# Lawhorn v. Haley

> District Court, N.D. Alabama · March 22, 2004 · 323 F. Supp. 2d 1158

URL: https://www.frixlaw.com/law-library/cases/2492696

## Case

- **Full name:** James Charles LAWHORN, Petitioner, v. Michael W. HALEY, Commissioner, Alabama Department of Corrections, Respondents
- **Court:** District Court, N.D. Alabama
- **Decided:** March 22, 2004
- **Citations:** 323 F. Supp. 2d 1158; 2004 U.S. Dist. LEXIS 12684; 2004 WL 1488677
- **Precedential status:** Published
- **Opinion:** Opinion by Davis
- **Judges:** Davis
- **Cited by:** 2 later opinions in the Frix Law Library

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## Opinion text

MEMORANDUM OPINION
DAVIS, United States Magistrate Judge.
The magistrate judge filed a report and recommendation on February 11, 2004, recommending this petition for writ of ha-beas corpus filed pursuant 28 U.S.C. § 2254 be granted. Petitioner and respondent filed objections.
The court has carefully reviewed and considered
de novo
all the materials in the court file, including the report and recommendation and the objections thereto. The objections of each party shall be addressed separately, beginning with petitioner’s objections.
Petitioner’s Objections
I.
Rule 32 Order
Petitioner contends the magistrate judge erred when he recommended the findings made by the Rule 32 trial court in its order denying petitioner relief constituted an “adjudication” within the meaning of 28 U.S.C. § 2254 (d), which petitioner contends is defined in Black’s Law Dictio
*1165
nary as “ .... the process of judicially deciding a case.” (Document # 27, at 17-18). Petitioner argues that “the Circuit Court merely signed [an] order [drafted by the state], without adding or deleting a word or comma.”
Id.
at 18 . Thus, he concludes the Circuit Court did not adjudicate
{e.g.,
engage in the process of judicially deciding) this case. Petitioner cites
Helton v. Secretary for Dept. of Corrections,
233 F.3d 1322, 1326-27 (11th Cir.2000), to support this conclusion, in which he argues the state court “correctly concluded that federal law was ignored in state court habeas summary denial decisions which contained, ‘no reasoning, analysis, findings of fact, or legal basis for denial of ... claims.’ ” (Document # 27, at 18) (citing
Helton,
233 F.3d at 1326-27 ).
Petitioner’s claims are without merit. The Circuit Court in petitioner’s case did not summarily deny his Rule 32 petition. The Circuit Court signed a sixty-seven (67) page Order ruling on the issues presented by petitioner in his Rule 32 petition. The content of that Order contains reasoning, analysis, findings of fact and legal analysis. What petitioner is truly complaining about is the trial court’s adoption of an order proposed by the state. Such action does not translate into a failure by the trial court to make its own decisions concerning the issues presented in the Rule 32 petition.
II.
Batson
Petitioner also presents three reasons why he believes the magistrate judge erred in failing to recommend relief based upon his
Batson
claim. Petitioner contends he has provided prima facie evidence the prosecutor used “its peremptory ch'al-lenge[s] ... to exclude 8 out of 14 black venire members (57%) but struck only 1Ó out of 24 white venire members (29%) who were qualified to serve as jurors.”
Id.
at 19. However, the magistrate judge discounted this evidence by misconstruing the record on appeal, thus recommending that any prima facie evidence of discrimination was eroded because petitioner also struck black venire-members and because three black venire-members were chosen to serve on the jury.'
With regard to the first reason, petitioner contends the facts “before the court on direct appeal were the same as the facts on collateral review and in federal court.”
Id.
at 21. Petitioner argues he did not introduce new facts into the record. Instead, counsel contends he is permitted to “analyze [those facts] in any way which a court finds persuasive.”
Id.
(citing
Muller v. Oregon,
208 U.S. 412 , 28 S.Ct. 324 , 52 L.Ed. 551 (1908)(the Brandéis brief)). ‘
Petitioner declares his analysis of the
Batson
issue in this case shows the magistrate judge should have considered petitioner’s proposed method of statistical analysis to be in the nature of a “Brandéis brief.”
Id.
Moreover, the magistrate judge should have found “[i]t ... useful to compare” the number of jurors struck in Mhxine Walker’s (petitioner’s co-defendant) trial to those struck in petitioner’s trial. In Maxine Walker’s case (which involved the same District Attorney who prosecuted petitioner’s case), the Court of Criminal Appeals found a prima facie case of discrimination because D.A. Rumsey “struck 11 of the 15 black venire members (73%) as contrasted with 9 of the 36 white venire members (25%)”, .... “even though four blacks served on Walker’s jury.”
Id.
at 24 (citing
Walker v. State,
586 So.2d 49 (Ala.Cr.App.1991)).
Second, petitioner contends the fact petitioner struck three potential black venire members himself is irrelevant to the question of whether petitioner has established a prima facie case of discrimination. Bui
v. Haley,
279 F.3d 1327 , 1339 n. 17 (11th Cir.2002).
*1166
Finally, petitioner contends that the magistrate judge’s reliance on
Central Alabama Fair Housing Center v. Lowder Realty Co.,
236 F.3d 629, 638 (11th
Cir.2000)(“Central
”), is misplaced, as that court’s assertion “that the unchallenged presence of a particular race on a jury substantially weakens the basis of a prima facie case of discrimination under p[e]r-emptory striking of jurors of that race[,]” is mere dicta in light of
Cochran v. Herring,
43 F.3d 1404, 1412 (11th Cir.1995).
Conclusion
Petitioner is correct that even if a defendant also arguably has unclean hands because he too struck members of a particular race from a jury venire, same is irrelevant in the consideration of whether petitioner has made a prima facie case of discrimination. Thus, that portion of the magistrate judge’s report and recommendation is due to be rejected.
Petitioner now clarifies he only introduced “the Fisher exact test” and the formulation of the jury in Maxine Walker’s casé as “Brandéis brief facts,” not as evidence in support of nor proof of á prima facie case of discrimination.
Logiodice v. Trustees of Maine, Cent. Institute,
296 F.3d 22 , 30 (1st Cir.2002). He concludes the magistrate judge could have found same to be persuasive or helpful.
This court finds a review of the Fisher exact test to be unnecessary because the magistrate judge recommended the percentage of black jury venire-members struck in petitioner’s case should be considered statistically significant. (Report and Recommendation, at 33 (citing
Central,
236 F.3d at 637 )). “‘[A] challenge rate nearly twice the likely minority percentage of the venire strongly supports a prima facie case under
[Batson
].’ ” (other citation omitted)). Second, the statistical impact of black venire members struck in Walker’s case was far greater than in petitioner’s case.
Further, the magistrate judge’s reliance on
Central
is not flawed, nor is the material portion of
Central
to which he referred mere dicta in light of
Cochran v. Herring,
43 F.3d 1404, 1411-12 (11th Cir.1995). In
Cochran ,
the Eleventh Circuit quoted
United States v. Allison,
908 F.2d 1531, 1537 (11th Cir.1990),
cert. denied,
500 U.S. 904 , 111 S.Ct. 1681 , 114 L.Ed.2d 77 (1991), writing,
In
Allison ,
the Government used three out of six peremptory challenges to strike black jurors. However, the
[Allison
] court found that the “unchallenged presence of three blacks on the jury undercuts any inference of impermissible discrimination that might arise simply by the striking of other blacks.”
The
Cochran
court went on to state, “although the seating of the jury is a significant fact, it does not bar a finding of racial discrimination.
Allison,
908 F.2d at 1537 .”
Id.
at 1412. Petitioner argues
Cochran’s
holding means “the presence of some blacks on the jury [are] insufficient to rebut [a] prima facie case.” (Document # 27, at 20). Thus, he contends evidence of blacks on the jury can only be rebuttal evidence in response to a prima facie showing of racial discrimination.
However, the
Cochran
court did not find such evidence was only relevant to the state’s burden of showing a racially neutral reason for striking jurors after a prima facie case had been established. Further, the United States Supreme Court in
Bat-son
instructed trial courts to consider all relevant circumstances when deciding whether a defendant has made a prima facie showing of discrimination.
Batson v. Kentucky,
476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). It wrote,
A defendant making allegations regarding the improper use of peremptory
*1167
strikes against jurors of a suspect class “may make out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an
inference
of discriminatory purpose .... Once the defendant makes the requisite showing, the burden shifts to the State to explain adequately the racial exclusion.” (emphasis added).
Id.
at 94 , 106 S.Ct. 1712 (citing
Washington v. Davis,
[ 426 U.S. 229, 239-242 , 96 S.Ct. 2040, 2047-2049 , 48 L.Ed.2d 597 (1976)) land
Alexander v. Louisiana,
[ 405 U.S. 625, 632 , 92 S.Ct. 1221, 1226 , 31 L.Ed.2d 536 (1972) ]. Elsewhere, the Court repeated that it was the. defendant’s burden to
show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury ... raises the necessary inference of purposeful discrimination.
Batson,
476 U.S. at 96 , 106 S.Ct. 1712 .
Thus, it was in the Alabama Supreme Court’s discretion to review the entire record, and take into consideration the percentage of black venire persons struck by the prosecutor and seated on the jury when considering whether petitioner made a prima facie case of discrimination. It was also within that Court’s discretion to determine, based upon the statistical information and the make up of the jury, that petitioner failed to establish a discriminatory inference created by the prosecution’s use of peremptory strikes. Accordingly, the state court’s decision was not contrary to federal law nor was it an unreasonable interpretation of the facts in light of the evidence before it.
III.
Second statement
Petitioner contends the magistrate judge erred when he recommended petitioner’s' second confession was not obtained in violation of petitioner’s right to counsel pursuant to
Miranda v. Arizona,
384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966) or
Edwards v. Arizona,
451 U.S. 477 , 101 S.Ct. 1880, 1885 , 68 L.Ed.2d 378 (1981).
Id.
at 26. Petitioner argues his five (5) day isolation and investigator Frankie Wallace’s admonishment that petitioner should “ ‘tell the truth and quit lying,’ ” was a psychological ploy designed to coerce a confession from petitioner in violation of
Miranda
and
Edwards .
Petitioner cites two cases in support of his contention that he was coerced by prolonged police custody. In
U.S. v. Gtddo,
704 F.2d 675 (2d Cir.1983), the Second Circuit found the defendant’s Miranda rights had not been violated when, after defendant’s arrest and invocation of counsel, he asked what he was arrested for' while in the police car on the way to the jail, and was told it was a drug offense, that he should consider cooperating with the police and that he should consider discussing cooperation with his attorney.
Id.
at 675 . The defendant also began asking specific questions about the details of the drug offense for which he had been arrested in the booking room of the jail, and when he received a response from the police, exclaimed “Oh Christ. Okay. I knew that one was trouble.”
Id.
The
Matter of Appeal in Maricopa County,
139 Ariz. 260 , 678 P.2d 445 (1984)(en banc), involved a juvenile offender who, after five (5) days in juvenile detention, was taken to a court hearing at which he asserted his right to remain silent and right to counsel, but then confessed to his parole officer when the officer approached the juvenile immediately after the court hearing and told the juvenile that anything he said would be kept confidential.
*1168
Neither a suggestion of cooperation nor spontaneous assertion by an adult defendant, much less a confession of a juvenile upon being informed said information would remain confidential, are comparable to the circumstances surrounding petitioner’s confession. Petitioner’s second confession was not attained in violation of his Fifth or Sixth Amendment right to counsel. In fact, his Sixth Amendment right to counsel had not yet attached because he had not been formally charged at the time he made his confession.
McNeil v. Wisconsin,
501 U.S. 171, 180 , 111 S.Ct. 2204, 2210 , 115 L.Ed.2d 158 (1991); and
Patterson v. Illinois,
487 U.S. 285, 296 , 108 S.Ct. 2389, 2397 , 101 L.Ed.2d 261 (1988).
IY.
Heinous, Atrocious, and Cruel
Petitioner contends the magistrate judge erred when he' found the state court’s finding that the petitioner’s offense was heinous, atrocious and cruel (HAC) to be neither contrary to federal law nor an unreasonable interpretation of the facts presented during state court proceedings. (Document #27, at 29-30). Specifically, petitioner contends the magistrate judge erred when he “asserted that this court is procedurally barred from considering the fact that the HAC factor was not found in either of the two co-defendants’ cases” because petitioner presents this claim for the first time in this petition.
Id.
Petitioner’s argument is without merit. The HAC factor was presented in the context of the co-defendants’ cases, but only in connection with petitioner’s ineffective assistance of counsel claims, not as part of a claim that the HAC factor is unconstitutionally vague on its face or as applied. Further, the Court of Criminal Appeals only addressed these issues as part of petitioner’s ineffective assistance of counsel claims.
Petitioner also contends the magistrate judge was mistaken when he found the Alabama Court of Criminal Appeals was correct in making its harmless error conclusion in connection with the faulty HAC jury instruction.
Id.
at 30. He believes the case
1
relied on by the magistrate judge “fail[s] to distinguish controlling Supreme Court decisions that make clear that homicides of this nature cannot, as a matter of federal constitutional law, justify the death penalty.”
Id.
at 31 (citing
Godfrey v. Georgia,
446 U.S. 420, 428-29 , 100 S.Ct. 1759, 1765 , 64 L.Ed.2d 398 (1980),
Clemons v. Mississippi,
494 U.S. 738, 740 , 110 S.Ct. 1441, 1443-44 , 108 L.Ed.2d 725 (1990) and
Maynard v. Cartwright,
486 U.S. 356, 361-64 , 108 S.Ct. 1853, 1857-59 , 100 L.Ed.2d 372 (1988)). The aforementioned cases are only material to the extent that they address the potentially unconstitutional overbreadth of a “heinous, atrocious and cruel” jury instruction and the ability of a state appellate court to cure such a deficient HAC instruction if that state has provided adequate constitutional limitations on the application of the factor in that state.
Id.
Alabama has a limiting construction of the heinous, atrocious and cruel factor. In Alabama, the HAC factor is limited to crimes “of such a nature that [are] ‘conscienceless or pitiless’ and ‘unnecessarily torturous to the victim ....’”
Id.
at 1174-75 (citing
Ex parte Whisenhant,
555 So.2d 235, 244 (Ala.1989),
cert. denied
496 U.S. 943 , 110 S.Ct. 3230 , 110 L.Ed.2d 676 (1990), quoting
Ex parte Kyzer,
399 So.2d 330, 334 (Ala.1981)). Petitioner believes the Court of Criminal Appeals did not cure the trial court’s constitutionally deficient HAC instruction because it did not recognize the proper limiting construction of the
*1169
HAC factor in Alabama. (Document # 27, at 31).
Petitioner has never disputed that his crime was conscienceless or pitiless. Instead, he stresses that for sentencing purposes in Alabama, the “unnecessarily torturous” portion of the HAC factor is analyzed by placing “the emphasis ... on the manner of the killing, not on the defendant’s actual participation.”
Id.
at 33 (citing
Ex parte Bankhead,
585 So.2d 112, 125 (Ala.1991)).
Petitioner contends the medical evidence shows the victim’s death in this case was instantaneous and therefore cannot be considered unnecessarily torturous to the victim.
Id.
at 32. Petitioner also finds fault with the appellate court’s reliance upon
Bush v. State,
431 So.2d 555, 560-60 (Ala.Cr.App.1982), in finding petitioner’s crime to be héinous, atrocious, and cruel because he believes
Bush
is distinguishable from his case.
Id.
at 33. Specifically, petitioner declares the
Bush
court found the defendant’s crime to be heinous, atrocious and cruel because the defendant shot a victim in the face to avoid later identification.
Id.
However, he fails to give proper credence to the appellate court’s finding that such a shooting took place after the victim already had been shot in the chest, and he does not acknowledge the
Bush
court’s assertion that, “Execution-type slayings evincing a cold, calculated design to kill, fall into the category of heinous, atrocious or cruel.”
Bush,
431 So.2d at 560 .
Moreover, in
Hubbard v. State,
500 So.2d 1204, 1227 (Ala.Cr.App.1986), the Alabama Court of Criminal Appeals found the defendant had committed a murder for pecuniary gain, and that the crime was heinous,. atrocious and cruel because the victim was alive and possibly conscious for a time after being shot in the mouth, lying on the kitchen floor, when the defendant returned and shot her in the head.
Id.
Regardless of the question of instantaneous death, Alabama law recognizes mental as well as physical torture, and'the state court made it clear when it found the HAC factor in petitioner’s case, it was because the victim’s last minutes of life were filled with terror.
2
Accordingly, the appellate court’s harmless error review was not contrary to nor did it involve an unreasonable application of federal law or constitute an unreasonable determination of the facts in light of the evidence presented in state court.'
Finally, this court rejects petitioner’s assertion that the magistrate judge erred when he recommended, as procedurally barred, petitioner’s argument that the HAC factor has been unconstitutionally applied by Alabama courts since the 1990s. First, petitioner admits he could have raised these arguments
3
at sentencing, on a motion for new trial, or on direct appeal, but believes he should be excused from this failure because petitioner “did not know until 1999, when the Court of Criminal Appeals expressly ruled in his case that there was no problem finding HAC for one defendant in a death penalty case and non-HAC for another.”
Id.
at 34-35. Petitioner’s claim is without merit. “In order to show cause for not raising a claim in an earlier petition, a petitioner must show ‘some external impediment prevent
*1170
ing counsel from constructing or raising the claim.’ ”
High v. Head,
209 F.3d 1257 , 1262 (11th Cir.2000) (quoting
McCleskey v. Zant,
499 U.S. 467, 497 , 111 S.Ct. 1454, 1472 , 113 L.Ed.2d 517 (1991)). “Examples of objective factors external to the defense that constitute cause include interference by officials and ‘a showing that the factual or legal basis for the claim was not reasonably available to counsel.’ ”
Id.
at 1263,
quoting Murray v. Carrier,
477 U.S. 478, 488 , 106 S.Ct. 2639, 2645 , 91 L.Ed.2d 397 (1986).
The factual and legal basis for this claim arose when Lawhorn was convicted and sentenced. It was at that point the inconsistent HAC factor findings became apparent. Petitioner could have compared his case to Maxine Walker’s case as persuasive argument to prevent a finding of the heinous, atrocious or cruel factor at his sentencing hearing,' in a motion for new trial or on direct appeal. Further, Law-horn could have presented this claim in his petition for writ of certiorari, and certainly at any level of the state collateral proceedings. Because he has failed to show legal cause for his failure to present this claim prior to the present petition, this court is procedurally barred from considering the merits of same.
Y.
Ineffective Assistance of Counsel claims.
Petitioner claims the magistrate judge erred when he found that the following ineffective assistance of counsel claim was procedurally barred because it was not raised on collateral appeal: “[Fjailure to investigate or present a cohesive defense theory and focus on relevant issues.” (Document #27, at 38). This claim has been waived by Petitioner failure to specifically present it on collateral appeal.
Nonetheless, a review of the Court of Criminal Appeals’ opinion on collateral appeal in
Lawhorn v. State,
756 So.2d 971, 981 (Ala.Cr.App.1999), shows the appellate court credited the trial court’s finding that “ ‘[tjrial counsel did investigate, prepare and present a coherent theory of defense at the guilt stage .. and did focus on relevant defenses,’ ” when it found that counsel “adequately prepare[d] and adequately presented] a defense for Lawhorn at the guilt stage.” Thus, it can be reasonably concluded that this issue was addressed on the merits by the appellate court, even if petitioner failed to raise it as a discrete issue.
However, the fact that said claim was arguably addressed on the merits does not ‘alter the magistrate judge’s recommendation that counsel was not ineffective at the guilt stage. The court agrees with the magistrate judge’s recommendation that the evidence supporting petitioner’s guilt at that phase of the trial was so strong petitioner could not establish he was prejudiced by counsel’s failure to develop a defense theory to a constitutionally significant degree. Further, any factual allegations petitioner would have offered in support of that claim are addressed in various other ineffective assistance of counsel claims discussed by the magistrate judge. Nonetheless, for the sake of clarification, that portion of the magistrate judge’s recommendation, recommending that the aforementioned claim be considered procedurally barred, is due to be rejected.
Petitioner finds fault with the magistrate judge’s assertion that ■ petitioner could have questioned counsel about their loyalty to him after he discovered one attorney was a brother to a prosecuting attorney, and further that petitioner did not reveal what information he would have divulged to those counsel if he had trusted them.
Id.
at 40. Petitioner complains that such a burden should not have been placed on an individual with a ninth grade
*1171
education. The court is unpersuaded by this argument. Moreover, petitioner has never revealed what information he would have given to counsel had he trusted them.
Second, with regard to the issue of involuntary intoxication, petitioner takes issue with the magistrate judge’s finding that
even if the evidence presented at the Rule 32 Hearing had been presented at trial, and the trial court allowed a jury instruction regarding voluntary intoxication, there is no reasonable probability that the jury would have accepted the defense of voluntary intoxication.
Id.
at 45. Petitioner declares that in making this recommendation, the magistrate judge looked at the evidence in a manner most favorable to the state, when it should have been viewed in a light most favorable to petitioner.
■ In Alabama,- “[t]he degree of intoxication required to show that a defendant was incapable of forming an intent to kill is a degree so extreme as to render it impossible for the defendant to form the intent to kill.”
Ex parte Bankhead,
585 So.2d 112, 121 (Ala.1991). After a review of the factual allegations in support of this claim, and the magistrate judge’s legal conclusions regarding same, this court is satisfied the magistrate judge did not view this claim in a light most favorable to the state. (Document # 22, at 88-91). Petitioner has simply failed to show any reasonable probability the jury would have accepted the defense of voluntary intoxication.
Next, petitioner complains the magistrate judge erred when he found counsel was not ineffective for failing to seek expert psychological testimony. (Document # 27, at 46). A review of the record, and the recommendation, shows petitioner’s argument to be without merit. Other than substance abuse, neither expert at the Rule 32 hearing found that petitioner was suffering from a mental disease or defect. One of the experts surmised that petitioner was borderline mentally retarded, while the other found petitioner to be of low average intelligence. The latter differences were based mainly upon disagreement over petitioner’s adaptive skills. Dr. Biedleman did opine that petitioner had a dependent personality, but it was within the trial court’s discretion to credit the testimony of Dr. Renfro over Dr. Beidleman concerning petitioner’s mental health, particularly when the court had an opportunity to view petitioner himself and found him to be a rather articulate individual for someone with an eighth grade education. As such, the state court’s decision was neither contrary to federal law nor was it an unreasonable determination of the facts in light of the evidence before it.
Petitioner next objects to the magistrate judge’s recommendation that the state court’s determination that mitigation evidence offered at the Rule 32 hearing was essentially the same as that offered at the sentencing hearing, and his recommendation that the state court correctly ruled trial counsel properly investigated petitioner and other witnesses for testimony, were neither contrary to or involved an unreasonable application of federal law.
In support of his objections regarding the cumulative nature of the mitigating evidence offered at sentencing, petitioner contends the following evidence was not presented at trial: an alcoholic father, abusive and alcoholic stepfathers, witness to his stepfather’s shooting death at age 6, an underprivileged childhood where he and his siblings were left to watch themselves while their mother worked or kept company with a boyfriend, transient teenage years in which he rebounded from state to state, various family members and school systems, thus becoming a high school drop out at 16, the testimony of his brother Jerry Lawhorn and aunt Datherline Law-
*1172
horn, and the fact that he was gainfully employed at the time of the murder.
Id.
at 54-58. Petitioner specifically complains neither Jerry Lawhorn nor Datherline Lawhorn testified in his behalf because they were never asked, when in fact both were aware of the trial dates but did not come to the trial, and Jerry Lawhorn stated he did not come to the trial because he did not want to miss work. The court does not find petitioner’s objections to be persuasive. Moreover, this court finds it unnecessary to perform a second analysis concerning each and every allegation heretofore listed, particularly when those allegations are adequately detailed and examined in the magistrate judge’s report and recommendation.
The remainder of petitioner’s objections consist of complaints that trial counsel failed to investigate and prepare witnesses for trial, including petitioner, petitioner’s mother and the victim’s wife; failed to adequately examine petitioner when he took the stand in his own behalf at the penalty phase; and failed to object to a pre-sentence investigation report.
Id.
at 59-70. Again, the court does not find petitioner’s objections to be persuasive and finds the magistrate judge’s analysis of these issues to be more than adequate.
VI.
The Alabama Death Penalty Statute is Unconstitutional
As admitted by petitioner, this claim is procedurally barred.
Respondent’s objections
I.
Riverside
■
Respondents contend that petitioner’s
Riverside
claim is procedurally barred becausesame was not raised at trial or on appeal. (Document #29, at 1-15). This issue was raised before the Alabama Supreme Court, reviewed, and found to harbor no reversible error. Therefore, petitioner’s
Riverside
claim is not procedurally barred and should not have been deemed barred by the state court during collateral proceedings. Moreover, this court finds it unnecessary to perform a second analysis concerning this claim, particularly when the allegations and issues objected to are adequately detailed and examined in the magistrate judge’s report and recommendation. This court is equally unpersuaded with respondents’ argument that the purpose of
Riverside
is to deter unlawful police conduct and that due to the length of time which has elapsed since petitioner’s conviction, there would be no deterrent effect by suppressing petitioner’s confession as fruit of the poisonous tree.
II.
Improper Prosecutorial Argument
Respondents contend the magistrate judge erred when he recommended the prosecutor’s remarks on patriotism be found to be improper.
Id.
at 16-22. First, respondents complain petitioner’s claim is a bare assertion unsupported by facts, and declare petitioner failed to cite that portion of the record to which he is referring. Next, respondents argue the prosecutor’s argument was not improper.
After considering same, this court finds petitioner adequately stated the claim in his petition. However, it is not convinced the argument was improper. The magistrate judge relied on
Brooks v. Kemp,
762 F.2d 1383, 1412 (11th Cir.1985), as support for his recommendation that the prosecutor’s argument was improper. In
Brooks ,
the prosecutor gave a lengthy argument to the jury about the “war on crime,” and the general criminal element, while comparing the jurors? role to that of a soldier in battle whose duty it is to kill the enemy.
In
Davis v. Kemp,
829 F.2d 1522, 1527 (11th Cir.1987), the prosecutor also spoke about patriotism and the duty of soldiers. However, unlike
Brooks ,
the prosecutor
*1173
did not ask the jury to punish the defendant because he was part of a larger criminal element. Instead, he pointed to the defendant personally and individually when arguing that the underlying circumstances of the particular crime he committed merited the death penalty. Like
Brooks ,
the prosecutor in this action made patriotic references. However, he did not inform the jurors that they had a duty to recommend the death sentence as citizen soldiers sworn to ameliorate the criminal element in an ongoing “war on crime.”
The court finds the prosecutor’s comments to be more closely akin to those of the prosecutor in
Davis v. Kemp.
Rumsey did make patriotic statements and referred to the duty of soldiers, but he also pointed to the circumstances surrounding petitioner’s crime and petitioner’s intimate involvement in that crime. Rumsey did not place his comments inside a general diatribe on the “war on crime,” nor did he strongly infer that the jury must return a recommendation of death against petitioner in order to punish the criminal element of society, thus transforming petitioner into a nameless enemy on whose shoulders the entire responsibility for crime lay. Therefore, Rumsey’s remarks did not deprive petitioner of individualized consideration before the jury, and as such, were not improper.
III.
Clarifícation regarding petitioner’s “R” and “S” claims.
The magistrate judge recommended the claims purportedly set out in Sections “R” and “S” of the petition for writ of habeas corpus be denied because same were without sufficient detail or clarity to state a constitutional violation pursuant to § 2254(e)(2). (Document #29, at 23). While respondents agree with the magistrate judge’s recommendation, they also request that this court also deny the claims because same involve only questions of state law. However, respondents fail to divulge the state law(s) for which they desire affirmation. This court declines respondents’ request.
IY.
Ineffective Assistance of Counsel.
Respondents contend the magistrate judge should have recommended petitioner’s ineffective assistance of counsel claim, the underlying basis being failure to raise and argue the
Riverside
issue on appeal, be denied on the basis that same is proee-durally defaulted.
Id.
at 23-24. In his report ahd recommendation,' the magistrate judge wrote,
The Alabama Court of Criminal Appeals incorrectly concluded that petitioner’s claim of ineffective assistance regarding the
Riverside
issue was raised for the first time on collateral appeal. Petitioner specifically identified the
Riverside
violation as an erroneous ruling by the trial court. The statement in paragraph kk, [of the petitioner second amended Rule 32 petition,] also alleges that appellate counsel was ineffective because he failed to brief issues that
were identified
in the preceding sections of the petition. The undersigned magistrate judge believes this was sufficient to put the respondent on notice that this issue was also being raised as an issue of ineffective assistance. However, for the reason set out above, this error is irrelevant to the court’s recommendation.
(Document # 22, at 18, n. 1).
This court has carefully reviewed those portions of the Rule 32 petition to which the magistrate judge referred and finds petitioner’s ineffective assistance of counsel claim is not procedurally barred.
V.
Ineffective Assistance of Counsel U(l).
Respondents declare the magistrate judge erred when he recommended that trial counsel’s failure to investigate
*1174
and develop evidence regarding mitigating evidence was not procedurally defaulted. (Document #29, at 25-26). First, the magistrate judge did recommend the claim, that counsel failed to investigate and develop evidence at the guilt phase, be deemed defaulted. (Document #22, at 81). Further, while the Alabama Court of Criminal Appeals found that the failure to investigate and develop evidence at the penalty phase was defaulted, at least as far as it applied to counsel’s attempt to obtain a psychologist for the benefit of petitioner, it also reviewed the merits of that claim.
Lawhorn v. State,
756 So.2d 971, 988-89 (Ala.Cr.App.1999). Under the plain statement rule, a federal district court may consider a claim “when a state court’s decision created an ambiguity over whether the decision was based on the merits or on the application of a procedural bar.”
Morrison v. Thigpen,
1995 WL 914616 , *6 (M.D.Ala. Jan. 19, 1995)
(citing Michigan v. Long,
463 U.S. 1032 , 103 S.Ct. 3469 , 77 L.Ed.2d 1201 (1983)).
Respondents argue the Court of Criminal Appeals did not address the heretofore described claim on the merits, and the magistrate judge took the pertinent portions of the Court of Criminal Appeals’ opinion out of context. Thus, they conclude the magistrate judge’s recommendation was based upon a false ambiguity.
Specifically, respondents contend the Court of Criminal Appeals only addressed petitioner’s claim that his trial counsel failed to obtain a psychologist, not a claim that trial counsel failed to have petitioner examined by an expert psychologist. There is no logical reason for arguing that the failure to obtain a psychologist claim is preserved but can only be considered in a vacuum, particularly when the appellate court acknowledged, through the testimony of petitioner’s attorney as accepted by the trial court, that the purpose of obtaining the psychologist was to examine the petitioner to present mitigating circumstances, that there was nothing in the assessment which could have established a mitigating circumstance, and that petitioner was not prejudiced by counsel’s failure.
Lawhorn v. State,
574 at 988 (citing Rule 32 transcript, at 466-67). Accordingly, respondents’ objection is without merit.
VI.
Ineffective Assistance of Counsel U(2)
Respondents declare the magistrate judge erred when he recommended petitioner’s claim that trial counsel was ineffective because his consultation with petitioner about his right to testify in his own behalf was procedurally barred. (Document # 29, at 26-27). Respondents admit petitioner raised this claim before the Rule 32 trial court but contend petitioner failed to raise his claim on collateral appeal nor argue the claim in his appeal brief.
The magistrate judge acknowledged petitioner did not raise the above claim on collateral appeal, a finding also made by the Court of Criminal Appeals. However, the magistrate also determined the Court of Criminal Appeals addressed the merits of the claim, and therefore recommended that this claim was not procedurally barred. Respondents complain the magistrate judge did not reference the part of the record upon which he made his recommendation. In their opinion, petitioner only argued his attorney was ineffective because he failed to adequately prepare petitioner and other witnesses to testify at the penalty phase of the trial.
The court is persuaded by respondents’ objections. The appellate court did not specifically address any failure to adequately consult petitioner about his right to testify at the penalty phase of the trial. To the extent that inadequate consultation was addressed, it was mostly in the con
*1175
text of whether petitioner and his witnesses were prepared in such a manner that more favorable testimony could be elicited about the petitioner’s background for the penalty phase of the trial.
Lawhorn v. State,
756 So.2d at 986 . However, within the same analysis the appellate court wrote,
We too have compared the testimony presented at Lawhorn’s trial and the testimony presented at the Rule 32 hearing and find that the evidence presented was essentially the same. While Lawhorn urges us to believe that more graphic details elicited during the penalty phase may have had an influential impact on the jury, this is pure speculation, especially considering the fact that Lawhorn, himself, and his mother during his trial, begged for mercy. Law-horn has not shown that his counsel’s performance was deficient in this regard; nor has he shown that he was prejudiced by his counsel’s performance.
Id.
This discussion of damaging details elicited at the penalty phase may have spurned the magistrate judge’s recommendation regarding the adequacy of trial counsel’s explanation and preparation of petitioner concerning his right to testify, especially the consequences of choosing to testify in his own behalf, and the chance that cross-examination could not only result in unfavorable (as opposed to favorable) testimony, but also destroy the benefits of any favorable testimony about his background. However, it appears to the court that this interpretation is simply too remote from the discrete issue actually addressed by the appellate court. Accordingly, the magistrate judge’s recommendation that petitioner’s claim of inadequate consultation about his right to testify at the penalty phase of the trial was not procedurally barred is due to be rejected.
VII.
Ineffective Assistance of Counsel U(ll)
Respondents contend the magistrate judge erred when he recommended that trial counsel’s failure to ask the jury to spare his client’s life was not procedurally defaulted. (Document # 29, at 28-29). Respondents admit the Rule 32 trial court mentioned this failure in its order denying the Rule 32 petition, but they argue it was only addressed within the context of failure to make a closing argument and, in any event, petitioner failed to raise the issue on collateral appeal.
In this habeas petition, petitioner argued that his counsel was ineffective for failing to ask the jury to spare his client’s life at the penalty and sentencing phase. Therefore, the magistrate judge addressed the question of procedural default at both stages. The magistrate judge recommended the penalty phase aspect of the claim be found to be procedurally defaulted but did not recommend the sentencing aspect of the claim be found to be procedurally defaulted. (Document # 22, at 79).
Further, the magistrate judge did not consider the failure of trial counsel to ask the jury to spare his client’s life as a discrete claim in the report and recommendation. This factual allegation was addressed as part of losses petitioner endured as a result of counsel’s failure to make a closing argument, which is precisely how the state appellate court considered it, a fact which is readily acknowledged by respondents.
Lawhorn v. State,
756 So.2d at 987 .
VIII.
Ineffective Assistance of Counsel. U(f)
Respondents contend petitioner did not raise counsel’s failure to call the victim’s wife as a witness as a discrete claim in his petition for writ of habeas corpus. (Document #29, at 29-31). A review of the
*1176
petition for writ of habeas corpus shows petitioner did raise this claim under the heading, “The petitioner was denied his right to effective assistance of counsel at the penalty and sentencing phases and on appeal.” (Document # 1, at 28-29). Underneath that heading, petitioner alleged his trial counsel found the wife’s testimony to be unimportant, and he also alleged Roger Appell, a criminal defense expert, expressed in his professional opinion at the Rule 32 hearing, that the failure to call her as a witness was ineffective assistance of counsel.
Id.
Further, respondents entered a denial to these allegations in their answer. (Document # 13, at 66).
Respondents now argue said allegations were not a discrete claim proffered by petitioner and request permission to amend their answer to the complaint. (Document # 30). Respondents motion is due to be DENIED. However, the only testimony that has been evoked on this matter is from petitioner’s mother and sister. Since the trial court found the testimony of these witnesses to be biased and therefore entitled to less credit, as was within his discretion, petitioner cannot show he was prejudiced by the failure of counsel to present the' victim’s alleged opinion, and as such, he is not entitled to relief on this claim. Accordingly, the magistrate judge’s report and recommendation regarding this claim is due to be rejected.
IX.
Ineffective Assistance of Counsel U(6)
The court has reviewed respondents’ objections to the magistrate judge’s recommendation that counsel’s failure to make a closing argument constituted prejudicial ineffective assistance of counsel, and finds same to be unpersuasive. (Document # 29, at 32-38). Moreover, this court finds it unnecessary to perform a second analysis concerning this claim, particularly when those allegations are adequately detailed and examined in the magistrate judge’s report and recommendation.
OPINION
For the foregoing reasons, the magistrate judge’s report and recommendation is due to be ADOPTED and his recommendations ACCEPTED, with the exception of the following portions of the recommendation described hereinbelow.
The magistrate judge’s report and recommendation is due'to be REJECTED to the extent that the magistrate judge recommended that:
(1) petitioner’s act of striking black ve-nire members was relevant to the question of whether petitioner made a prima facie discrimination claim, (2) the prosecutor’s patriotic argument at closing be deemed improper, (3) petitioner’s claim that he was denied ineffective assistance of counsel because of counsel’s failure to develop a cohesive defense theory at the guilt stage was procedurally barred, (4) petitioner’s claim of inadequate consultation about his right to testify at the penalty phase of the trial was not procedurally barred, and (5) failure to bring forth the testimony of the victim’s wife constituted ineffective assistance of counsel.
Accordingly, the petition for writ of ha-beas corpus filed by petitioner is due to be GRANTED and RELIEF is due petitioner as follows:
1. Petitioner was subjected to an unconstitutional delay in securing a judicial determination of probable cause for . his warrantless' arrest in violation of the Fourth Amendment to the United States Constitution. The appropriate remedy for this violation is suppression of the confession elicited from petitioner as a result of the delay. Therefore, petitioner’s conviction is due to be VACATED.
*1177
2. Petitioner’s trial counsel was ineffective for failing to make a closing argument in petitioner’s behalf at the penalty phase of the trial. Said failure violated petitioner’s right to counsel pursuant to the Sixth Amendment of the United States Constitution. The appropriate remedy for this violation is a new penalty hearing. Therefore, petitioner’s death sentence is due to be VACATED.
Finally, respondents’ motion to amend their answer (Document # 30) to the petition is due to be DENIED.
An appropriate order will be entered.
ORDER
In accordance with the Memorandum Opinion entered contemporaneously herewith, it is ORDERED, ADJUDGED and DECREED that the petition for writ of habeas corpus filed by petitioner is GRANTED and RELIEF shall be afforded petitioner as follows:
1. Petitioner was subjected to an unconstitutional delay in securing a judicial determination of probable cause for his warrantless arrest in violation of the Fourth Amendment to the United States Constitution. The appropriate remedy for this violation is suppression of the confession elicited from petitioner as a result of the delay. Therefore, petitioner’s conviction is VACATED.
2. Petitioner’s trial counsel was ineffective for failing to make a closing argument in petitioner’s behalf at the penalty phase of the trial. Said failure violated petitioner’s right to counsel pursuant to the Sixth Amendment of the United States Constitution. The appropriate remedy for this violation is a new sentencing hearing, which must include a new penalty hearing. Therefore, petitioner’s death sentence is VACATED.
Finally, respondent’s motion to amend his answer to the petition (Doc. # 30) is DENIED.
DAVIS, United States Magistrate Judge.
REPORT AND RECOMMENDATION
Petitioner, James Charles Lawhorn, (“Lawhorn”), represented by attorney Hank Fannin (“Fannin”) and Mark Nelson (“Nelson”), was convicted in Talladega County Circuit Court of capital murder and sentenced, on June 26, 1989, to death by electrocution by the Hon. William C. Sullivan. His conviction and sentence were affirmed on direct appeal.
Lawhorn v. State,
581 So.2d 1159 (Ala.Cr.App.1990),
aff'd,
581 So.2d 1179 (Ala.1991). The U.S. Supreme Court denied his petition for a
writ of certiorari
on November 18, 1991. 502 U.S. 970 , 112 S.Ct. 445 , 116 L.Ed.2d 463 (1991).
Lawhorn filed a petition for relief pursuant to Rule 32, Ala.R.Cr.P., on May 3, 1993. That petition was denied and he appealed to the Alabama Court of Criminal Appeals. That court affirmed the denial of relief.
Lawhorn v. State,
756 So.2d 971 (Ala.Cr.App.1999). A petition to the U.S. Supreme Court for a
writ of certiorari
was denied on June 9, 2000.
Lawhorn v. Alabama,
531 U.S. 835 , 121 S.Ct. 93 , 148 L.Ed.2d 53 (2000). Petitioner filed his pending petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on January 3, 2001.
Factual Background
The essential facts of this case are recited by the Alabama Court of Criminal Appeals in
Lawhorn v. State,
581 So.2d at 1161-62 and
Lawhorn v. State,
756 So.2d at 976-78 . The state’s evidence reflected that the victim, William Berry, was observed by a police officer on the morning of March 31, 1988, across the street from a gas station in Sylacauga, Alabama where the officer had stopped. Berry appeared to be arguing with two people later deter
*1178
mined to be Lawhorn and Lawhorn’s aunt, Altion Maxine Walker.
Later that day, a man driving an automobile belonging to Berry was seen following a truck driven by a woman and later identified as belonging to Walker. The vehicles stopped at a store on Highway 148, about one-half mile from Wiregrass Road. After buying sodas from a drink machine outside the store, both got into the truck and drove away, leaving the automobile parked in front of the store. It remained there until it was towed away by police officers on April 2,1988.
At approximately 4:00 p.m. on March 31, a man on a dirt road off of Highway 148 observed a truck which resembled Walker’s, turn down the road and come toward him. He observed two men and a woman inside the truck. The men were “fairly young men” with beards. (Lawhorn wore a beard at this time).
On April 1, 1988, Walker cashed a check for $800.00 from one account, deposited $600.00 in another account and kept $200.00.
At mid-day on April 2, 1988, a hunter discovered the body of William Berry in a wooded area about 70 feet off Wiregrass Road, approximately 2 miles from Sylacau-ga. An autopsy revealed abrasions to Berry’s forehead and 27 gunshot wounds, 16 of which were entrance wounds and 11 of which were exit wounds. Gunshots from a pistol or rifle caused four of the wounds: one entering the left side of the neck; one entering the chin and traveling to the brain causing death instantly; and two entering the left side of the chest, one of which severed the spine and spinal cord, also causing instantaneous death. The remaining wounds were caused by a shotgun. They were to both arms, the upper abdomen, the right side of the chest, the right-leg, and the right upper back. The wounds from either weapon were fatal.
Between April 2nd and 4th, officers seized a 12-gauge shotgun, a 12-gauge .00 buck Winchester shell, and an empty box of .00 buckshot from Walker’s residence. A box of Winchester Super-X .25 caliber shells was retrieved from under a shed approximately 50 feet behind the residence. Papers for the operation of a Titan semi-automatic .25 caliber pistol were found between the house and the barn, and a FIE Titan .25 caliber pistol with a clip was recovered in the driveway behind the residence.
A firearms expert determined that three spent 12-gauge shotgun shells found off the road near the scene possessed the same class characteristics as the 12-gauge shotgun recovered from the Walker residence, although he could not conclude with certainty that the spent shells had been fired from that particular gun. However, he did determine that the three .25 caliber spent projectiles recovered from the victim’s body and a spent .25 caliber cartridge found at the scene had been fired by the pistol found in Walker’s driveway. Shotgun pellets retrieved from the body and in and around the crime scene were determined to be .00 buckshot.
A fingerprint lifted from the exterior door of Walker’s truck belonged to Law-horn. A fingerprint lifted from the box of Winchester shells found under Walker’s shed belonged to Walker.
Lawhorn was arrested without a warrant on April 2, 1988. Petitioner was advised of his rights guaranteed by
Miranda v. Arizona,
384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966) by Investigator Frankie Wallis at the Sylacauga police department. Lawhorn acknowledged that he understood his rights, stated that he wished to talk, and signed a waiver form. He made no inculpatory statements on that date. However, after some questioning
*1179
occurred, petitioner asserted his right to counsel and questioning ceased.
Petitioner was then held in custody at the Talladega County jail for six days before the police sought a judicial determination of probable cause and obtained an arrest warrant for Lawhorn on April 8, 1988. During this time period he never consulted an attorney.
On April 7, 1988, Officer Wallis was walking past petitioner’s cell when Law-horn stated that he wanted to talk to Wallis. Wallis testified that he told petitioner that he could not talk to Lawhorn because of his request for counsel. According to Wallis, Lawhorn said he would waive this right. However, Wallis could not immediately stop and talk to petitioner because of another matter. About 30 minutes later, at approximately 4:00 p.m., Wallis returned and, in the presence of Ann Wallace of the district attorney’s office and Lt. Billy Pope, petitioner was again advised of his rights. Petitioner again acknowledged his understanding of his rights and his desire to talk with the officers. Petitioner also executed a waiver form stating, “I do not want a lawyer.”
No one made any threats or any promise or reward to make a statement. He stated that his aunt, Walker, had tried to hire him to kill Berry, but that he did not take any part in it and that he was in Alexander City until 5:00 p.m. on the day of the murder.'
Thereafter, petitioner was told that they believed he was lying and that he should tell the truth. Lawhorn testified that he was told by Wallis that things would be better for him if he told the truth. Wallis denied making any such statement. Nevertheless, at approximately 5:40 p.m. Law-horn gave another statement.
Petitioner stated that from the Monday before the murder to the Friday after, he stayed with his aunt, Walker. During the week, Walker told him that she was scared of Berry; that she had asked her son, Kilgore, to “beat his ass”, and that she wanted to “get rid” of him. Nearly every day, she asked Lawhorn to get rid of Berry. On Wednesday, she told him she would pay him and he said,
1
“No.” On Thursday, petitioner and Walker, in Walker’s truck, ran some errands in Alexander City. They picked up petitioner’s brother, Mac Lawhorn. On their way back to Syla-cauga, Walker asked Mac if he would be interested in making some money, and he said, “Yes.” He asked what the job was and she told him she wanted him to “get rid of William.” She was willing to pay Mac Lawhorn and the petitioner $100.00 for their services.
In Sylacauga, they went to the Otasco hardware store where petitioner retrieved a 12-gauge single-shot shotgun and four shells from the automobile of his cousin Kilgore, Walker’s son. Then, between 4:00 p.m. and 5:00 p.m., the three went to a wooded area, where, according to Walker, she and the victim “go parking.” The petitioner and Mac Lawhorn got out of the truck to wait in the woods until Walker returned with Berry. Petitioner had a pistol in his pocket that he had retrieved from Walker’s truck, and Mac Lawhorn was carrying the shotgun, which he loaded.
In less than 30 minutes, Walker returned with Berry. Petitioner and Mac Lawhorn were hiding in the woods. Berry and Walker got out of Walker’s truck, and according to Walker’s version that she later told petitioner and his brother, Walker went across the road to the bushes to “use the bathroom.” Berry went across the road with her, but he then began running up the road. Walker went to the two men and told them that Berry was running up the road. Then, Walker got into the driver’s seat of her truck, the two men lay down in the bed of the truck, and Walker
*1180
told them that she would slam on the brakes when she caught up with Berry.
According to Lawhorn’s statement, when Walker slammed on her brakes, Mac Lawhorn raised up and shot Berry in the shoulder. Berry fell to the ground, yelled, got up, and started running again. Mac Lawhorn then shot him again. Initially, Berry kept running toward the woods, but then fell to the ground. Mac Lawhorn told petitioner to make sure Berry was dead. Petitioner stated that he then walked over to the victim who was making gurgling noises. He saw that Berry fell because his feet had become tangled on a vine. He then pulled out his pistol and shot him approximately three times. They then drove away from the area.
After Walker’s son, Kilgore, got off work at 5:30 p.m., he and petitioner went back to the murder scene to look for the shotgun and pistol shells because petitioner did not want to leave any evidence. He could not find any so the two drove to Walker’s house. There, Kilgore told his mother to clean the shotgun. He also told her to get the pistol because she had a permit to carry it, and that “would show instant guilt.” However, Walker had already given the pistol to Mac Lawhorn for disposal.' As a result, petitioner-called his brother around 6:30 p.m. and told him to get the pistol. Telephone records verify that a telephone call was made at 6:40 p.m. on March 31 from Walker’s residence to petitioner’s mother’s residence. Mac Law-horn told him that he, their mother,' and their sister were going to eat and that they would be back later. Walker and petitioner went to the Lawhorns’ mother’s house to get the pistol from Mac Lawhorn. While Walker sat in her truck, petitioner got the pistol. Mac Lawhorn told Walker to ■ bring him his money the following morning, and Walker replied, “I’ll go to the bank in the morning and get the money.” Petitioner and Walker then left and returned to her house between 7:30 p.m. and 8:00 p.m. At that location, Kilgore took the pistol, put it in the trunk of his automobile, and said that he would do something with it.
On Friday morning, Walker and petitioner left Walker’s residence and “went straight to the bank” where Walker gave him $50.00 and told him it was payment for “getting rid” of Berry.
Procedural Background
In addition to the conviction and death sentence received by petitioner, Maxine Walker was convicted and sentenced to death, although the sentencing judge in her case, the Hon. Jerry Fielding, did not find that the crime was “especially heinous, atrocious or cruel.” However, Walker’s conviction was overturned on appeal for a
Batson
violation and the case has not yet been retried. Walker was the first of the three defendants to be tried.
Petitioner was tried next. , The trial lasted a day and a half. Fannin’s fee declaration reflects that, prior to trial, he spent a total of 14.5 hours in out-of-court preparation time. Of these, eight hours were spent on Octojoer 10, 1988, reviewing the death scene and investigation as to which county the crime occurred. The time spent determining which county the crime occurred in turned out to be wasted time. Although the crime occurred close to the Clay County/Talladega County line, under Alabama law a county may prosecute crimes that occur within one mile of its borders.
The remaining six and one-half hours were spent in three meetings with Law-horn, once in June 1988, once in July 1988, and once in August 1988, and preparing a motion for psychiatrist and an order appointing an investigator. Fannin filed this motion but never pursued it.
*1181
Steve Giddens, who was appointed co-counsel with Fannin on May 10, 1988, withdrew on April 3,1989, when he accepted a job at Legal Services Corporation. Mark Nelson was then appointed to represent Lawhorn as co-counsel to Fannin. Nelson opened his file on April 17, 1988, only one week before trial commenced.
The main evidence against petitioner was his confession. At the penalty phase, petitioner’s trial (and appellate) counsel, Hank Fannin (“Fannin”), called several witnesses on behalf of petitioner and petitioner also took the stand. However, after the prosecutor made the first part of his opening statement, Fannin waived closing argument based on an erroneous understanding of Alabama law. Fannin believed that if he waived his closing argument, the prosecution could not argue any further in rebuttal. This was incorrect. As a result, the prosecutor made two closing statements at the penalty phase and counsel for petitioner made none.
In addition, at sentencing, petitioner and his counsel were presented with a pre-sentence report. Petitioner claims that his trial counsel failed to object to a gratuitous recommendation of death contained in the report, gross factual errors, layers of un-confronted hearsay, and an interview conducted of petitioner without benefit of counsel. He also failed to present any testimony about his upbringing, abuse received as a child, education and other events in his life which petitioner believes would have resulted in a sentence of life without parole.
Likewise, although out of jurors who were called to deliberate in this case, the state struck 57% of the black venire members but only 26% of the white venire members, Fannin did not make a
Batson
argument on direct appeal.
The last defendant tried was Mac Law-horn (“Mac”). Mac’s counsel, unlike Fan-nin, did make a closing argument at the sentencing phase and the jury recommended a sentence of life without parole. In this case, also tried before Judge Sullivan, the court did not find the killing to be “especially heinous, atrocious or cruel.”
At the Rule 32 hearing, petitioner presented the testimony that before trial, Hank Fannin was visited by Lawhorn’s sister and mother, Shirley Hudson. Hudson told Fannin that she was' approached by the wife of the deceased, who expressed to Hudson that she was very sorry that petitioner and Mac Lawhorn had gotten involved in her husband’s murder. Further, the wife of the deceased was convinced that Maxine Walker was responsible for her husband’s death. Hudson testified that Fannin told her that this information was not important.
Attorney Roger Appell, an expert witness,' opined that trial counsel’s failure to bring forth the widow’s belief that Walker was the principal culprit either at the guilt, penalty or sentencing phase constituted ineffective assistance of counsel.
Jerry Lawhorn, petitioner’s brother, testified about petitioner’s upbringing, including the fact that petitioner suffered through several hard-drinking, abusive step-fathers. He also witnessed the shoot-, ing death of one of his step-fathers when he was only six years old. Likewise, he testified that he and petitioner were often left in the care of their sister, Debra, when théir mother would go off to visit with a boyfriend for days at a time.
Although Fannin offered no evidence as to what happened to petitioner after his 1979-80 academic year, in fact, petitioner moved to Texas to live with his father and enrolled in middle school in Grand Prairie, Texas in April 1980. Soon, petitioner’s father divorced and he and petitioner moved to Allen, Texas. Shortly thereafter, petitioner’s father was jailed for DUI and petitioner went to live with O.B. and
*1182
Sandra McClure, where he stayed approximately six months to a year.
In the fall of 1981, when he was supposed to enter the ninth grade, petitioner did not attend because his father was in jail and the people with whom he was residing did not send him to school. After his father got out of jail, petitioner went to school in Allen for six weeks. During this time, petitioner was given an aptitude test which revealed that he had not mastered basic skills such as math, reading, and writing.
In the Spring of -1981, petitioner went to live with an aunt and uncle in Lagrange, Georgia because his father was a chronic alcoholic who could not hold down a job. During this time, he did not attend school at all. He next returned to the home of his mother and step-father In Alexander City, Alabama, where he attended school from late August 1981 to November 30, 1981. He then returned to Lagrange, Georgia. However, he did not attend school again until he enrolled at Valley High School in Alabama on December 4, 1981, staying only until January 12, 1982.
On January 12, 1982, petitioner went to live with his father and started attending Troup County High School in Lagrange, Georgia. Oh April 6, 1982, petitioner left Troup County High School at age 16 and never returned. He never completed the ninth grade.
Petitioner also presented expert testimony from Mr. Appell that Fannin’s failure to make a closing argument at the sentencing phase of the trial was his most egregious mistake. However,- he also faulted Fannin for his failure to press for funds for psychiatric testimony and stated that, in his opinion, Fannin’s , failure to present evidence of petitioner’s drug use was ineffective assistance of counsel because, had it been raised, petitioner would have been entitled to a jury charge on the issue of voluntary intoxication. In addition, he found fault with Fannin’s failure to present evidence that the widow of the victim did not wish petitioner to be put to death, with his failure to rebut unfavorable statements contained in the pre-sentence record, and with his failure to ask anyone at any time to spare his client’s life. Finally, Appell asserted that Fannin’s direct examination of petitioner was deficient in that it consisted of only three questions.
Discussion
A and B. Riverside issue
Petitioner asserts that the court should order a new trial for him because (A) he was subjected to an unconstitutional delay in securing a judicial determination of probable cause for his arrest in violation of
County of Riverside v. McLaughlin,
500 U.S. 44 , 111 S.Ct. 1661 , 114 L.Ed.2d 49 (1991), and, (B) that his arrest on April 2, 1988 was unlawful as lacking in probable cause such that his alleged confession made on April 7, 1988, after five days of Virtual isolation, was fruit of his illegal arrest and should not have been introduced.
Respondent argues that this court is barred from hearing these claims based on
Stone v. Powell,
428 U.S. 465 , 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976). That case held that:
[Wjhere the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas relief on the ground that the evidence obtained in an unconstitutional search or seizure was introduced at his trial.
Stone
at 494, 96 S.Ct. 3037 . According to respondent, there is no evidence that petitioner challenged the legality of his arrest at his trial and no evidence that he was prevented from raising this claim at trial. However, it is also asserted that the record reflects Lawhorn did challenge the voluntariness of his confession at trial.
*1183
Since petitioner litigated or had the opportunity to litigate these claims' in state court, respondent contends that the court should apply the rule of
Stone v. Powell
and refuse to consider the merits of these claims.
Respondent implicitly concedes that petitioner did raise the issue concerning the legality of his arrest in his direct appeal to the Alabama Supreme Court. While not expressly addressing this issue, the Supreme Court stated the following:
Lawhorn has raised here 13 additional issues that were not presented to the Court of Criminal Appeals. The State contends that we should not consider these issues because they were raised for the first time in this Court. Because we have the power to consider any issue in a capital case concerning the propriety of the conviction and death sentence and, more importantly, because a man’s life hangs in the balance, we have fully considered each of those 13 additional issues raised by Lawhorn. In addition, we have independently searched the record for error. After careful consideration of the applicable law and after our exhaustive search of the record for error, we can find no reversible error in the proceedings below.
Ex parte Lawhorn,
581 So.2d at 1180-81. Respondent asserts that, in addition to the bar raised by
Stone v. Powell,
since these claims were raised on direct appeal to the Alabama Supreme Court and were denied by that court, 28 U.S.C. § 2254 (d) provides that habeas relief cannot be granted on claims that were adjudicated on the merits in State court proceedings. The exceptions to this rule include situations where the denial of relief for these claims in 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 proceedings.” 28 U.S.C. § 2254 (d). As noted above,
Stone v. Powell
is only applicable- where there has been an opportunity for a
full and fair litigation
of a Fourth Amendment claim.
When Lawhorn was arrested on April- 2, 1988, Alabama law required that he be arraigned within 72 hours. Ala. R.Crim.P. 4.3 (1989). However, Lawhorn was detained for six days before an arrest warrant was obtained.
Riverside
held that a delay in securing a judicial determination of probable cause exceeding 48 hours presumptively violates the Fourth Amendment.
Riverside
is “a new rule for the conduct of criminal prosecutions[, and] is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.”
Powell v. Nevada,
511 U.S. 79, 84 , 114 S.Ct. 1280, 1283 , 128 L.Ed.2d 1 (1994);
Griffith v. Kentucky,
479 U.S. 314, 328 , 107 S.Ct. 708, 716 , 93 L.Ed.2d 649 (1987). Lawhorn’s case was “not yet final” when the
Riverside
opinion was issued on May 13,1991. His conviction was not final until the U.S. Supreme Court denied cer-tiorari in October 1991.
The essence of a
Riverside
claim was raised on direct appeal to the Alabama Supreme Court [R. 30, Brief in Support of Petition for Writ of Certiorari to the Alabama Court of Criminal Appeals at 53-54], and rather than finding it procedurally defaulted, the Alabama Supreme Court denied the claim on its merits.
Ex parte Lawhorn,
581 So.2d at 1180-81. As noted above, where a claim is adjudicated on its merits ■ in state court, a writ of habeas corpus can not be granted with respect to such claim unless,
inter alia,
it 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.
*1184
The U.S. Supreme Court has
1
concluded that a state court decision is “contrary to” clearly established Supreme Court precedent when “the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or ... the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts.”
Williams v. Taylor,
529 U.S. 362, 413 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000). Petitioner asserts that the decision of the Alabama Supreme Court, on, direct appeal, and the decision of the Alabama Court of Criminal Appeals, in the appeal from the denial of his Rule 32 petition, regarding this claim is contrary to the U.S. Supreme Court’s decision in
Riverside.
Both the discrete and ineffective assistance
Riverside
issues were set forth in petitioner’s Rule 32 petition. [R. 37, Petitioner’s. Second Amended Petition]. It states:
A.
The defendant was subjected to unconstitutional delay in securing a judicial determination of probable cause for his warrantless arrest.
7. The defendant was arrested on April 2, 1988, and was thereafter detained for five days before a probable cause hearing was held and an arrest warrant was obtained.
8. As a result, the defendant was denied his Fourth Amendment right under the United States Constitution to a prompt, fair, and reliable determination of probable cause within 48 hours of his arrest as a condition for pre-trial restraint of liberty.
Baker v. McCollan,
443 U.S. 137, 142-43 , 99 S.Ct. 2689 , 61 L.Ed.2d 433 (1979);
Riverside v. McLaughlin,
500 U.S. 44 , 111 S.Ct. 1661 , 114 L.Ed.2d 49 (1991);
Waldrop v. State,
523 So.2d 475, 490 (1987).
See
Ala.Crim.P.R. 4.3.
B.
The petitioner’s unlawful arrest violated his rights under Alabama Law and the Fourth, Eighth and Fourteenth Amendments of the United States Constitution, and, therefore, confessions obtained as a result of that arrest should have been suppressed.
Id.
at 3.
p) [Trial] Counsel failed to lay a proper foundation by which the judge could rule that the second confession made by the defendant was not voluntary.
Id.
at 35.
kk) [Appellate] Counsel failed to provide effective assistance of counsel on appeal to the Alabama Court of Appeals. They failed to brief numerous meritorious issues on appeal, including but not limited to various issues identified elsewhere in this petition.
Id.
at 38.
With regard to the ineffective assistance claim as it relates to the
Riverside
issue, the court finds that the record clearly reflects that, though not citing
Riverside
by name, the
Riverside
claim was raised at both trial and on direct appeal and was specifically addressed by the Alabama Supreme Court when it found all otherwise unaddressed issues raised by petitioner to be without merit.
1
*1185
There can be no finding of ineffective assistance for failure to raise an issue at trial or on appeal when the record reflects that the issue was, in fact, raised. Therefore, petitioner’s claim that trial counsel was ineffective for failing to raise the
Riverside
claim and seek the suppression of the resulting confession is without merit.
With regard to the discrete
Riverside
claim and the related confession, the Rule 32 court held that petitioner’s claims (A) that the State failed to secure a determination of probable cause for the warrantless arrest and (B) that his statements obtained as a result of this arrest should have been suppressed, were barred from review, at least in part, because they were raised on appeal. [Tab 42, Order Denying Rule 32 Relief at 5], On appeal, the Alabama Court of Criminal Appeals stated that Lawhorn’s claim that the trial court erred in its admission of allegedly illegally obtained statements made by him on April 7, 1988, was procedurally barred pursuant to Ala.R.Crim.P. 32.2(a)(2) and (4), because it was raised and addressed at trial and/or on appeal.
Lawhorn v. State,
756 So.2d at 994 . The court also stated that Lawhorn’s claim that his arrest was unlawful under Alabama law and the Fourth, Eighth, and Fourteenth Amendments to the United States Constitution, and therefore, the confession obtained as a result of that arrest should have been suppressed is procedurally barred . pursuant to Rules 32.2(a)(3) and (4) because it could have been but was not raised at trial, and was addressed on appeal.
Id.
at 996 .
Even though
Riverside
was made retroactive to cases not yet final on direct appeal, the decision was not delivered until 3 days after the ruling of the Alabama Supreme Court denying petitioner’s direct appeal. Therefore, it cannot be said that this issue was “clearly established” at the time of this decision.
2
However, because the rule in
Riverside
is retroactive to cases that were not final at the time the decision was rendered, the trial court’s decision
is
contrary to the law of the United States Supreme Court.
3
Since
Riverside
was decided
after
the Alabama Supreme Court denied petitioner’s direct appeal, but before the appeal was final, it is applicable to Lawhorn’s case. Furthermore, this rule was “clearly established” law by the time petitioner raised the issue in his Rule 32 petition and the Alabama Court of Criminal Appeals was obligated to revisit the issue because the change in law was retroactive in petitioner’s case.
Nevertheless, it failed to do so.
Anderson v. Calderon,
232 F.3d 1053, 1069-70 (9th Cir.2000). A four day delay in validating a defendant’s arrest before a magistrate is presumptively unreasonable, violating the Fourth Amendment to the U.S. Constitution.
Powell v. Nevada,
511 U.S. at 83-84 , 114 S.Ct. at 1283 .
4
*1186
However, there is much confusion over the appropriate remedy for a
Riverside
violation. The Supreme Court has specifically declined to address this issue.
Powell v. Nevada,
511 U.S. at 85 , 114 S.Ct. 1280 . Although suppression of evidence has been a preferred remedy for a Fourth Amendment violation,
see Brown v. Illinois,
422 U.S. 590 , 95 S.Ct. 2254 , 45 L.Ed.2d 416 (1975), it is not the automatic remedy for any such violation.
See Arizona v. Evans,
514 U.S. 1, 10 , 115 S.Ct. 1185 , 131 L.Ed.2d 34 (1995).
While determining the appropriate remedy for this violation, it is important to recall that the very purpose of the exclusionary rule is based on the need and the ability to guide police conduct.
See United States v. Leon,
468 U.S. 897, 916 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984) (exclusionary rule not applicable because police -error not intentional). The Ninth Circuit Court of Appeals has concluded that the appropriate remedy for a
Riverside
violation is the exclusion of the evidence in question
if
it was “fruit of the poisonous tree.”
Anderson v. Calderon,
232 F.3d at 1071 . That court observed that such an approach ensures that courts will not suppress evidence causally unrelated to the Fourth Amendment violation. At the same time, it protects the arraignment right in question by barring any exploitation of the delay that causally produces a statement.
Id.
The undersigned magistrate judge has been unable to locate any Eleventh Circuit case law on this point, but the approach of the Ninth Circuit is both reasonable and comports with the holdings of the U.S. Supreme Court regarding the suppression .of evidence.
See Brown v. Illinois, supra.
The undersigned magistrate judge finds a record of uncontradicted evidence showing that Lawhorn was given his
Miranda
rights on the day he was arrested, that he subsequently invoked his right to counsel, and thereafter, it was he who re-initiated contact with the police. He was once again given his
Miranda
warnings before he provided the inculpatory confession. The Court concludes that the confession was voluntary for Fifth Amendment purposes. In any case, the trial court’s ruling that the statement was admissible for Fifth Amendment purposes
is
protected from review by
Stone v. Powell, supra.
However, the Supreme Court noted in
Brown
that “[i]n order for the causal chain, between the illegal arrest and the statements to be broken,
Wong Sun [v. United States,
371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963)] requires not merely that the statement meet the Fifth Amendment standard of voluntariness but that it be sufficiently an act of free will to purge the primary taint.
Wong Sun
thus mandates consideration of a statement’s admissibility in light of the distinct policies and interests of the Fourth Amendment.”
Brown,
422 U.S. at 601-02 , 95 S.Ct. 2254 , 45 L.Ed.2d 416 (internal citations and quotation marks omitted).
The government has the burden of showing a sufficient break in events to undermine the inference that the confession was caused by the Fourth Amendment violation.
Oregon v. Elstad,
470 U.S. 298, 306 , 105 S.Ct. 1285 , 84 L.Ed.2d 222 (1985). In
Brown ,
the Supreme Court set forth the following factors for courts to consider in determining the existence of a sufficient break: (1) the presence or absence of
Miranda
warnings; (2) the temporal proximity of the arrest and the confession; (3) the presence of intervening circumstances; and (4) the purpose and
*1187
flagrancy of the official misconduct.
Brown,
422 U.S. at 603-04 , 95 S.Ct. 2254 . The voluntariness of the confession is a threshold requirement in a “fruit of the poisonous tree” analysis.
Id.
at 604 , 95 S.Ct. 2254 . As to the four
Brown
factors, the court’s analysis is as follows:
First, the record of petitioner’s trial reflects that petitioner was advised of his
Miranda
rights on the day of his arrest, April 2, 1988. The statement given was not inculpatory. Upon further questioning by police, petitioner asserted his right to terminate further discussion in the absence of counsel and questioning ceased. Petitioner was held in custody without access to an attorney for five days. After five days of isolation, he re-initiated contact with police. He was re-advised of his rights on the afternoon of April 7, 1988, and gave another exculpatory statement. Approximately two hours later he was again questioned by police. He was not re-advised of his
Miranda
rights though reference was made to the advice of rights that he had received earlier in the day. He then confessed. The fact that petitioner was given his
Miranda
warnings on two occasions weighs somewhat in the respondents’ favor. The length of Lawhorn’s detention and his isolation do not.
Brown’s
“temporal proximity” factor weighs heavily in Lawhorn’s favor. The inculpatory confession occurred only after he had given two exculpatory statements and after he had been in custody for five days without access to counsel. Further, this extended period of confinement without a determination of probable cause violated not only
Riverside
but also the Alabama statute in effect at that time which required arraignments to occur within 72 hours. A review of a 1988 calender reflects that April 2, 1988, was a Saturday. However, intervening weekends do not serve to justify a delay in obtaining an independent determination of probable cause by a magistrate.
Riverside,
500 U.S. at 57 , 111 S.Ct. at 1670 . In any event, even if the weekend is excluded, no determination of probable cause was made until the following Thursday, April 8, 1988. Thus, there still exists a
Riverside
violation and a violation of the Alabama statute.
Third, there were no significant intervening circumstances between the time of Lawhorn’s arrest and his confession five days later. The record does not reflect that he met or spoke with any attorney, friends or family members during this time. There is no evidence of anything that might have caused Lawhorn to finally confess, other than his extended incarceration. The burden is on the respondent to demonstrate intervening circumstances,
Riverside, id.,
and they have failed to do so.
Fourth, there is evidence that the continued detention of Lawhorn was accomplished for an improper purpose. “Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay’s sake.”
Riverside,
500 U.S. at 56-57 , 111 S.Ct. at 1670 .
Respondent argues that the confession should not be suppressed because, even assuming a
Riverside
violation, probable cause to arrest Lawhorn existed on April 2, 1988, when his co-conspirator, Maxine Walker, confessed and implicated Law-horn. While this information may have been sufficient to provide probable cause to arrest petitioner, it certainly was not enough to convict him unless Walker agreed to testify against him, which she did not do. Otherwise, her statement is inadmissible against Lawhorn at trial and the investigators had no evidence against Lawhorn unless he confessed.
Cf. United States v. Costa,
31 F.3d 1073, 1076 (11th Cir.1994)
(Bruton
violation occurs when
*1188
government seeks to introduce custodial confession of non-testifying co-defendant that incriminated co-defendant and defendant, because limiting instruction was ineffective to prevent violation of defendant’s rights of confrontation and cross-examination). By denying petitioner a prompt arraignment, law enforcement officers avoided the possibility that petitioner would be appointed counsel who would advise him not to make any further statements.
The implication gathered from the testimony submitted is that the police investigating this crime knew there was not enough evidence to convict Lawhorn and sought to keep him in jail while they gathered more evidence. This, in fact, is what the testimony shows they did. After Walker’s statement on April 2, 1988, investigators, over the next several days, gathered physical evidence from the crime scene, obtained lifts of fingerprints from a motor vehicle used in the commission of the offense, took fingerprints of the subjects, delivered the prints and the lifts to an expert for comparison, and, with the cooperation of one of Walters’ family members, recovered the firearms used in the murder from locations where they had been hidden or discarded. It is important to.note that although respondent asserts the police possessed probable cause to arrest Lawhorn on April 2, 1988, they did not obtain a judicial determination of probable cause until April 8, 1988, the day after petitioner confessed.
Thus, it appears that the only evidence of intervening events which would tend to serve as a break between petitioner’s extended incarceration and the inculpatory statement was the giving of the
Miranda
warnings. However,
Miranda
warnings alone and per se, cannot always make the act sufficiently a product of free will.
Brown,
422 U.S. at 603 , 95 S.Ct. at 2261 . Under these circumstances, the court finds that the respondent has failed to sustain the burden of showing that the evidence in question is admissible under
Wong Sun.
Therefore, the appropriate remedy for the violation of petitioner’s Fourth Amendment right in this instance is the suppression of this statement.
C. Pro-death penalty bias
Lawhorn contends that the trial court’s failure to propound questions to the jury venire concerning any pro-death penalty bias resulted in his unconstitutional conviction and death sentence. (Document # 1, at 12)
(citing Adams v. Texas,
448 U.S. 38 , [ 100 S.Ct. 2521 , 65 L.Ed.2d 581 (1980)) ].
Respondents assert that the merits of this issue were correctly addressed on direct appeal by the Alabama Court of Criminal Appeals. (Document # 16, at 16). The Court of Criminal Appeals reviewed the record and found that no reversible constitutional error occurred for two reasons. First, defense counsel did not request the trial court examine the venire on the issue nor did he propound any questions to the jury himself even though he had ample opportunity to do so.
Lawhorn v. State,
581 So.2d at 1165. In fact, the prosecuting attorney actually asked one panel of the venire whether they would automatically impose the death penalty if the defendant was found guilty, and received no affirmative reply.
Id.
Second, “immediately after the trial court asked the venirepersons if anyone had a fixed opinion against capital punishment, it asked if anyone had a fixed opinion against ‘penitentiary punishment,’ and no one responded.”
Id.
at 1166. Thus, the state court concluded that the jury selected was not constitutionally infirm.
After careful consideration, it is apparent that Lawhorn’s reliance upon
Adams v. Texas
to support his claim of trial error is faulty. While
Adams
and its progeny decree that a member of the jury venire may be examined by or at the re
*1189
quest of counsel, and challenged for cause if he harbors such a fixed opinion regard-, ing the death penalty that “those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath,” they do not mandate that the trial court conduct its own death bias
voir dire
of the jury venire
sua
sponte.
5
Therefore, Lawhorn’s petition for writ of habeas corpus is due to be denied as to this issue because there is no evidence that the state court’s decision concerning this claim was contrary to or involved an unreasonable application of federal law, or was based upon an unreasonable determination of the evidence presented in the state court proceedings.
D. Failure to change venue due to pretrial publicity
Lawhorn contends that the trial court “improperly overruled” his request for a change of venue, thereby violating his right to a fair trial as guaranteed by the Sixth, Eighth, and Fourteenth Amendments of the United States Constitution because “the murder of the victim was highly publicized in the newspapers and on the radio[, and]_various venire members indicated a familiarity or awareness of the case via the media.” (Document # 1, at 13).
Respondents reply that the Alabama Court of Criminal Appeals addressed the merits of this issue on direct appeal and correctly found that the amount of publicity that Lawhorn’s case received did not result in any prejudice to him at trial. (Document # 16, at 21-24). Lawhorn does not dispute the state court’s findings of fact with regard to the evidence surrounding this issue.
6
After careful review of the record, the positions presented by both parties, and applicable federal law, it is recommended that Lawhorn’s request for writ of habeas corpus be denied as it relates to any media saturation in Talladega County. There is no evidence that the state court’s refusal to change venue was contrary to or involved an unreasonable application of applicable federal law or constituted an unreasonable determination of the facts in light of the evidence presented in state court.
E. Batson
Lawhorn contends that during his trial the prosecution deprived him of equal protection and a fair trial “by an impartial jury comprised of a fair cross-section of the community” because the state engaged in a “racially discriminatory method of selecting a jury” in violation of the “Sixth, Eighth, and Fourteenth Amendments ....” (Document # 1, at 13). As his underlying factual basis for said violations, Lawhorn asserts that “[d]uring jury selection, the state used its peremptory challenges to exclude [8] out of [14] black venire members (57%) who qualified to serve as jurors in petitioner’s capital trial. In contrast, the prosecutor struck only 10 out of 34 white venire members (29%) who qualified to serve as jurors.
7
”
*1190
Respondents point out that while the Alabama Supreme Court did not explicitly address the above claim on direct appeal, it did conduct an independent review of the record and found no reversible error regarding the Lawhorn’s opposition to the prosecutor’s peremptory challenges. (Document # 16, at 27)
(citing Ex parte Lawhorn,
581 So.2d at 1180-81). Respondents do not dispute Lawhorn’s numerical evaluation of strikes precipitated by the prosecution, but believe that his exclusive reliance upon the statistical ratio of qualified black venire members versus qualified white venire members struck by the prosecution is “insufficient to establish a prima facie case of discrimination ....”
Id.
at 30
(citing Batson v. Kentucky,
476 U.S. 79 [, 106 S.Ct. 1712 , 90 L.Ed.2d 69 ] (1986);
United States v. Allison,
908 F.2d 1531, 1537-38 (11th.Cir.1990)). They also assert that Lawhorn himself struck three (3) qualified black venire members, and that three (3) black venire members were chosen to serve in the jury. (Document # 16, at 29). As such, respondents conclude that petitioner is not entitled to habeas relief pursuant to 28 U.S.C. § 2254 (d) because “Lawhorn has not alleged, and cannot show, that the denial of relief on this claim in 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 proceedings.’ ”
Id.
at 30-31 .
Lawhorn responds that
Batson
relied upon
Castaneda v. Partida,
430 U.S. 482, 494-95 , 97 S.Ct. 1272, 1280 , [ 51 L.Ed.2d 498 ] (1977), “which specifically endorsed the use of statistics to prove a prima facie case [of racial discrimination in the selection of the jury venire.]” (Document # 20, at 29). He further presents a law review article entitled “ ‘Selecting a Jury in Federal Criminal Trials After Batson and McCollum’ 95
Col. L.Rev.
999 (1995), in which the use of statistics to establish a prima facie case in jury selection” was examined by DiPrima.
Id.
at 29-30. He maintains that if a statistical analysis test is performed in the manner suggested by the article to the facts of his case
8
, the results show that the strikes were biased because there existed only a 5% chance that the jury would have had the same racial composition.
Id.
at 32. In other words, had the strikes been unbiased, 95% “of the time the racial composition would have been different than what occurred ....,” a percentage which to Lawhorn is so significant in and of itself that in his case a prima facie
Batson
violation is established.
Id.
Lawhorn also argues the Eleventh Circuit has previously indicated that statistics “showing discriminatory impact” may be relied upon to show “intentional discrimination.”
Id. (citing United States v. David,
803 F.2d 1567, 1571 (11th. Cir.1986)). The Eleventh Circuit has cited
United States v. Alvarado,
923 F.2d 253, 255-256 (2d Cir.1991), which states that “ ‘a challenge rate nearly twice the likely minority percentage of the venire strongly
*1191
supports a prima facie case under
[Bat-son
].’ ”
Id. (citing Cent. Ala. Fair Housing Center v. Lowder Realty,
236 F.3d 629, 637 (11th Cir.2000)).
Lawhorn presents a well developed factual and legal argument in support of the above equal protection claim. However, same cannot be said for the record on direct appeal. The entire factual basis presented on direct appeal in support of the equal protection claim consists of the following: “During jury selection, the State used its peremptory challenges to exclude eight black veniremembers.... Only fourteen black veniremembers were qualified to serve upon Mr. Lawhorn’s capital jury and the prosecutor unlawfully excluded fifty-seven percent of the eligible black jurors.” (R.30, at 10, Brief in support of Petition for Writ of Certiorari).
Analysis
When reviewing a claim of discrimination relating to improper use of peremptory challenges at trial, the Supreme Court wrote, “As in any equal protection case, the ‘burden is ... ’ on the defendant who alleges discriminatory selection of the ve-nire ‘to prove the existence of purposeful discrimination.’ ”
Batson,
476 U.S. at 93 , 106 S.Ct. 1712 ,
quoting Whitus v. Georgia,
[ 385 U.S. 545, 550 , 87 S.Ct. 643, 646-647 , 17 L.Ed.2d 599 ] (1967)
(citing Tarrance v. Florida,
188 U.S. 519 , 23 S.Ct. 402 , 47 L.Ed. 572 (1903)). A defendant making allegations regarding the improper use of peremptory strikes against jurors of a suspect class “may make out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose ... Once the defendant makes the requisite showing, the burden shifts to the State to explain adequately the racial exclusion.”
Id.
at 94, 106 S.Ct. 1712
(citing Washington v. Davis,
[ 426 U.S. 229, 239-242 , 96 S.Ct. 2040, 2047-2049 , 48 L.Ed.2d 597 (1976)) ]and
Alexander v. Louisiana,
[ 405 U.S. 625, 632 , 92 S.Ct. 1221, 1226 , 31 L.Ed.2d 536 (1972) ].
To establish a prima facie case of discrimination, the defendant must first allege that venire members were struck “from the petit jury solely by reason of their race .... ”
Powers v. Ohio,
499 U.S. 400, 409 , 111 S.Ct. 1364, 1369 , 113 L.Ed.2d 411 (1991). “Second, the defendant is entitled to rely on the fact ... that peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate.’ ”
Avery v. Georgia,
[ 345 U.S. 559, 562 , 73 S.Ct. 891, 892 , 97 L.Ed. 1244 (1953) ]. Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury ... raises the necessary inference of purposeful discrimination.”
Batson,
476 U.S. at 96 , 106 S.Ct. 1712 .
Batson
also instructed the trial court to consider all relevant circumstances when deciding whether the defendant had made a prima facie showing.
Id.
As one example of such a circumstance, the Supreme Court pointed out that “a ‘pattern’ of strikes against black jurors included in the particular venire might give rise to an inference of discrimination.”
Id.
at 97 , 106 S.Ct. 1712 . However, the Court also expressed that its examples were merely illustrative as it had “confidence that trial judges .. .will be able to decide if the circumstances concerning the prosecutor’s use, of peremptory challenges creates a prima facie case of discrimination against black jurors.”
Id.
The Supreme Court’s trust in the trial court’s ability to determine relevant factual circumstances has resulted in an effort by the trial courts to develop objective,
*1192
statistical analyses to determine whether there has been a constitutionally significant number
{e.g.
‘pattern’) of peremptory strikes against a suspect class during selection of a jury. Hence, Lawhorn’s reliance on Circuit opinions favoring a finding of discriminatory inference when a challenge rate is nearly twice the likely minority percentage of the venire. While these opinions are certainly persuasive, there are other relevant factors in Lawhorn’s case which weigh against an inference of discrimination. First, Lawhorn himself used three (3) peremptory challenges to strike black veniremen.' Second, three (3) black veniremen were chosen to serve on the jury. With regard to the latter, the Eleventh Circuit “has held that the unchallenged presence of a particular race on a jury substantially weakens the basis for a
prima facie
case of discrimination in the peremptory striking of jurors of that race.”
Central Alabama Fair Housing Center v. Lowder Realty Co., Inc. et.al.,
236 F.3d 629, 638 (11th Cir.2000).
Conclusion
The only information given to the Alabama Supreme Court in support of petitioner’s equal protection claim was that eight out of fourteen, or 57% of the black venirepersons were removed from the jury panel by the prosecution’s use of peremptory strikes. Even if this court assumes the Alabama Supreme Court reviewed the entire record after taking notice of the petitioner’s underdeveloped claim, and was able to note the number of black venire persons struck by the defendant and seated on the jury as set out above, it was still within that court’s discretion to determine that those facts weighed heavily against the discriminatory inference created by the prosecution’s use of peremptory strikes.
In light of the limited information given to the state court and the failure to put said information into context, the undersigned cannot recommend that a petition for writ of habeas corpus be granted. Even if the state court’s independent review of the record took into account all facts relevant to this claim (in spite of the petitioner’s failure to enunciate same), the United States Supreme Court’s delegation of judicial discretion in these matters to the state court means that the state court’s decision was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; nor was it a decision based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Therefore, the petition for writ of habeas corpus based upon Law-horn’s
Batson
challenge is due to be denied.
F. Illegally Obtained April 7, 1998, confession
Lawhorn contends that “while being held in custody on Saturday night, April 2, 1988,” he requested counsel, but same was not provided. (Document # 1, at 14). Further, his parents attempted to visit him the following day, but were refused.
Id.
Lawhorn was not afforded counsel from “ ‘April 3 through April 7, 1988.’ ”
Id.
On April 7, 1988, Lawhorn gave two statements to Talladega County Officials. Pri- or to his first statement, Lawhorn read and waived his rights pursuant to
Miranda v. Arizona.
A two hour time period elapsed between Lawhorn’s first and second statement, during which time “it was suggested to the petitioner that if he cooperated things would be better on him ....”
Id.
Lawhorn was not read a Miranda warning prior to his second statement.
Id.
At trial, the second statement was admitted into evidence over Lawhorn’s objection.
Id.
He argues that the admission of the second statement violated the Fifth, Sixth, Eighth, and Fourteenth Amend
*1193
ments to the United States Constitution.
Id.
Respondents assert that the state appellate court “addressed and rejected this claim on direct appeal.” (Document # 16, at 31). After a lengthy discussion regarding the testimony given during the motion to suppress at trial, the Alabama Court of Criminal Appeals determined that Law-horn “ ‘made an independent and informed choice of his own free will, that he possessed the capability to do so, and that his will was not overborne by pressures and circumstances swirling around him.
Id.
at 24,
citing Lawhorn v. State,
581 So.2d at 1167
(quoting Bui v. State,
551 So.2d 1094, 1107 (Ala.Crim.App.1988),
aff'd,
551 So.2d 1125 (Ala.1989)). Respondent contends 28 U.S.C. § 2254 (e)(1) mandates that the district court must presume the factual findings of the Alabama Court of Criminal Appeals are correct. Respondents also assert that Lawhorn has not met his burden of persuasion regarding the voluntariness of his confession pursuant to
Miranda v. Arizona,
384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), nor has he shown that deputies violated his right to counsel in contravention of
Edwards v. Arizona,
451 U.S. 477, 484-85 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981) because Lawhorn himself initiated his April 7, 1988 contact with officials, declared his willingness to waive his right to silence and counsel, and was not threatened or coerced in any manner.
Id.
at 36.
In response, Lawhorn contends that the police intentionally subjected him to five (5) days of “isolation [from requested legal counsel and family contact] to elicit an incriminating statement from [him].” (Document #20,- at 34). Further, Law-horn avers that after.his first April 7,1988, statement, “investigator Frankie Wallace” kept telling him to stop lying, tell the truth, and that things would be better on him.
Id.
Lawhorn argues that this “psychological ploy” was tantamount to continued interrogation in violation of
Edwards. Id.
at 35.
This Court has already recommended that the petition for writ of habeas corpus on the basis of any Fifth Amendment violation of the petitioner’s rights be denied.
(see infra,
Sections
A.
and
B.)
Moreover, the proper admission of the confession into evidence vitiates the possibility of any Eighth or Fourteenth Amendment Due Process claim. Finally, the Sixth Amendment right to counsel attaches after a defendant has been charged with an offense, and is therefore, inapplicable to the facts of the Lawhorn’s action.
9
G. Maxine Walker’s statement
Lawhorn contends that the trial court, over his. objection, improperly allowed the prosecution to introduce the contents of Maxine Walker’s statement through another witness on the grounds that Ms. Walker’s statement “went to the issue of probable cause, despite the fact that probable cause was not at issue in petitioner’s case.” (Document # 1, at 14-15). Maxine Walker did not testify .at Lawhorn’s trial, and as such, he was “effectively denied his constitutional right of cross-examination.”
Id.
Respondents assert that the above issue, while not expressly addressed by the Alabama Supreme Court, was denied on the
*1194
merits after an independent review of the record for error. (Document # 16, at 38). Therefore, a petition for writ of habeas corpus can only be granted if the state court’s decision was contrary to or involved an unreasonable application of federal law.
Id.
at 39. Respondents also argue that Lawhorn’s issue involves only questions of state law, or the in alternative, his complaint is without merit because Walker’s statement was offered
in camera
“for the purpose of establishing probable cause of Lawhorn’s warrantless arrest on April 2, 1988.... ” and was never presented to the jury.
Id.
The Court has reviewed this claim and concludes that there are no federal constitutional issues present. Even if a constitutional violation were present, neither Maxine Walker’s statement nor any incul-patory information connected to it were ever made known to the jury at any phase of the proceeding. Therefore, Lawhorn can establish no prejudice against him, as required by
Chapman v. California,
386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967), and his petition for writ of habeas corpus is due to be denied with regard to this claim.
H. Prosecution team witnesses
Lawhorn asserts that paralegal Ann Wallace, a member of the prosecution team, was improperly permitted to testify as to whether incriminating statements made by him were voluntary. (Document # 1, at 15). As such, his right to a fair trial was violated because the voluntariness of the alleged statements were a critical issue at trial and because of Ann Wallace’s “dual role” as a prosecutor’s assistant and witness.
Id.
Lawhorn also contends that Frankie Wallis, another member of the prosecution team, was allowed to testify against him at trial “in violation of his rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution.”
Id.
at 15-16.
Respondents assert that the Alabama Supreme Court expressly addressed the merits of this issue on direct appeal, and therefore, this court is limited to conducting a § 2254(d) review regarding same. (Document # 16, at 40).
The state supreme court found that during voir dire the prosecutor introduced Ann Wallace and Frankie Wallis as members of his prosecution team. It concluded that Frankie Wallis’ presence did not improperly influence the jury because of a longstanding rule permitting a member of the sheriffs department to remain at the prosecution table during the trial. However, the court was not pleased with Ms. Wallace’s presence throughout the trial because she introduced to the jury and acted as DA Rumsey’s secretary and trial coordinator and was also called as a prosecution witness. Wallace authenticated the tape recording of Lawhorn’s confession and chain of custody of said tape. While the court expressed dissatisfaction with this practice, it found no reversible error because Wallace’s testimony did not “concern a disputed factual matter ... material to Lawhorn’s guilt or innocence.” (Document # 16, at 42)
[citing Ex Parte Lawhorn,
581 So.2d at 1181]. As the record stood, Ms. Wallace’s testimony only concerned “ ‘the proper functioning of the tape recorder that was used to record Lawhorn’s confession and ... the chain of custody of the tape,’ ” neither of which were disputed by the petitioner.
Id.
Based upon the foregoing, the state court found that no constitutional error occurred.
This court finds no error in the state court’s reasoning in approving investigator Wallis’ presence at trial. It is acceptable and constitutional for the chief investigator to be seated at the prosecu
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tion table and testify at trial. This court also shares the state court’s concern about Mrs. Wallace. Such action skirts the constitutional line of prosecutorial misconduct in the form of improper vouching or bolstering of witness testimony by placing the prestige of the district attorney’s office behind a witness.
Donnelly v. DeChristoforo,
416 U.S. 637 , 94 S.Ct. 1568 , 40 L.Ed.2d 431 (1974); (reversal is appropriate when prejudice resulting from prosecu-torial misconduct amounts to a denial of constitutional due process.) However, because the state court’s decision is neither contrary to nor an unreasonable application of existing Supreme Court or Eleventh Circuit precedent, nor based upon an unreasonable determination of the facts in light of the evidence before it, Lawhorn’s petition for writ of habeas corpus with regard to this claim is due to be denied.
I. and N. Prosecutorial 'misconduct at guilt and penalty phase
Lawhorn makes allegations of prosecu-torial misconduct at the guilt and penalty phase of the trial. In the interest of judicial expediency, both phases shall be addressed together as they involve substantially related legal concepts.
I. Improper Conduct during Guilt Phase
Lawhorn contends that the prosecution engaged in improper conduct and argument before and during the guilt-innocence phase of the trial, which resulted in his conviction and death sentence in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
10
Respondents state that these claims, while not expressly addressed by the Alabama Supreme Court, were rejected on the merits after an independent review of the record for error. Therefore, habeas relief can only be granted if the state court’s decisions are contrary to or involve an unreasonable application of federal law, or the result of an unreasonable determination of the facts presented in state court proceedings. (Document # 16, at 44). •
The particular allegations of misconduct at trial and the recommendations regarding same are as follows:
(a) During voir dire, “[the] prosecution stated: T think the judge will charge you that sympathy and bias and that sort of thing doesn’t have any place in the courtroom.’ ” (Document # 1, at 16)
(quoting
(R. 56)). This statement did
not
misstate the law since the prosecutor specifically directed the jury to listen to the trial judge’s instructions at a later time. Therefore, the comment was not improper.
(b) “The prosecutor misled the jury as to the law on issues such as intent, murder for hire, and the acts of co-conspirators.”
Id.
With regard to the intent instruction, Lawhorn asserts that the prosecutor improperly told the jury that “intent could be gleaned from the fact that a gun had been used by [Lawhorn],” thereby unconstitutionally placing the burden of proof on the petitioner to show lack of intent.
Id. (citing
(R. 444-45)).
The prosecutor’s assertion that intent could be derived from Lawhorn’s use of a gun was not improper in this case. While said comments would certainly be improper if no underlying factual basis for same had been presented at trial, in this action there was sufficient evidence to convince a trier of fact that Lawhorn possessed a gun for the specific purpose of killing Berry. Prosecutors are allowed to draw reasonable inferences from evidence actually presented at trial during closing argument,
see Ex parte Raines,
429 So.2d 1111, 1113 (Ala.1982);
Smith v. State,
745
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So.2d 922, 932-33 (Ala.Crim.App.1999). Therefore, in this case, the prosecutor’s act of connecting Lawhorn’s possession of a weapon to the intent element of the crime was proper and did not unconstitutionally shift the burden to Lawhorn to prove that he lacked the intent to kill.
With regard to the murder for hire instruction, Lawhorn maintains that the prosecutor improperly “informed the jury that the State was not required to establish that the petitioner had committed the offense for compensation to prove ‘murder for. hire.’ ”
Id. (citing
(R. 446)). This argument is without merit. A review of the record shows that the prosecutor clearly and properly explained to the jury that to be convicted of capital murder based upon pecuniary gain, a defendant must agree to commit a murder for compensation. (R. 446). The fact that the prosecution also informed the jury that it did not matter whether the compensation was tendered before or after the murder, or not at all, is not an incorrect statement of Alabama law.
Gospodareck v. State,
666 So.2d 835, 842 (Ala.Crim.App.1993),
affirmed Ex parte Gospodareck,
666 So.2d 844 (Ala.1995).
With regard to the relevance of eo-con-spirator actions, Lawhorn claims the prosecutor improperly “suggested that the petitioner could be convicted of capital murder as a result of the intentions and actions of his co-defendants.”
Id. (citing
(R. 447)). This argument also fails. In explaining legal complicity to the jury, the prosecutor illustrated how Lawhorn’s individual acts in this particular case
(e.g.,
assisting his brother and aunt in obtaining weapons, riding in the back of a truck during the murder, etc ...) could be considered in conjunction with the intentions and actions of his co-defendants such that Lawhorn could be held legally responsible for capital murder even if he did not pull the trigger on the weapons that killed the victim. Said explanation is not an incorrect statement of Alabama law.
Ritter v. State,
375 So.2d 270, 274 (Ala.1979).
(c) During the guilt phase of the trial, “the prosecutor repeatedly commented on the ‘cold and calculated’ nature of this crime ...thereby invoking his expertise and injecting his personal opinion that this crime was especially deserving of capital punishment.
Id.
at 17
(citing
(R. 471-472)). Moreover,
(d) The prosecutor “discounted” the validity of finding the petitioner guilty of a lesser included offense, and again improperly interposed the term sympathy in connection with his personal opinion and expertise by stating, “ ‘But I’ll tell you what arguing for lesser included offense is under this evidence. That’s nothing but asking for sympathy, and I tell you what sympathy is, is (sic) letting criminals go without proper punishment, and the reason I’m up here and have so much experience is because we are reaping the benefit of past sympathies in this day’s society.’ ”
Id. (quoting
(R. 468)).
The prosecutor’s remarks made in paragraphs (c) and (d) constitute improper vouching and improper personal opinion.
Johnson v. Wainwright,
778 F.2d 623, 630-31 . (11th Cir.1985). Even though the remarks are improper, the respondents correctly point out that the burden is on Lawhorn to show that the comments rendered the proceeding so fundamentally unfair that “there is [a] reasonable probability that, had the remarks not been made, the outcome would have been different.” (Document # 16, at 47). In the instant case, the evidence of guilt was so strong that there is no reasonable probability that the jury would have found Law-horn innocent — even absent the prosecutor’s improper conduct.
(d) The prosecutor improperly instructed the jury as to “its role in the
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imposition of the death penalty leading the jury to believe it was not the responsible party for its verdict.”
Id. (citing
(R. 466)). The record reflects that the prosecutor stated, “[Lawhorn] is trying to put this great big thousand pound weight on your shoulders that you’re the responsible party at this stage if you And him guilty for giving for giving him life without and the electric chair, and that’s not what we’re about at this stage of the trial. It’s-just whether or not he’s guilty, and if he’s guilty what he’s guilty of, and if he’s innocent then turn him loose.” (R. 466). The prosecutor’s statement was not improper because it was not made to relieve the jury of its role in the penalty phase of the trial, but to clarify to the jury that its duty at the guilt phase of the trial was to decide only the guilt or innocence of the petitioner.
N. Improper Conduct during the Penalty Phase
Lawhorn contends that the prosecution engaged in the following improper conduct and arguments before and during the penalty phase of the trial, which resulted in his conviction and death sentence in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
(a) Lawhorn declares that the prosecutor improperly cross-examined him by asking if the victim was “ ‘begging for his life,’ ” when there was no factual predicate for same raised at trial, either through the statements of the co-defendants, in the previous trial of Maxine Walker, or in the State Medical Examiner’s report of instantaneous death, to justify an evidentiary basis to ask said question. (Document # 1, at
20-21).(quoting
R. 557 and 500). Respondents contend that the above issue is procedurally barred because Lawhorn was required to but did not raise this claim at trial or on direct appeal. (Document # 16, at 29-30). Respondents further assert that the state court was correct in refusing to address this issue in collateral proceedings because of same.
Id.
- at 31.
The Rule 32 trial court did find that the above issue was procedurally barred. (R.437). It is well known that “[federal courts are prohibited from reviewing a claim procedurally defaulted under state law if the last- court to review the claim states clearly and expressly that its judgment rests on a procedural bar, and the bar presents an independent and adequate state ground for denying relief.”
Davis v. Angeles,
2000 WL 284275 , *4 (S.D.Ala.2000)
(citing Harris v. Reed,
489 U.S. 255, 260-61, 263 , 109 S.Ct. 1038, 1042-43 , 103 L.Ed.2d 308 (1989)). Therefore, this court has no jurisdiction to review the constitutionality of this claim.
(b) Second, Lawhorn claims the prosecutor again wrongfully urged the jury to “shed sympathies ...” and also told jurors that ‘“You don’t come in as everyday mourners, because you have to shed those things that as all human beings we have a right to have. In a few hours when you go back home, you’re entitled to again grasp those things, to feel sorry for people .... ”
Id.
at 21.
(quoting
(R. 587)).
Lawhorn also claims that the prosecutor made various other improper comments to the jury, including: “(1) indications concerning the role of the jury with society in decline; (2) the fact that justice was equivalent to a death sentence in the petitioner’s case; (3) appeals to patriotism and a citizen’s right to impose death; (4) the supposed equation of the death penalty with self-defense .... ” (5) and the prosecutor improperly commented, on the petitioner’s failure to testify.
11
*1198
Respondents contend that the merits of claims set out in the first paragraph of this subsection were expressly addressed on direct appeal by the Alabama Court of Criminal Appeals and the Alabama Supreme Court, thereby precluding this court from granting habeas relief unless the state court’s decisions are shown to be contrary to or involve an unreasonable application of federal law or an unreasonable determination of the facts presented in state court proceedings. (Document # 16, at 31-33). They also contend that this court should not consider the merits of (b)(l)-(4) because Lawhorn failed to set out the specific factual basis for these claims or cite any portion of the record in support of same. Respondents make the same argument for (b)(5), but still address the merits because an underlying factual basis for this claim was presented to the state court.
A review of the record shows that the remainder of the prosecutor’s first comments on sympathy as well as the factual basis for complaints (b)(l)-(4) reads
in pare materia:
Mx\ Rumsey: You shed sympathies. You shed bias, and you are to judge this thing based upon the law and the evidence .... You don’t come in as everyday mourners, because you have to shed those things that as all human beings we have a right to have. In a few hours when you go back home, you’re entitled to again grasp those things, to feel sorry for people .... but I’ll submit to you this: When you’re in that jury box, that you’re to decide this case based upon the law and evidence and render a true and fair verdict based upon that.
You are, in fact, as you sit in this jury box, the conscience of this community, and I’ll submit this to you, that laws without enforcement become law no more. You know, of the things that’s always had (sic) a unique part about this country, what separates us from the other societies of this world is simply this; As citizens and as a country, we have always had the ability to do what is right for the necessary protection of our society, and as Americans we have always had that right. Sometimes we’ve been slow in doing it. We’ve even had the right to ask the citizens, the men and women of this country—
Mr. Fannin: Judge, I object to Mr. Rumsey making a patriotic speech. He’s not arguing the evidence as to mitigating and aggravating circumstances.
The Court: What did he say?
Mr. Fannin: He’s making a patriotic speech, and I object to it.
Mr. Rumsey: I am not, Your Honor. I am making a reasonable inference from the evidence.
The Court: All right. Overruled.
Mr. Rumsey: That we have a right as citizens have a duty to this country and it even goes to asking the young people of this country, the young men and women, that they may have to give their life in defense of this country, and I’ll submit this to you: If we can demand that of our citizens of this country, we also have the right to demand in the appropriate situation the proper punishment for the worst of its crimes. We may honor the dead heroes of this country, we may also execute the worse (sic) criminal in this country, and I’ll submit to you the evidence in this case shows that in fact if there is anybody in this courtroom today that believes in capital punishment, it’s that man seated right over there, because he was the Judge,
*1199
he was the jury, and he was the executioner. He tried William C. Berry, he sentenced him to death, and he carried out the sentence right then and there without one trial; and as he takes this witness stand, I’ll submit this to you; It’s the merciless people who have no mercy are (sic) now begging for mercy.
I’ll tell you what capital punishment is. It’s an ancient doctrine of self-defense. If the citizens of this country have a right to protect their family, their children, when somebody comes into their house and they have that right under the law even to the extent of taking somebodyt’s] life, [who] comes

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2492696. Public record. Not legal advice.