denial of appellant’s motion for a change of venue, a decision properly left to the sound discretion of the trial court, was not improper.
See, Magwood, supra; Anderson v. State, supra; Moulds v. State,
426 So.2d 942 (Ala.Crim.App. 1982).
Id.
Also, in a written opinion, on appeal from the state trial court’s judgment denying post-conviction relief, the Alabama Court of Criminal Appeals rejected Davis’ claim that his counsel was ineffective for failing to conduct adequate voir dire, “particularly concerning the issues of pretrial publicity, knowledge of the appellant and his family, knowledge of the victim and her family, and the jurors’ feelings and opinions about the death penalty.”
Davis,
720 So.2d at 1018 . The Court of Criminal Appeals stated:
*1165
A review of the record indicates that each of these areas was addressed during the voir dire examination. Moreover, as we stated in our opinion in the appellant’s direct appeal, there was no evidence that members of the venire were biased against the appellant.
See Davis,
554 So.2d at 1100. Similarly, in the present proceeding, the appellant has not shown any evidence of bias, that he was prejudiced by trial counsel’s allegedly insufficient voir dire examination of potential jurors, and that there is a reasonable probability that the result of the trial would have been different if counsel has conducted additional voir dire examination.
Strickland, supra.
Again, he has made bare allegations and drawn legal conclusions that are not supported by facts. Rule 32.6(b), Ala. R.Crim. P.
Id.
A
Analysis
Davis’ claim that he was denied a fair and an impartial jury arises from the guarantees of the Sixth Amendment and the Fourteenth Amendment’s Due Process Clause.
See Ross v. Oklahoma,
487 U.S. 81, 85 , 108 S.Ct. 2273 , 101 L.Ed.2d 80 (1988) (“It is well settled that the Sixth and Fourteenth Amendments guarantee a defendant on trial for his life the right to an impartial jury.”);
Turner v. Murray,
476 U.S. 28 , 36 n. 9, 106 S.Ct. 1683 , 90 L.Ed.2d 27 (1986) (“The right to an impartial jury is guaranteed by both the Sixth Amendment ... and by principles of due process.”). Davis’ claim comprises two separate, but related, components. Davis’ first contention is that the trial court erred in denying his motion for a change of venue because the extensive pretrial publicity in the
Alexander City Outlook,
the local newspaper, either actually or presumptively prejudiced the jury against him in his case.
(See
Davis 4th Am. Pet., ¶ 46.) Davis’ second contention is that the trial court’s refusal to permit an individually-sequestered voir dire in the circumstances of his case violated his constitutional right to a fair and an impartial jury, by depriving him of the opportunity to expose alleged biases of the jurors through individual questioning.
a.) Procedural Bar
The State again has argued that Davis’ claim that he was improperly denied individually-sequestered voir dire is procedurally defaulted. The court has reviewed the record in this case and concludes that the State is correct that, on post-conviction review, the Alabama Court of Criminal Appeals
erroneously
concluded that this claim was raised and addressed on direct appeal.
See Davis,
720 So.2d at 1017-18 . In fact, this claim was not addressed on direct appeal and, thus, could be procedurally defaulted from a merit review by this court for that reason.
See
Ala. R.Crim. P. 32.2(5);
Wainwright v. Sykes,
433 U.S. 72 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977) (holding that consideration of a claim in a petition for habeas corpus can be barred by failure to comply with state procedural rules). However, the last state court to review this claim did not conclude that the claim was procedurally defaulted because of this failure. Rather, it refused to review the merits on post-conviction review because the issue had been raised and addressed at trial and on direct appeal.
See Davis, supra.
In
Harris v. Reed
the Supreme Court held that a federal court has the responsibility to determine whether a state court, in fact, based its denial of relief on procedural grounds. 489 U.S. 255 , 109 S.Ct. 1038 , 103 L.Ed.2d 308 (1989). Adopting the plain statement rule as pronounced in
Michigan v. Long,
the Court held that, if a state court issues a “plain statement” that its decision rests on independent and ade
*1166
quate state grounds, a federal court should not address the merits of the federal claim. 463 U.S. 1032, 1041 , 103 S.Ct. 3469 , 77 L.Ed.2d 1201 (1983). If, however, a state court’s reasons for rejecting a claim are ambiguous such that a federal court cannot determine whether the decision is based on procedural grounds or the merits, federal review is not precluded.
Id.
The plain statement rule applies only when a state court’s decision creates an ambiguity over whether the decision was based on the merits or on the application of a procedural bar.
See Harmon v. Barton,
894 F.2d 1268 (11th Cir.1990). The question presented by the instant situation is whether the plain statement rule applies where the state court failed to acknowledge and rely upon a basis for procedural default supported by the record and instead refused to review a claim on the erroneous basis that it had been reviewed on direct appeal. Indeed, this situation presents interesting questions concerning whether a state court’s waiver of (or failure to acknowledge) its own procedural rules as a basis of default prevents this court from relying on that basis of procedural default, and whether the plain statement rule, if applicable in this instance, would require this court to review the claim on its merits.
The court, however, finds that it need not decide whether, in fact, this claim was proeedurally defaulted in the first instance because, as discussed below, the court concludes that the claim lacks merit.
b.) Pretrial Publicity as Pertains to the Alleged Necessity for a Change of Venue
“The standards governing a change of venue ultimately derive from the due process clause of the fourteenth amendment which safeguards a defendant’s sixth amendment right to be tried by ‘a panel of impartial, indifferent jurors.’ ”
Irvin v. Dowd,
366 U.S. 717, 722 , 81 S.Ct. 1639 , 6 L.Ed.2d 751 (1961) (superseded on other grounds by statute);
see also Sheppard,
384 U.S. at 362 , 86 S.Ct. 1507 (“Due process requires that the accused receive a trial by an impartial jury free from outside influences.”). This fundamental constitutional right is violated where the prejudicial and inflammatory nature of the pretrial publicity so poisons the community against the defendant that it is impossible to select a fair and an impartial jury from that community. When such a scenario is presented, due process mandates that the trial court grant a defendant’s motion for a change of venue.
Rideau v. Louisiana,
373 U.S. 723, 726 , 83 S.Ct. 1417 , 10 L.Ed.2d 663 (1963);
see also Sheppard,
384 U.S. at 362-63 , 86 S.Ct. 1507 .
On the other hand, a change of venue is not required merely because the crime and the defendant have been exposed to media coverage of which the potential jurors are aware. “[I]t is not required ... that the jurors be totally ignorant of the facts and issues involved.”
Irvin,
366 U.S. at 722 , 81 S.Ct. 1639 . As explained by the Supreme Court in
Irvin ,
an opinion decided nineteen years prior to Davis’ trial date,
[i]n these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard.
Id.
at 722-23 , 81 S.Ct. 1639 . Impartiality exists where a potential juror indicates that he or she can put aside any precon
*1167
ceived notions regarding the outcome of the case and return “a verdict- based on the evidence presented in court.”
Id.
at 723 , 81 S.Ct. 1639 .
There are two standards to guide courts when deciding whether the Fourteenth Amendment requires a change of venue due to alleged juror bias stemming from pretrial publicity: “actual prejudice” and “presumed prejudice.”
Meeks v. Moore,
216 F.3d 951, 961 (11th Cir.2000);
see also Dobbert v. Florida,
432 U.S. 282, 303 , 97 S.Ct. 2290 , 53 L.Ed.2d 344 (1977) (discussing the actual and presumed prejudice analysis; observing that in
Murphy, supra,
the defendant “failed to show that the trial setting was inherently prejudicial or that the jury selection process permitted an inference of actual prejudice”) (citing
Murphy,
421 U.S. at 802 , 95 S.Ct. 2031 ). Davis relies on both standards and “bears the burden of demonstrating either type of prejudice.”
Cummings v. Dugger,
862 F.2d 1504, 1509 (11th Cir.1989) (citing
Murphy,
421 U.S. at 803 , 95 S.Ct. 2031 ).
Moreover, a state court’s finding of a juror’s impartiality on federal habeas review pursuant to 28 U.S.C. § 2254 only will be overturned for “manifest error.”
Depree v. Thomas,
946 F.2d 784, 788 (11th Cir.1991);
Patton v. Yount,
467 U.S. 1025, 1031 , 104 S.Ct. 2885 , 81 L.Ed.2d 847 (1984). In describing the “manifest error” standard, the Supreme Court has stated that “the question is whether there is fair support in the record for the state court[’s] conclusion that the jurors here would be impartial.”
Depree,
946 F.2d at 788 (quoting
Patton,
467 U.S. at 1038 , 104 S.Ct. 2885 ).
1.) Presumed Prejudice
The threshold for demonstrating presumed prejudice is high, and the burden on Davis “is an extremely heavy one.”
U.S. v. Lehder-Rivas,
955 F.2d 1510 , 1524 (11th Cir.1992). Prejudice is presumed only in the extreme case where the negative pretrial publicity so saturates the community so as to render virtually impossible a fair trial by an impartial jury drawn in that community.
See Murphy,
421 U.S. at 798-99 , 95 S.Ct. 2031 ;
see also Mills v. Singletary,
63 F.3d 999, 1010 (11th Cir.1995) (“the principle of presumed prejudice ‘is rarely applicable and reserved for extreme situations’ ”).
To decide whether Davis has presented evidence from which prejudice can be presumed, the court must examine “whether: (1) the pretrial publicity was sufficiently prejudicial and inflammatory; and (2) the publicity saturated the community in which the trial was held.”
Mills,
63 F.3d at 1010 . Publicity which is factual- and objective in nature is not likely to be deemed “inflammatory.”
Murphy,
421 U.S. at 801 n. 4, 95 S.Ct. 2031 (noting distinction between “largely factual publicity” and publicity “which is invidious or inflammatory”);
Mills,
63 F.3d at 1012 (“We are satisfied that the media coverage of this case ‘was essentially factual and was not directed at arousing or inciting the passion of the community.’ ”);
U.S. v. De La Vega,
913 F.2d 861, 865 (11th Cir.1990) (330 newspaper articles not sufficient to establish presumed prejudice because they were “largely factual in nature and could not have created the sort of inflamed community atmosphere which courts deem presumptively prejudicial”).
Moreover, the “quantum” of the publicity does not, standing alone, create a presumption that a defendant was denied a fair trial by an impartial jury.
Dobbert,
432 U.S. at 303 , 97 S.Ct. 2290 (rejecting petitioner’s argument that “extensive coverage by media denied him a fair trial” because the argument “rest[ed] almost entirely upon the quantum of publicity which the events received,” without any evidence of “constitutional unfairness”). Rather, “[t]he nature of the publicity and whether
*1168
it is the sort that could be laid aside by jurors, rather than its volume, is the crucial factor to be considered.”
Brofford v. Marshall,
751 F.2d 845, 851 (6th Cir.1985) (citing
Murphy,
421 U.S. at 794 , 95 S.Ct. 2031 ).
In addition to the volume and content of the pretrial publicity, two other factors are relevant in determining whether prejudice is presumed. First, the court should consider the amount of time which has elapsed between the peak pretrial publicity and the actual trial.
Murphy,
421 U.S. at 803 , 95 S.Ct. 2031 ;
see also Lehder-Rivas,
955 F.2d at 1524 (holding that, court’s evaluation of the existence of presumptive prejudice should include consideration of “the time lapse between peak publicity and the trial”). Although noting that “[i]t would be fruitless to attempt to identify any particular lapse of time” that would lessen the prejudicial impact of pretrial publicity, the Supreme Court has observed: “That time soothes and eases is a perfectly natural phenomenon, familiar to all.”
Patton,
467 U.S. at 1034-35 , 104 5.Ct. 2885. Second, the court should consider “the credibility of prospective jurors who indicate during voir dire that they could be impartial despite having been exposed to pretrial publicity about the case.”
Lehder-Rivas,
955 F.2d at 1524.
In support of his claim that he was denied a fair trial by virtue of the extensive pretrial publicity, Davis relies on two Supreme Court decisions:
Sheppard v. Maxwell, supra,
and
Murphy v. Florida,
421 U.S. 794, 800 , 95 S.Ct. 2031 , 44 L.Ed.2d 589 (1975). Given that “the question whether prejudice should be presumed is by its very nature shaped by the facts,”
Coleman v. Kemp,
778 F.2d 1487, 1490 (11th Cir.1985), the court begins by reciting the facts of
Murphy
and
Sheppard
as illustrative of when pretrial publicity does and does not render possible the seating of a constitutionally fair jury.
In
Murphy,
which involved the robbery trial of a criminal defendant who previously had gained notoriety as a jewel thief, earning him the nickname “Murph the Surf,” the Supreme Court held that the defendant was not deprived of due process when the trial court denied his motion for change of venue. In part because of his flamboyant lifestyle and his prior criminal activities, including a murder conviction, the defendant received a lot of media coverage when he was arrested on the robbery charge at issue in
Murphy.
The Supreme Court rejected the defendant’s presumed prejudice claim, however, finding that the defendant had failed to demonstrate an inflamed community atmosphere.
See
421 U.S. at 803, 95 S.Ct. 2031 . Although “scores of articles report[ed]on [defendant’s] trials and tribulations,”
id.
at 796 , 95 S.Ct. 2031 , both past and present, the Court emphasized that the newspaper articles were primarily factual in nature and that the bulk of news coverage occurred some seven months prior to the trial.
See id.
at 802 , 95 S.Ct. 2031 .
Sheppard ,
a federal habeas corpus proceeding, is one of the rare cases where the publicity reached the level required to constitute presumed prejudice.
6
The publicity, to put it mildly, was extraordinary. It
*1169
was so extraordinary, i.e., “massive, pervasive and prejudicial,” that the Supreme Court held that the defendant, a then prominent doctor in an Ohio suburb, was denied a fair trial in his prosecution for “bludgeoning] to death” his pregnant wife in their home in 1954. Consequently, the Supreme Court reversed the defendant’s judgment of conviction for murder in the second degree, holding that the defendant was denied a fair trial, in violation of the Due Process Clause of the Fourteenth Amendment.
See
384 U.S. at 335 , 86 S.Ct. 1507 .
The defendant, who was the prime suspect since day one of the murder, repeatedly was headlined in every
form of
the news media. Prior to the defendant’s arrest, the media emphasized the defendant’s lack of cooperation with law enforcement, his refusals to submit to a lie detector test and an injection of truth serum, his reluctance to be questioned outside the presence of counsel, and his alleged extramarital affairs.
Id.
at 338-39 , 86 S.Ct. 1507 . The editorials published about the defendant were ruthless and scathing. One described the defendant as a “ ‘liar, still free to go about his business, shielded by his family, protected by a smart lawyer who has made monkeys of the police and authorities, carrying a gun part of the time, left free to do whatever he pleases.’”
Id.
at 341 , 86 S.Ct. 1507 .
Another editorial demanded that the coroner hold an inquest, which the coroner did. The day after the newspaper’s invitation, in a packed gymnasium brimming with print, television and radio reporters, the coroner commenced a three-day inquest with the county prosecutor and detectives by his side and the defendant present by subpoena. During the inquest, which essentially turned into a pep rally for the prosecution, law enforcement officers “searched [the defendant] in full view of several hundred spectators,” and the defendant answered questions for more than five hours about his actions on the night of the murder and an alleged extramarital “love affair.”
7
Id.
at 340 , 86 S.Ct. 1507 . At one point, when the defendant’s counsel tried to participate in the proceedings, counsel was “forcibly ejected from the room by the Coroner, who received cheers, hugs, and kisses from ladies in the audience.”
Id.
at 338, 340 , 86 S.Ct. 1507 . Other editorials on the subject of the murder, included “front-page charge[s] that somebody is ‘getting away with murder,’ ” and “ ‘Why Isn’t [the defendant] in Jail?’ ”
Id.
at 340-41 , 86 S.Ct. 1507 .
The area newspapers were replete with incriminating evidence against the defendant and demands for. his arrest. After the defendant’s arrest, the negative publicity, including front page headlines, intensified, becoming more sensational and satirical. For example, one newspaper featured a cartoon of the defendant’s head atop a sphinx, with a satirical caption reading: “T Will Do Everything in My Power to Help Solve This Terrible Murder.’ — Dr. Sam Sheppard.’ ”
Id.
at 341-42, 339-41 , 86 S.Ct. 1507 . The foregoing represents but a sample of the media coverage which continued unabated from the discovery of the victim’s body until trial.
8
*1170
Three months prior to the trial, the news media, by invitation of the coroner, provided in depth coverage, including photographs, of the defendant’s performance during a re-enactment of the events occurring on the day of the murder.
Id.
at 338, 354 , 86 S.Ct. 1507 . Nine days prior to jury selection, an editorial accused defense counsel of “jury tampering” for polling community residents on their beliefs of the defendant’s guilt or innocence to support a motion for change of venue.
See id.
at 345-46 , 86 S.Ct. 1507 . On the second day of voir dire, a local radio station broadcast a live debate forum in which newspaper reports “accused [defense] counsel of throwing roadblocks in the way of the prosecution and asserted that [the defendant] conceded his guilt by hiring a prominent criminal lawyer.”
Id.
at 346 , 86 S.Ct. 1507 . Also, during jury selection, a front-page news story — with a two-inch headline stating “But Who Will Speak for Marilyn?” — promised readers through quotes from a detective that the prosecution’s evidence “would speak for Marilyn.”
Id.
at 346-47 , 86 S.Ct. 1507 .
Moreover, the area newspapers published the names and addresses of each of the jury venire. As a result, prospective jurors received letters and telephone calls from both friends and foes.
Id.
at 342 , 86 S.Ct. 1507 . At voir dire, all but one of the selected jurors had read or listened to broadcasts about the case, and seven subscribed to home delivery of at least one area newspaper.
Id.
at 345 , 86 S.Ct. 1507 . The jury, which was ultimately selected, was sequestered only during its deliberá-tions, with inadequate instruction from the judge during the trial not to “read or listen to anything concerning the case.”
Id.
at 353 , 86 S.Ct. 1507 .
As Davis’ claim focuses on pretrial publicity,
9
it suffices for present purposes to observe that, during the entirety of the defendant’s trial in
Sheppard ,
the courtroom was filled with a plethora of print, television and radio reporters, and the “intense publicity continued unabated.”
Id.
at 345 , 86 S.Ct. 1507 . More than twenty local newspaper personnel and wire service representatives had special seating inside the bar during the entirety of the trial.
Id.
at 342-43 , 86 S.Ct. 1507 . Television and radio reporters, as well as out-of-town print media, occupied the majority of the space on three of the four rows of benches in the courtroom.
Id.
The media, subject only to very few restrictions, essentially was given free rein of the courtroom and the courthouse “during the entire nine weeks of the trial.”
Id.
at 345 , 86 S.Ct. 1507 . Indeed, the Supreme Court admonished the trial court for its failure to control the press and prevent the “carnival atmosphere” in the courtroom during the trial.
Id.
at 358 , 86 S.Ct. 1507 .
The Supreme Court concluded that, although it could not “say that [the defendant] was denied due process by the judge’s refusal to take precautions against the influence of pretrial publicity alone,” the trial judge’s “arrangements” with the media, which resulted in pure “bedlam” and a “carnival atmosphere” during the trial, “caused [the defendant] to be de
*1171
prived of that ‘judicial serenity and calm to which [he] was entitled.’ ”
Id.
at 344-45, 358 , 86 S.Ct. 1507 (quoting
Estes,
381 U.S. at 536, 85 S.Ct. 1628 ). As noted by the Supreme Court in its later decision of
Murphy,
discussed above,
“Sheppard
arose from a trial infected not only by a background of extremely inflammatory publicity but also by a courthouse given over to accommodate the public appetite for carnival.”
Murphy,
421 U.S. at 799 , 95 S.Ct. 2031 . The Supreme Court in
Sheppard ,
however, did not completely bypass the question of when
pretrial
publicity alone requires the trial judge to take precautionary measures: “[W]here there is a reasonable likelihood that prejudicial news will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity.” 384 U.S. at 363 , 86 S.Ct. 1507 .
In view of the forgoing principles, the court turns to consideration of whether the pretrial publicity here was so intensive and extensive so as to compel a finding of presumed bias or preformed opinion. For the reasons to follow, the court finds that the facts of the case fall short of the pretrial media frenzy in
Sheppard
and more aptly fall within the permissible constitutional boundaries established in
Murphy.
In this case, approximately twenty-three months elapsed between the date of the murder (i.e., July 20, 1978) and the commencement of the trial (i.e., June 9, 1980). Examining the nature of the pretrial publicity, the court discusses, first, the initial four months of news coverage and, second, the news coverage which occurred thereafter during the nineteen months preceding the trial. Third, the court examines Davis’ arguments generally relating to demographics. Fourth, the court compares the pretrial publicity in this case to that which occurred in
Sheppard .
a.) The Initial Four Months of News Coverage
Davis emphasizes in these proceedings, and the court has not overlooked, the fact that the publisher of the
Alexander City Outlook
testified during the hearing on Davis’ motion for change of venue that he (the publisher) did not “know of any criminal case that ha[d] received the news coverage for the
Alexander City Outlook
that this case ha[d] received.” Undoubtedly, the senseless, violent murder of Mrs. Alford shocked the residents of Coosa County and received considerable newspaper coverage in the
Alexander City Outlook,
particularly during the immediate aftermath of the murder. Indeed, during the four months immediately following the murder, the media coverage of the murder and the unnamed “teenage” suspect was at its height. The court agrees with Davis that, at least during these four months, articles reporting on the case frequently appeared in the
Alexander City Outlook.
The evidence adduced at the hearing on Davis’ motion for change of venue reveals that at least thirty-eight articles appeared in the
Alexander City Outlook
between July 21, 1978 (i.e., the day after the murder) and November 20, 1978, when Davis was identified for the first time by name in a news article reporting that Davis had been certified as an adult for trial.
Although Davis has failed to point to any specific reference or statement in any of the numerous articles which he contends is unduly prejudicial, save one editorial which the court discusses below, the court independently has examined the articles in the record. The court concludes, as did the state court, that the articles are predominantly “factual and objective in nature.”
Davis,
554 So.2d at 1100.
A majority of the articles focus on the eight-week prolonged process surrounding the juvenile extradition proceedings which
*1172
Davis did not waive and which occurred in Georgia, where Davis relocated after the juvenile court initially determined that there was insufficient evidence to hold Davis. Although some of these articles report that Coosa County “authorities” considered Davis to be a “runaway” from the juvenile court system, arguably an in-culpatory description, the articles also reported Davis’ side of the story as relayed by his lawyers, i.e., that Davis’ release by the juvenile court was “unconditional,” meaning that it was Davis’ right to travel to Georgia if he so desired, and that Davis had left Coosa County because of death threats he had received. One editorial, on the subject of extradition, even cautioned readers from forming preconceived opinions as to the juvenile suspect’s decision to challenge the extradition proceedings, observing that, while the decision may appear “unwise,” the
Alexander City Outlook
did not “pretend to know all the factors which contributed to this decision either.”
The articles published during this four-month period also contain descriptions of the legal proceedings which had occurred to date and explain what would occur in upcoming hearings; for example, one article sets forth the factors which the trial court could consider when deciding whether “the young suspect in the Avis Alford murder case [would] be tried as a juvenile or as an adult.” In short, these articles report the events unfolding in the murder of Mrs. Alford and the “juvenile” suspect, and the court does not discern the articles as slanting one way or the other or as inflaming the senses.
In his brief, however, Davis relies, almost exclusively, on a particular editorial published in the
Alexander City Outlook
on August 2, 1978, as an indicator of the alleged untamed publicity allegedly surrounding the trial.
(See
Doc. No. 92 at 10 (citing P-21 at 192-93).) Davis quotes the portion of that editorial which refers to the “refusal” of the “seventeen year old suspect” to “voluntarily return to Alabama for a court hearing,” and describes the suspect’s “refusal” as one of many, but probably not the last, “peculiar turn” in the case.
(Id.)
Davis also cites the editorial’s comment of the potential of the case “becoming one of those trials that give the judicial system a bad name by its very excesses” and “becoming a circus that winds up not serving well the friends and relatives of the late Mrs. Alford or the suspect or the larger community, or the cause of justice.”
The court finds that the prejudicial impact, if any, of this editorial is minimal for at least four reasons. First, the editorial was published a mere two weeks after the murder and more than twenty-two months prior to the actual trial date. The editorial’s temporal nexus to the trial date, therefore, is remote. Second, Davis’ name is not mentioned in this article; thus, at the time of publication, readers would not have had any reason to associate Davis with the crime. Third, although Davis points out that the editorial announced that “community feelings are ... running high” and that “rumors are running rampant”
(id.),
any argument that the editorial comments portrayed the general attitude among Coo-sa County residents is substantially weakened based upon the publisher’s testimony that no scientific polls were used to determine the public opinions and that the editorial merely “reflected [his] feelings.”
Fourth, notably absent from Davis’ brief is any mention of other portions of the editorial which urge the community not to make, and to put aside, any preconceived judgments based upon rumors and innuendo. Specifically, the editorial reminds “everyone” that the suspect under investigation may not be the actual culprit, that the “current suspect ... enjoys the benefit of the presumption of innocence in the eyes of the law” and that hopefully “he enjoys
*1173
that same presumption in the eyes of the community, unless it is proven otherwise.” The editorial further provides: “Here at the newspaper we are going to do our best to heed our own advice and to report legitimate developments in a complicated case which is of high interest to people in this area and at the same time screen out groundless rumors and avoid sensationalism.” Repeating its caution, the editorial concludes: “We would like for this matter to be adjudicated fairly and in a dignified atmosphere befitting its seriousness. We would like for this community to be calm and patient. We would like to see justice done.” Such cautioning is a far cry from inflammatory.
Another article, emphasized by Davis at the hearing on his motion for change of venue presumably due to its alleged inflammatory content, was published on August 3, 1978, the day after the above editorial, and is titled “Columbus Cops Lost Interest after Early Alford Case Inquiry.” This article included a statement that neighboring Georgia law enforcement authorities contacted the Coosa County Sheriffs Office, shortly after the murder of Mrs. Alford, in relation to its investigation of a series of stranglings in a Georgia locale. The article, however, was quick to dispel any suggestion that the main “suspect” targeted in the investigation of the murder of Mrs. Alford also was under investigation for the strangling murders in Georgia. Namely, the article includes a statement and quote that Georgia authorities discerned no connection between the crimes and that the Alford case presented a “completely different situation” from the murder investigation in Georgia. Moreover, the same article observed that the “suspect” in the Alford murder case was released “for lack of evidence” by a juvenile court, a fact which certainly was not prejudicial to Davis.
In its evaluation of whether the news coverage as a whole was sufficiently inflammatory, the court also has considered the nature and words chosen by the
Alexander City Outlook
to describe the brutal murder.
See, e.g., Meeks,
216 F.3d at 964 (finding of presumed prejudice sufficient to warrant change of venue was not warranted, where among other things, there was “no horrible description of the details of the killings”). The court recognizes that two of the articles, one published the day after the murder and another published six days after the murder, describe the murder in some detail. For example, the article published in the
Alexander City Outlook
the day after the murder reports that the victim was found “face down in a pool of blood,” having “died of multiple stab wounds in the back,” and included a statement that authorities “declined to speculate about whether or not the nude victim had been sexually molested.” Although somewhat graphic, the court does not find these descriptions to be grossly inflammatory. The majority of the articles following this one, save a July 26, 1978 article which, although omits mention that Mrs. Alford’s body was nude, references the repeated stabbings and the pool of blood, describe the murder in mere short fashion as a “slaying” or “murder,” without further elaboration. Although some of the articles published closer in time to the trial include accounts that Mrs. Alford was “stabbed to death” and a few articles reference the related charge against Davis for “sodomy,” the gruesome details, particularly as to the evidence of sodomy, are omitted. In short, the court finds that the
Alexander City Outlook
accurately reported the cause of death in a manner which did not overemphasize the gory details of the brutal murder and did not suggest in its reporting that the suspect in custody was guilty of the brutal crime. The court simply cannot
*1174
say that the accounts of the murder were written so as to inflame the community.
Moreover, it is noteworthy that at the hearing on the motion for a change of venue, it was stipulated that none of the thirty-five articles referenced during the hearing even mentioned Davis’ name, and the articles do not. Rather, given Davis’ juvenile status, the
Alexander City Outlook
identified Davis in the various articles by descriptions only, such as the “teenage suspect,” “youth suspected in the murder” of Mrs. Alford, the “seventeen[-]year[-]old suspect” and “young suspect.” The court finds that the fact that Davis’ name was withheld from publication is another factor which softens the prejudicial impact, if any, of the pretrial publicity during the initial four-month phase of intense reporting on the murder.
The first time Davis’ name appeared was in an article published on November 20, 1978, after Judge Teel certified Davis as an adult. Even then, in the same edition, the
Alexander City Outlook
included an editorial, titled “Decision Not a Verdict,” cautioning readers that no proceedings concerning Davis’ guilt or innocence had yet occurred and repeating its earlier caution that the readers must not “forget that in the eyes of the law any suspect remains innocent unless at the end of this long process a guilty finding is reached.” The editorial again urged readers “to avoid making judgments.”
The
Alexander City Outlook
issued other cautions, similar to the ones discussed above, throughout the course of its reporting on the murder case and the arrest of Davis. The editorials reveal not a bias against Davis, but quite to the contrary, an urging by the
Alexander City Outlook
to its readers to remain impartial and fair-minded and to withhold judgment until such time that a trial is held and the evidence received. The court finds that the
Alexander City Outlook
sought to neutralize any community prejudice against Davis, not to “arous[e] or incitfe] the passion of the community.”
Mills,
63 F.3d at 1012 (quotations and citation omitted). Indeed, the court finds that the
Alexander City Outlook
heeded its own advice in reporting non-inflammatory and unemotional news stories on the case.
b.) The Nineteen Months Preceding the Trial
After the initial flurry of reporting, which occurred for approximately four months, the volume of news coverage on the murder in the
Alexander City Outlook
subsided significantly. During the nineteen months which preceded Davis’ trial date, that is, between November 21, 1978 (i.e., the day after the
Alexander City Outlook
published Davis’ name for the first time) and June 9,1980 (i.e., the first day of the trial), the record reveals that only seven articles were published in the
Outlook. (See
Vol. 14, Appeal to Alabama Court of Criminal Appeal, Pet. for Relief from Sentence.) Notably, only one of these seven articles appeared during the nine months immediately preceding the trial. The latter article, which was published in the
Alexander City Outlook
on June 8, 1980, merely alerted readers that Davis’ capital felony trial was to begin the next day.
10
Regarding the content of the news coverage during this nineteen-month time frame, the seven articles consist of news pertaining to Davis’ arraignment, his youthful-offender application, his motion for a change of venue based upon “pretrial publicity,” and the fact that a court-ordered psychological examination revealed that Davis was mentally competent to
*1175
stand trial.
(See
Vol. 14, Appeal to Alabama Court of Criminal Appeals.) The court carefully has reviewed these articles and finds that they are factual in nature and do not contain innuendos or subtle gestures pointing a finger at Davis. Neither the titles nor the subject matter of these articles is inflammatory or sensational in nature.
11
There is nothing in the record which indicates that the news coverage up to this point was tilted against Davis or otherwise inflammatory.
As stated, courts consider as relevant the temporal proximity of the news coverage to the commencement of the trial, a factor which in this case weighs strongly against a finding of presumed prejudice. Considering that there was an appreciable decrease in news coverage for more than a year-and-a-half prior to the trial, in combination with the fact that the articles were predominantly factual in nature, the court finds that the evidence fully supports a finding of an absence of presumed prejudice.
See Murphy,
421 U.S. at 802 , 95 S.Ct. 2031 (large-scale publication of news articles about defendant ceased approximately seven months before the jury was selected);
Lehder-Rivas,
955 F.2d at 1525 (given that “peaks of publicity occurred” eight and six months “before the beginning of the trial, we fail to find a ‘barrage of inflammatory publicity immediately prior to trial’ sufficient to demonstrate presumptive prejudice”).
c.) Demographics
Davis argues that, even if the news coverage is deemed factual and objective, the state courts failed to consider the cumulative effect of the coverage in
Alexander City Outlook
of a brutal murder on a “small” community. Namely, he asserts that the decision of the state courts did not “take into account that factual and objective articles about a death penalty case involving horrific crimes, including murder and anal sodomy, against a storekeeper ... have a much greater and more prejudicial impact” on a small, rural community, “than factual and objective media coverage of a less serious and sensational crime in an area with a greater population.” (Doc. No. 92 at 12.) The court, however, is not persuaded that, in this case, the fact that pretrial publicity occurred in a county with a much smaller population than say, for example, metropolitan Miami-Dade County, Florida, where the crime and trial occurred in
Murphy, supra,
demonstrates presumed prejudice.
The court recognizes that the size of the town is a factor in determining the effect of pretrial publicity on the citizens of that community.
See Rideau,
373 U.S. at 724 , 83 S.Ct. 1417 (finding due process violation after defendant’s filmed confession was repeatedly broadcast on local television news of small town);
Goss v. Nelson,
439 F.3d 621, 633 (10th Cir.2006) (recognizing that “the relatively small population” of the trial venue “is a factor in assessing pretrial publicity,” but holding that the record “point[ed] to a community able to supply a sufficient pool of unbiased potential jurors”). Nonetheless, the court finds that Davis’ argument that the pervading effect of the news coverage is amplified given the size of Coosa County is weakened by at least three factors.
First, the news coverage came from a single print source, i.e., the
Alexander City Outlook,
not all forms of the media as in
*1176
Sheppard .
Second, there were only 850 subscribers to the
Alexander City Outlook
in Coosa County, a county with a population at that time of approximately eleven thousand,
see supra
footnote 4. Third, as discussed in further detail in the next section of this opinion, most of the prospective jurors had not been exposed to the newspaper coverage concerning the ease. Only 26 percent of the potential jurors had read about the case, and those jurors who elaborated could recall little of what they had read. Moreover, only three of the twelve jurors empaneled had read a news account concerning the murder of Mrs. Alford. By comparison, in
Sheppard ,
all but one of the selected jurors had read something about the case.
See
384 U.S. at 345 , 86 S.Ct. 1507 . Fourth, none of the jurors who were selected to serve on Davis’ case indicated that they had formed an opinion about Davis’ guilt.
12
See Murphy,
421 U.S. at 800 n. 3, 95 S.Ct. 2031 (noting distinction for purposes of the presumed prejudice analysis “between mere familiarity with petitioner or his past and an actual predisposition against him”).
Davis also argues also that gossip and rumors pervaded the community, preventing the selection of a fair and an impartial jury in Coosa County. To this end, Davis points out that three witnesses testified on behalf of Davis at the hearing in the state trial court on the motion for a change of venue that the murder and Davis’ alleged involvement were hot topics of gossip in Coosa County and, in particular, at Russell Corporation where Davis’ mother worked at the time. These witnesses questioned whether Davis could receive a fair trial in Coosa County. No doubt the evidence was conflicting on this issue, a fact duly noted by the state trial court, given the opposing evidence submitted by the State.
(See
P-26 at 1142.) This court, however, finds that, as in
Meeks ,
where the defendant presented eight affidavits attesting that “the murders were a topic of public conversation,” the similar affidavits submitted by Davis, do not come close to establishing presumed prejudice. 216 F.3d at 964 . Notably, not one of the jury venire, potential or actual, indicated that he or she had formed an opinion about the case based upon “talk among the town.”
d.) Comparison of the Pretrial Publicity in Davis’ case to that which Occurred in
Sheppard
Even adjusting for the smaller size of Coosa County as compared to larger metropolitan venues, the court finds that the pretrial publicity in Davis’ case does not begin to compare to the widespread television, radio and press coverage that bombarded the community and the trial in
Sheppard .
The articles covering Davis’ prosecution do not contain the type of incendiary remarks, as the articles in
Sheppard
which included, among other derogatory innuendos, descriptions of the defendant as a gun-toting, jury-tampering “liar” represented by a scheming lawyer; rhetorical questions inquiring why the defendant “wasn’t in jail” and “who will speak for Marilyn?”; and satirical portrayals of the defendant, such as the cartoon depicting the defendant as a tight-lipped sphinx.
See
384 U.S. at 341-42, 345-47 , 86 S.Ct. 1507 . There was no suggestion by the press that Davis’ conduct pointed to a finding of guilt, unlike in
Sheppard ,
where, in addition to the above, the media was quick to emphasize the defendant’s lack of cooperation during the investigation and his refusal to take a lie detector test.
See id.
at 338-39 , 86 S.Ct. 1507 . To the contrary, the publicity in this case focused
*1177
primarily on the facts of the case, not on inflammatory material that could not have been admitted in evidence, such as occurred in
Sheppard .
Indeed, the editorial coverage in the
Alexander City Outlook,
on more than one occasion, urged readers to remain neutral and unbiased. The predominantly factual articles appearing in the
Alexander City Outlook
simply cannot be construed as attempting to sway the outcome of the trial against Davis, the obvious intent and effect of the coverage in
Sheppard .
There is no evidence in this case that radio or television publicity saturated the community; in fact, there is no mention or evidence of any coverage by either radio or television, a scenario which is completely antithetical to the inflammatory and extensive televised broadcasts and radio coverage outlined in
Sheppard .
Moreover, Davis was not made a public spectacle in the media, as was the defendant in
Sheppard ,
and nothing in the days preceding Davis’ trial occurred which was even remotely akin to the media’s coverage of the inquest in
Sheppard .
Furthermore, there is no evidence, as in
Sheppard ,
that the jurors were subjected to direct persuasion from the public at large. 384 U.S. at 342 , 86 S.Ct. 1507 . The
Alexander City Outlook
did not expose the names and addresses of the prospective jurors, as occurred in
Sheppard .
It becomes clear through the foregoing distinctions, which are merely representative and not inclusive, that the pretrial publicity in
Sheppard
was much more “massive,” “pervasive” and “virulent,” than the coverage in this case.
Id.
at 353-54 , 86 S.Ct. 1507 . This simply is not one of the rare and extreme cases where prejudice can be presumed.
See Coleman,
778 F.2d at 1537 (noting that “the presumptive prejudice standard ... is only ‘rarely’ applicable ... and is reserved for an ‘extreme situation’ ”).
e.) Summary of the Presumed Prejudice Analysis
In sum, having considered the totality of the news coverage, the court finds that the articles and editorials appearing in the
Alexander City Outlook
did not expose the potential or actual jurors to highly incriminating or inflammatory material, but rather consisted of predominantly factual, un-sensational coverage. The
Alexander City Outlook
issued several cautions throughout the course of its reporting on the murder case and developments. There also was a significant decline in news coverage over time, as only seven articles were published during the nineteen months preceding the trial. The court finds that the news coverage pales in comparison to the quantity and nature of articles which preceded the trial in
Sheppard .
Accordingly, the court finds that the community where Davis’ trial was held was not so saturated by prejudicial and inflammatory pretrial publicity so as to render the state court’s denial of a change of venue violative of the principles of presumed prejudice enunciated in the Supreme Court’s pretrial publicity line of cases. The court, therefore, concludes that the decision of the state courts on the issue of presumed prejudice did not “re-sulte ] in a decision that ... involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254 (d)(1).
2.) Actual Prejudice and the Denial of Individually-Sequestered Voir Dire
Davis also contends that he suffered actual prejudice due to juror bias arising from the pretrial publicity and that the voir dire was inadequate to reveal the juror prejudice, compelling a conclusion that he was denied a fair trial in violation of the Sixth Amendment and the Due Pro
*1178
cess Clause of the Fourteenth Amendment. For the reasons to follow, the court disagrees.
To show “actual prejudice,” a defendant must demonstrate, first, that “ ‘one or more jurors who decided the case entertained an opinion, before hearing the evidence adduced at trial, that the defendant was guilty’ ” and, second, that this or “ ‘these jurors ... could not have laid aside these preformed opinions and rendered a verdict based on the evidence presented in court.’ ”
Meeks,
216 F.3d at 961 (quoting
Coleman v. Zant,
708 F.2d 541, 544 (11th Cir.1983)). As to the second requirement, the court in
Irvin
has emphasized:
To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.
366 U.S. at 723 , 81 S.Ct. 1639 .
Focusing on the actual jurors, as
Meeks
commands, the court observes that only three of the twelve empaneled jurors — or one-fourth — had read any account of the case, and one of those individuals had “forgotten]” what she had read. (P-1 at 389.) Notwithstanding their exposure to the news coverage, these three jurors assured the state trial court and the attorneys that they did not have a fixed opinion as to Davis’ guilt or innocence, flowing from the information they had read concerning the case or from any other extra-judicial source, and the other nine jurors who served on Davis’ case provided the same assurances. Namely, the panel which ultimately was selected to hear Davis’ case was questioned, alongside the entire veni-re, by the court, defense counsel and the prosecution, concerning whether any juror was “so biased” that objective consideration of the facts was impossible or whether any juror had “heard” or “read” anything which would affect his or her verdict. No juror indicated any biases in response to these questions. Moreover, no juror indicated that he or she had formed an opinion based on what he or she had read in the newspaper or otherwise had acquired knowledge about the case which would “affect [his or her] verdict.” Indeed, each juror in the venire pool indicated that he or she could remain impartial, notwithstanding the news coverage. Additionally, not one juror indicated that he or she did not believe in the presumption of innocence accorded to criminal defendants or could not “return a verdict based solely upon the evidence.” (P-1 at 374-75, 380, 392.)
In his present habeas proceeding, Davis has not identified any particular juror on his panel whom he says harbored a preformed opinion as to his guilt. In fact, during the jury selection process, there is no indication in the record that Davis challenged for cause any of the twelve jurors selected to hear his case, a fact which the Supreme Court of the United States has indicated is “strong evidence that [the defendant] was convinced the jurors were not biased and had not formed any opinions as to his guilt.”
Beck v. Washington,
369 U.S. 541, 557 , 82 S.Ct. 955 , 8 L.Ed.2d 98 (1962);
see also Patton,
467 U.S. at 1037 n. 12, 104 S.Ct. 2885 .
Even if Davis had presented evidence indicating that one of the jurors who served on his case possessed a prejudicial bias, arising from an extra-judicial source, which he has not, Davis still would have the burden under the second
Meeks
prong of demonstrating that that particular juror or jurors could not have put aside the bias and rendered a verdict based solely on the evidence. In short, there simply is no
*1179
evidence in the record to support either element of the
Meeks’
two-pronged test for assessing the existence of actual prejudice among the jurors.
13
The court, however, recognizes that there are some instances when “[a] juror’s assurances that he can lay aside his impression or opinion and render a verdict based upon the evidence presented in court” is not “ ‘dispositive of the accused’s rights’ ” and that “it remains open to the defendant to demonstrate ‘the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality.’ ”
Marsden v. Moore,
847 F.2d 1536, 1543 (11th Cir.1988) (quoting
Murphy,
421 U.S. at 800 , 95 S.Ct. 2031 ). For instance, as in
Marsden ,
a defendant may seek to prove actual bias through evidence that, during the voir dire process, the jurors revealed a “hostility” toward him or her “that would suggest an impartiality that could not be set aside.”
Id.; see also Mu’Min v. Virgina,
500 U.S. 415, 429 , 111 S.Ct. 1899 , 114 L.Ed.2d 493 (1991) (reiterating the principle that pretrial publicity sometimes can be so inflammatory so as to “ ‘create such a presumption of prejudice in a community that the jurors’ claims that they can be impartial should not be believed.’ ”) (quoting
Patton,
467 U.S. at 1031 , 104 S.Ct. 2885 ).
In
Marsden ,
where the defendant argued actual juror prejudice arising from pretrial publicity, “thirty-two of the forty prospective jurors had heard or read something about the case”; however, “only four of them stated that they had formed some type of an opinion on the case.”
Id.
at 1543 . Rejecting the defendant’s argument of actual prejudice, the Eleventh Circuit observed that, of the latter four prospective jurors, only one “indicated that his previous opinion would affect” his verdict, and that this juror “was challenged for cause and did not become a member of [the defendant’s] jury.”
Id.
Here, as in
Marsden ,
during voir dire, the sole juror who indicated that she did not believe that she could “reach a fair verdict” was stricken upon defense counsel’s challenge and, thus, did not serve on the jury. (P-1 at 382.) Moreover, only 26 percent of the prospective jurors (fourteen out of fifty-four or fifty-five) reported reading about Davis’ case in the newspaper, as opposed to 80 percent of the jurors in
Marsden
who had been exposed to media coverage, and at least half of the foregoing prospective jurors in Davis’ case, when further questioned by defense counsel, said that their recollection of what they had read was only vague.
14
Based on
*1180
these facts, the court finds that there was no “hostility” evidenced by jurors during the voir dire proceedings in Davis’ case which “suggests an impartiality that could not be set aside.”
Id.
at 1543 .
The court’s analysis of actual prejudice (or, rather, the lack thereof) is not over, because, as stated above, Davis complains that the trial court did not permit him to question the potential jurors individually, particularly about their exposure to the newspaper reports about the case and that, therefore, he did not have “enough information to determine the extent to which extra-judicial information or opinions would influence the jurors’ ability to be fair and impartial.” (Doc. No. 92 at 11.) Without the opportunity to conduct an individually-sequestered voir dire, Davis claims that the voir dire proceedings were constitutionally inadequate and that he was denied an opportunity to expose the alleged actual biases of the jurors. Davis’ argument is not an insubstantial one.
See, e.g., Marsden,
847 F.2d at 1543 (finding no merit to defendant’s actual prejudice claim, but observing that, “because the trial court did not allow [defense] counsel to question each prospective juror outside the presence of the other members of the jury venire, [defendant’s] claim of actual prejudice cannot be easily dismissed”).
Davis’ claim that he was denied a fair and an impartial jury based on the state trial court’s refusal to permit individually-sequestered voir dire is inextricably intertwined with his claim that the state trial court erred in denying his motion for a change of venue based upon alleged actual biases resulting from the pretrial publicity. The two claims intersect by virtue of the fact that voir dire must be constitutionally adequate to expose actual prejudices, even where the pretrial publicity, in and of itself, is insufficient to require a change of venue.
Jordan v. Lippman,
763 F.2d 1265, 1278 (11th Cir.1985). The court, thus, turns to the issue of whether the Sixth and Fourteenth amendments required individually-sequestered voir dire in Davis’ ease.
“[P]art of the guarantee of a defendant’s right to an impartial jury is an adequate voir dire to identify unqualified jurors.”
Morgan v. Illinois,
504 U.S. 719, 729 , 112 S.Ct. 2222 , 119 L.Ed.2d 492 (1992). “Voir dire plays a critical function in assuring the criminal defendant that his [constitutional] right to an impartial jury will be honored. Without an adequate voir dire the trial judge’s responsibility to remove prospective jurors who will not be able impartially to follow the court’s instructions and evaluate the evidence cannot be fulfilled.”
Id.
However, “[t]o be constitutionally compelled,” a trial court’s failure to ask more probing questions on the requested subject “must render the defendant’s trial fundamentally unfair.”
Mu’Min,
500 U.S. at 425-26 , 111 S.Ct. 1899 .
Although not cited by the parties, the court finds that the Supreme Court’s decision in
Mu’ Min, supra,
is instructive. In
Mu’Min ,
the Supreme Court was not squarely confronted with the issue of whether the United States Constitution requires individual sequestration of jurors for follow-up questioning on topics surrounding pretrial publicity, but the Supreme Court did address the issue of when the United States Constitution requires a state trial court to interrogate jurors with respect to the content of their exposure to pretrial publicity.
Mu’Min ,
thus, provides guidance pertaining to a state trial court’s constitutional obligations when conducting voir dire on issues pertaining to the effect of pretrial publicity on the venire.
In
Mu’Min ,
a federal habeas case following a state murder conviction, the defendant, who while serving time for first-degree murder, escaped from a prison
*1181
work detail and killed the owner of a store located in a nearby shopping center. In that ease, it was not questioned that the murder was the subject
of
extensive pretrial publicity by the news media. 500 U.S. at 418 , 111 S.Ct. 1899 . Forty-seven newspaper articles were submitted to the state trial judge regarding the pretrial publicity. The articles contained information about the brutal crime and crime scene, the defendant’s criminal history and prison rules violations, the fact that the defendant had been denied parole six times, the fact that death was unavailable as a penalty for his prior murder conviction, and comments suggesting that the defendant had confessed to the murder.
See id.
During voir dire, sixteen of the prospective twenty-six jurors answered affirmatively when asked if they had learned information about the crime from either the news media or any other source.
See id.
at 419 , 111 S.Ct. 1899 . The state trial court refused to conduct voir dire on all of defendant’s questions, ten to be exact, “relating to the content of news items that potential jurors might have read or seen.”
Id.
The trial court, though, did inquire as to whether the information the jurors had obtained about the case would affect their abilities to be impartial and to hear the evidence with an “open mind” before “reaching a fixed opinion or conclusion as to the guilt or innocence of the accused.”
Id.
at 420 , 111 S.Ct. 1899 . Only one of the prospective jurors admitted that his knowledge of the case rendered him unable to be impartial, and this juror was dismissed for cause.
See id.
Moreover, although the trial court denied defense counsel’s motion for an indi
vidually-sequestered
voir dire, it separated the prospective jurors into panels of four in order to address the issue of pretrial publicity.
See id.
at 419, 420-21 , 111 S.Ct. 1899 . The court inquired as to each group of four whether the jurors had heard or read anything about the case. A positive response prompted the court to inquire whether that juror could remain impartial or had formed a fixed opinion.
See id.
at 420 , 111 S.Ct. 1899 . Eight of the twelve empaneled jurors had read or heard about the case, but all indicated that they had not formed any opinion regarding guilt or innocence, and would remain open-minded during the presentation of the evidence.
See id.
at 421 , 111 S.Ct. 1899 . The defendant, thereafter, was convicted of capital murder and sentenced to death.
See id.
at 421 , 111 S.Ct. 1899 .
On certiorari before the Supreme Court of the United States, the defendant argued that his “Sixth Amendment right to an impartial jury and his right to due process under the Fourteenth Amendment were violated because the trial court refused to question further prospective jurors about the specific contents of the news reports to which they had been exposed.”
Id.
at 417 , 111 S.Ct. 1899 . The Supreme Court disagreed.
The Supreme Court first noted the distinction between the “requirements of voir dire” in state and federal court. As opposed to federal voir dire proceedings over which the Court “enjoy[s] more latitude in setting standards” pursuant to its “supervisory power,”
id.
at 424 , 111 S.Ct. 1899 , a federal habeas court’s review of a state court’s conduct during voir dire “is limited to enforcing the commands of the United States Constitution.”
Id.
at 422 , 111 S.Ct. 1899 . Consequently, only a state court’s refusal to ask jurors “constitutionally compelled” questions merits habeas relief.
Id.
at 425 , 111 S.Ct. 1899 . Questions are “constitutionally compelled” only when “the trial court’s failure to ask these questions [renders] the defendant’s trial fundamentally unfair.”
Id.
at 425-26 , 111 S.Ct. 1899 (citing
Murphy,
421 U.S. at 799 , 95
*1182
S.Ct. 2031). Examining the principles underlying its precedent dealing with voir dire issues in state court, the Supreme Court observed that it had held, in
Turner v. Murray,
476 U.S. 28 , 106 S.Ct. 1683 , 90 L.Ed.2d 27 (1986), a capital case involving an African-American who was accused of committing a violent crime against a Caucasian victim, that the Fourteenth Amendment
compelled
that the state trial court adequately explore issues of racial prejudice during voir dire.
See id.
at 423-24, 111 S.Ct. 1899 . “On the subject of pretrial publicity, however,” the Supreme Court observed that “there was no similar consensus, or even weight of authority”, favoring [the defendant’s] position.
Id.
at 426 , 111 S.Ct. 1899 .
The Supreme Court expressly rejected the defendant’s argument “that the Fourteenth Amendment requires more in the way of voir dire with respect to pretrial publicity than [Supreme Court] cases have held that it does with respect to racial or ethnic prejudice,” and, thus, disagreed that the Fourteenth Amendment “require[s] precise inquiries about the contents of any news reports that potential jurors have read.”
Id.
at 424 , 111 S.Ct. 1899 . Although the Court recognized that the defendant’s argument had “a certain commonsense appeal,” it declined to elevate such questioning to a constitutional level:
Undoubtedly, if counsel were allowed to see individual jurors answer questions about exactly what they had read [about the case], a better sense of the juror’s general outlook on life might be revealed, and such a revelation would be of some use in exercising peremptory challenges. But, since peremptory challenges are not required by the Constitution,
Ross v. Oklahoma,
487 U.S. 81, 88 , 108 S.Ct. 2273 , 101 L.Ed.2d 80 ... (1988), this benefit cannot be a basis for making “content” questions about pretrial publicity a constitutional requirement.
Id.
at 424-25, 111 S.Ct. 1899 .
As a general rule, the Supreme Court observed that “trial court[s]” retain[ ] great latitude in deciding what questions should be asked on “voir dire,” including what questions should be asked about pretrial publicity, and, furthermore, that “primary reliance on the judgment of the trial court makes good sense.”
Id.
at 426-27 , 111 S.Ct. 1899 . The ultimate inquiry is “ ‘not whether the community remembered the case, but whether the jurors ... had such fixed opinions that they could not judge impartially the guilt of the defendant.’ ”
Id.
at 430 , 111 S.Ct. 1899 (quoting
Patton,
467 U.S. at 1035 , 104 S.Ct. 2885 ). The Constitution does not “ ‘require[ ] ... that the jurors be totally ignorant of the facts and issues involved.’ ”
Id.
at 430, 111 S.Ct. 1899 .
The Supreme Court in
Mu’Min
also rejected the defendant’s argument that its decision in
Irvin v. Dowd,
366 U.S. 717 , 81 S.Ct. 1639 , 6 L.Ed.2d 751 (1961), necessitated a conclusion that voir dire inquiry as to content questions on the subject of pretrial publicity was constitutionally mandated.
See id.
at 427-28, 111 S.Ct. 1899 . The Supreme Court concluded that
Irvin
was “instructive, but not in the way [the defendant] employed] it.”
Id.
at 428, 111 S.Ct. 1899 . The Court stated,
Irvin
“did not deal with any constitutional requirement of voir dire inquiry, and it is not clear from our opinion how extensive an inquiry the trial court made.”
Id.
The Supreme Court concluded that, in the case before it, although “substantial,” the pretrial publicity did not create a “ ‘wave of public passion,’ ” such as occurred in
Irvin, supra. See id.
at 429-30, 111 S.Ct. 1899 . On the other hand,
[h]ad the trial court in this case been confronted with the “wave of public pas
*1183
sion” engendered by pretrial publicity that occurred in connection with Irvin’s trial, the Due Process Clause of the Fourteenth Amendment might well have required more extensive examination of potential jurors than it undertook here. But the showings are not comparable; the cases differ both in the kind of community in which the coverage took place and in extent of media coverage.
Id.
at 429 , 111 S.Ct. 1899 ;
see also Gentile v. State Bar of Nevada,
501 U.S. 1030, 1039 , 111 S.Ct. 2720 , 115 L.Ed.2d 888 (1991) (observing that in
Mu’Min
it held “that the publicity [in that case] did not rise even to a level requiring questioning of individual jurors about the content of publicity”).
Applying the Supreme Court’s principles espoused in
Mu’Min ,
the court is not persuaded that the failure of the state trial court in Davis’ case to permit individually-sequestered voir dire rendered the voir dire proceedings so inadequate that the resulting trial was fundamentally unfair.
Mu’Min,
500 U.S. at 425-426 , 111 S.Ct. 1899 . The court reaches this conclusion for two reasons.
First, as in
Mu’Min ,
the court finds that the voir dire proceedings were “by no means perfunctory,” as multiple questions were posed to the venire for the purpose of discerning biases.
Id.
at 431 , 111 S.Ct. 1899 . Both the State and Davis’ counsel had the opportunity to specifically ask the jurors whether their knowledge, if any, of the case obtained from the local news or other sources affected their ability to remain fair and impartial in this case. In all, seven questions were posed to the jury which touched on extra-judicial biases. The court asked the first question, inquiring as to whether any jury had “a fixed opinion as to the guilt or innocence of the defendant, which would bias [his or her] verdict.” (P-1 at 370.) Davis’ counsel and the State each specifically asked the jurors about the effect on the prospective jurors of the pretrial publicity. Namely, the State inquired as to whether media exposure rendered any juror “so biased” that he or she could not judge the facts based upon the evidence presented during the trial (P-1 at 374), and Davis’ counsel expressly inquired as to whether any member of the venire had acquired any outside information about the case which would “[ajffect” his or her verdict one way or the other. (P-1 at 391-92.) Two questions were asked, one by defense counsel and one by the State, as to whether or not the jurors could keep an open mind and decide the case only on the evidence presented during the trial. (P-1 at 375, 391-92.) Relatedly, defense counsel also was permitted to essentially charge the law and ask whether anyone did not believe in the presumption of innocence accorded to criminal defendants. (P-1 at 380.) The seventh question was posed by defense counsel pertaining to whether the “serious nature” of the case would “affect” any juror’s verdict “one way or another.” (P-1 at 391-92.)
Having carefully reviewed the voir dire proceedings, the court concludes that the state trial court’s examination of prospective jurors was within “the wide discretion granted to the trial court in conducting voir dire in the area of pretrial publicity and in other areas of inquiry that might tend to show juror bias.”
Mu’Min,
500 U.S. at 427 , 111 S.Ct. 1899 . Even though Davis’ counsel was not allowed to ask more specific questions regarding the publicity, every seated juror stated his or her willingness and ability to set aside the effect of publicity and to approach the case with an open mind. Further probing as to the specific contents of the juror’s media exposure obviously could have been beneficial to Davis for purposes of exercising his peremptory challenges, but
Mu’Min
explicitly has rejected this benefit as a basis
*1184
for bringing a constitutional challenge to the adequacy of the state court voir dire proceedings.
See id.
at 424-25 , 111 S.Ct. 1899 (holding that, because peremptory challenges are not constitutionally mandated, “this benefit cannot be a basis for making ‘content’ questions about pretrial publicity a constitutional requirement”). The court finds that the fact that the state trial court could have engaged in a more exacting inquiry, by acquiescing to defense counsel’s request for an individually-sequestered voir dire, does not infringe upon the Constitution.
15
Second, the court finds that the pretrial publicity which occurred in this case, as outlined extensively in the preceding section, is in no way comparable to that which occurred in
Irvin ,
so as to create a presumption of actual bias which automatically belies the jurors’ claims of impartiality.
Mu’Min,
500 U.S. at 429 , 111 S.Ct. 1899 ;
see also Irvin,
866 U.S. at 727-28, 81 S.Ct. 1639 (finding actual prejudice where 90 percent of 370 prospective jurors and two-thirds of jurors who actually served on panel had a preconceived opinion that defendant was guilty, with some going “ ‘so far as to say that it would take evidence to overcome their belief in his guilt”);
see also Marsden,
847 F.2d at 1544 (contrasting
Irvin
and holding that defendant failed to demonstrate actual juror bias due to inadequate voir dire, so as to find error in trial court’s denial of the motion for a change of venue based upon pretrial publicity where only four of forty prospective jurors who had knowledge of case said that they had formed “some type opinion about the case”) (citing
Irvin,
366 U.S. at 727 , 81 S.Ct. 1639 ). As in
Mu’Min ,
the court finds that the record simply does not support a finding that the pretrial publicity generated such an outcry of hostility in the community so to constitutionally mandate a more probing inquiry of the jurors regarding their exposure to the pretrial publicity.
See
500 U.S. at 429 , 111 S.Ct. 1899 . Because in Davis’ case the Constitution did not require more detailed voir dire questioning by the state trial court about the content of the news reports to which some of the jurors had been exposed, it logically follows that the Constitution did not require that the state trial court conduct an individually-sequestered voir dire.
Accordingly, for the foregoing reasons, the court concludes that the voir dire was sufficiently probing so as to satisfy constitutional standards and to protect Davis’ right to a fair trial by a panel of impartial jurors who were untainted by the pretrial publicity. Furthermore, the court concludes that Davis has failed to establish that the jurors who were actually impaneled in his case lacked the capacity to be fair and impartial. In short, the court finds no “manifest error” in the decisions of the state court.
Mu’Min,
500 U.S. at 428 , 111 S.Ct. 1899 .
5. Conclusion
In sum, based on the foregoing, the court rejects Davis’ Claims E and F that,
*1185
based on the extensive pretrial publicity, the state court denied him a fair and an impartial jury by denying his motion for a change of venue and by failing to conduct an adequate and individually-sequestered voir dire. Based on the court’s assessment of Supreme Court precedent, the court finds that Davis has not shown that the decisions of the state courts were contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States.
See
28 U.S.C. § 2254 (d). The court concludes that, under the totality of the circumstances, the failure of the state court to grant a change of venue or to conduct an individually-sequestered voir did not violate the principles laid down by the Supreme Court in the opinions discussed herein.
D.
Claim D: The State’s Alleged Brady Violations
1. Arguments of Counsel
Claim D of Davis’ habeas petition implicates the Fourteenth Amendment Due Process Clause and the Supreme Court’s principles emanating from
Brady v. Maryland,
373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), and its progeny. Davis contends that, despite his requests, the State failed to disclose material, exculpatory impeachment evidence concerning Curtis Smith (“Smith”), a key witness in the State’s case. (Doc. No. 92 at 14.) Davis claims that he was not apprized by the State, prior to the trial, that Smith “was initially a suspect,” that Smith had been convicted twice, in 1947 and 1964, for “sexual assault,” and that Smith gave inconsistent statements to law enforcement officers about the color of the motorcycle helmet Davis was wearing on the day of the murder. (Doc. No. 92 at 14-15.) Such evidence, Davis contends, “could have been used to impeach and discredit Smith’s testimony” and its suppression “undermine[d] the confidence in the outcome of the trial.”
(Id.
at 14.)
Davis argues that the State’s alleged suppression of evidence entitles him to habeas relief, pursuant to 28 U.S.C. § 2254 (d)(1) and (d)(2). Regarding § 2254(d)(1), Davis contends that the “standard for materiality” of suppressed evidence applied by the Alabama Court of Criminal Appeals was contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, namely
Brady v. Maryland, supra,
and its lineage.
See
28 U.S.C. § 2254 (d)(1); (Doc. No. 92 at 16, 17.) Davis’ argument in this regard has two components. First, Davis asserts that the Alabama Court of Criminal Appeals’ failure to analyze the “suppressed evidence individually[,] as opposed to cumulatively,” is contrary to and an unreasonable application of the holding in
Kyles v. Whitley
that exculpatory evidence must be “considered collectively, not item by item.” 514 U.S. 419, 436 , 115 S.Ct. 1555 , 131 L.Ed.2d 490 (1995).
Second, Davis says that the Alabama Court of Criminal Appeals “unreasonably applied an incorrect standard” (Doc. No. 92 at 17) when it concluded that evidence of Smith’s past convictions was not material because the evidence “ ‘would not have created a reasonable doubt as to [Davis’] guilt.’ ”
(Id.
(quoting
Davis,
720 So.2d at 1028 ).) The standard applied by the Alabama Court of Criminal Appeals, according to Davis, is contrary to the holding in
Kyles, supra,
that favorable, suppressed evidence is material when it “ ‘undermines the confidence in the outcome
of
the trial.’ ” (Doc. No. 92 at 17 (quoting
Kyles,
514 U.S. at 436 , 115 S.Ct. 1555 ).) Moreover, invoking 28 U.S.C. § 2254 (d)(2), Davis contends that the Alabama Court of Criminal Appeals’ determination that the State did not know about
*1186
Smith’s two prior convictions and, therefore, did not suppress the evidence “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding.” Davis premises the latter argument on the fact that one of the special prosecutors who participated in some of the proceedings in Davis’ murder case also represented Smith on the charge upon which Smith was convicted in 1964 and that the special prosecutor’s knowledge of the conviction is imputed to the entire prosecutorial team. 28 U.S.C. § 2254 (d)(2); (Doc. No. 92 at 17-18); (Doc. No. 95 at 10.)
Countering Davis’ contentions, the State maintains that the state court applied the correct standard of law as to materiality. Also relying on
Kyles, supra,
the State argues that the Alabama Court of Criminal Appeals was not required to analyze the allegedly suppressed evidence “collectively” because it specifically held that two of the three categories of undisclosed evidence of which Davis complains were neither favorable to the defense nor suppressed by the State.
16
(Doc. No. 94 at 50.) “In other words,” the State says that “courts are not required to determine whether the non-disclosure of multiple
Brady
items would have, when taken together, created a reasonable probability that the outcome of the proceedings would have been different unless the court first determines that the evidence was, in fact, favorable to the defendant and suppressed by the State.”
(Id.)
The State continues: “Because the Court of Criminal Appeals found that Davis failed to prove that two of the three items that he alleges constitute
Brady
material were favorable to him, its failure to analyze the materiality of these [three] items cumulatively did not constitute error.”
(Id.
at 51.)
Moreover, the State contends that the Alabama Court of Criminal Appeals “correctly found” that Smith’s two prior convictions for sexual assault — i.e., the third category of undisclosed evidence — were not material because Smith’s testimony was “strongly” corroborated by other evidence, and, therefore, “there is not a reasonable probability that had those convictions been known to the defense, the outcome of the trial would have been different.” (Doc. No. 94 at 38-41);
Davis,
720 So.2d at 1028 . In addition, the State contends that the Alabama Court of Criminal Appeals reasonably determined that the State cannot be deemed to have “knowledge” of those convictions, where its search of the National Criminal Information Center database did not reveal the convictions and where the special prosecutor to whom Davis refers above ceased representation of the State “at least one year before the trial began.” (Doc. No. 94 at 43-44.) The State also asserts that “there was no suppression” because, “although not mentioned by the Court of Criminal Appeals, ... Smith’s prior convictions were public records”; thus, the State argues that this evidence was available from another source.
(Id.
at 45.) It also contends that defense counsel “could have simply asked Smith while on the witness stand whether he had any prior felony convictions.”
(Id.
at 46.)
2. The State Court Decision
Davis discovered the existence of the undisclosed evidence during his state post-conviction habeas proceedings. (Doe. No. 92 at 16);
see also Davis v. State,
720 So.2d 1006, 1026 (Ala.Crim.App.1998) (ob
*1187
serving that State delayed 17 years in disclosing the alleged
Brady
material). Although Davis was unable to assert his
Brady
claim on direct appeal, Davis generally complained in that proceeding that “the trial court’s refusal to order the state, pursuant to [Davis’] discovery motion, to provide [Davis] with the criminal record of each expected witness for the state” violated
Brady v. Maryland, supra. Davis,
554 So.2d at 1100. The Alabama Court of Criminal Appeals rejected this claim on state law grounds, holding that “[i]n Alabama a defendant is not
entitled
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