# Hammonds v. Allen

> District Court, M.D. Alabama · March 27, 2012 · 849 F. Supp. 2d 1262

URL: https://www.frixlaw.com/law-library/cases/8697099

## Case

- **Full name:** Artez HAMMONDS v. Richard ALLEN, Commissioner, Alabama Department of Corrections
- **Court:** District Court, M.D. Alabama
- **Decided:** March 27, 2012
- **Citations:** 849 F. Supp. 2d 1262; 2012 U.S. Dist. LEXIS 41326; 2012 WL 1030089
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Fuller
- **Judges:** Fuller
- **Cited by:** 3 later opinions in the Frix Law Library

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## Opinion text

Memorandum Opinion and Order
MARK E. FULLER, District Judge.
I. Introduction
Artez Hammonds was convicted of capital murder in the Circuit Court of Houston County, Alabama. The jury recommended the death penalty, and the trial court agreed, sentencing Hammonds to death. After his case weaved its way through Alabama’s state court system, Hammonds decided to petition this Court for a writ of habeas corpus. (Doc. # 6.) Having reviewed the state court record, and after fully considering his claims for relief, *1276 Hammonds’ habeas petition is due to be denied.
II. Factual and Procedural History The Alabama Court of Criminal Appeals summarized the facts of this case on direct appeal:
The State’s evidence tends to show the following. In the spring of 1990, Marilyn Mitchell graduated from the University of Alabama school of nursing and moved to Dothan where she was to begin her nursing career and to marry. Ms. Mitchell was 5 feet, 1 inches tall and she weighed around 110 pounds. Her friends recalled that she was a cautious individual, and that she always kept her apartment doors locked. She moved into a townhouse in Dothan where she and her fiancé intended to reside after they married later that summer. On May 14, 1990, Artez Hammonds and another individual delivered newly purchased bedroom furniture to Ms. Mitchell’s townhouse and placed the furniture in the second floor master bedroom. On the evening of May 15, 1990, Ms. Mitchell’s flaneé came to the townhouse and discovered the front door unlocked. He heard water running in the upstairs bathroom and, as he climbed the stairs, he discovered Marilyn Mitchell’s blood-soaked body lying in the hallway at the top of the stairs. He telephoned the police. The police investigation revealed that Marilyn Mitchell was apparently in the downstairs kitchen baking a cake when she was attacked. There were no signs of forcible entry. When Ms. Mitchell’s body was found at the top of the stairs, she was dressed only in a T-shirt, naked from the waist down, and she was lying on her back in a large pool of blood; her legs were spread wide apart. Forensic reports indicated that Ms. Mitchell has been repeatedly stabbed and cut with a knife in the neck and chest. The wounds to the neck perforated her jugular veins and carotid artery and caused massive bleeding. There were over 30 lacerations to the neck area, including a wound that severed the voice box. There was also evidence of ligature strangulation, possibly from Ms. Mitchell’s T-shirt, which had been used to restrain her. In the opinion of the medical examiner, all of these wounds were inflicted while Ms. Mitchell was still alive. There were two extremely violent stab wounds to the chest area, one of which penetrated Ms. Mitchell’s sternum and punctured her aorta. Another vicious stab wound to the chest actually cut through three ribs. The medical examiner opined that the stab wound that punctured the aorta was the wound that finally killed Ms. Mitchell. Swabs taken from Ms. Mitchell’s vaginal and anal cavities indicated the presence of spermatozoa, although there was no evidence of anal penetration. Semen was also found on a paper tissue found in a bedroom next to a bed; the comforter on the bed was missing. Blood spatters were also found in the home. Evidence indicates that the attacker may have cleaned up after the attack, positioned the body, smoked a cigarette, and then flicked ashes on Ms. Mitchell’s body. In addition to the comforter, Ms. Mitchell’s engagement ring and approximately $400 were also apparently taken from the townhouse.
The police investigation continued for many years without success until, in 1996, the Alabama Department of Forensic Sciences conducted DNA testing on the semen samples recovered at the crime scene and discovered that the genetic characteristics of the tested samples were more likely to be found among black males than white males. This new information led police investigators back to the furniture delivery men. Police discovered that Artez Hammonds had *1277 been convicted for the attempted murder of another woman and that he was serving a 20-year sentence at Holman Prison. Because Hammonds was a convicted felon incarcerated in an Alabama penitentiary, a sample of his blood was drawn, pursuant to the Alabama combined DNA indexing system (“CODIS”) program (see § 36-18-20, Ala.Code 1975, et seq.), and the sample was sent to the Alabama Department of Forensic Sciences for DNA analysis and comparison. The forensic scientists who conducted the DNA analysis testified that the DNA taken from Hammonds’s blood sample matched the DNA contained in the semen found on the paper tissue, the spermatozoa found on the vaginal and anal swabs, and the blood stains located on the inside of the door and baseboard of Ms. Mitchell’s home.
Additionally, Hammonds’s thumbprint was found on the telephone in the victim’s bedroom. Testimony also revealed that after the murder Hammonds had in his possession a diamond ring similar in appearance to Ms. Mitchell’s engagement ring; he later pawned the ring.
Hammonds v. State, 777 So.2d 750, 754-55 (Ala.Crim.App.1999).
The State of Alabama tried Hammonds in the fall of 1997. After a ten-day trial, a jury found Hammonds guilty of intentional murder during a rape, a capital offense under Alabama law. See Ala.Code § 13A-5^40(a)(3). The jury recommended the death penalty. The state trial judge agreed, sentencing Hammonds’ to death on December 19,1997.
Hammonds then began the process of appealing his conviction and sentence. His first appeal proved unsuccessful: the Alabama Court of Criminal Appeals affirmed his conviction and sentence in August of 1999 and denied rehearing in October of the same year. See Hammonds v. State, 111 So.2d 750 (Ala.Crim.App.1999). Hammonds’ appeal to the Alabama Supreme Court proved similarly unfruitful as the court affirmed the court of appeals and denied rehearing. See Ex parte Hammonds, 111 So.2d 777 (Ala.2000). The Supreme Court of the United States likewise declined to grant Hammonds relief, denying his petition for a writ of certiorari in early 2001. See Hammonds v. Alabama, 532 U.S. 907 , 121 S.Ct. 1233 , 149 L.Ed.2d 142 (2001).
Hammonds next filed a Rule 32 petition for relief from judgment and sentence in the Circuit Court of Houston County, Alabama. After he amended his petition twice — -once on July 11, 2002, and again on August 2 of the same year — the circuit court conducted an evidentiary hearing. And a little over a month later, the circuit court denied Hammonds’ petition. The Alabama Court of Criminal Appeals then affirmed, see Hammonds v. State, 925 So.2d 1009 (Ala.Crim.App.2005) (mem.), and denied rehearing, see Hammonds v. State, 926 So.2d 1080 (Ala.Crim.App.2005) (mem.). After the Alabama Supreme Court denied Hammonds’s petition for a writ of certiorari, see Ex parte Hammonds, 946 So.2d 543 (Ala.2005), he timely filed a petition for a writ of habeas corpus in this Court (Doc. # 1). He amended his petition less than a month later. (Doc. #6.)
III. Standards of Review
A. Substantive standard
The writ of habeas corpus allows a federal district court to order the release of a prisoner held in custody in violation of the Constitution, laws, and treaties of the United States. See 28 U.S.C. §§ 2241-2255 . Hammonds brings his claim under § 2254(a), the statutory provision giving this Court jurisdiction to review state court criminal proceedings for both constitutional and non-constitutional violations. Section 2254(d) of the Antiterrorism and *1278 Effective Death Penalty Act of 1996 (AEDPA) provides the substantive standard governing habeas review of Hammonds’ state court criminal proceedings:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
And the United States Court of Appeals for the Eleventh Circuit has elaborated on the standard of review as follows:
A federal court may not grant habeas relief unless the decision of the state court either was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254 (d).
Our review of findings of fact by the state court is even more deferential than under a clearly erroneous standard of review. “[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” Id. § 2254(e).
Our review of legal conclusions by the state courts is also especially deferential. A state court decision is contrary to the clearly established precedent of the Supreme Court “(1) if the state court applies a rule that contradicts the governing law as set forth in Supreme Court case law, or (2) if the state court confronts a set of facts that are materially indistinguishable from those in a decision of the Supreme Court and nevertheless arrives at a result different from Supreme Court precedent.” Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir.2000) (citing Williams v. Taylor, 529 U.S. 362, 406 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000)). An unreasonable application of federal law occurs when the state court “identifies the correct legal rule from Supreme Court case law but unreasonably applies the rule to the facts of the petitioner’s case” or “unreasonably extends, or unreasonably declines to extend, a legal principle from Supreme Court case law to a new context.” Put-man v. Head, 268 F.3d 1223, 1241 (11th Cir.2001).
Under the unreasonable application clause of section 2254(d), a federal habeas court may not issue the writ on the ground that, in its independent judgment, the state court applied federal law incorrectly. See Bell v. Cone, 535 U.S. 685, 698-99 , 122 S.Ct. 1843 , 152 L.Ed.2d 914 (2002). This clause imposes a “ ‘highly deferential standard for evaluating state-court rulings,’ which demands that state-court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 , 123 S.Ct. 357 , 154 L.Ed.2d 279 (2002) (quoting Lindh v. Murphy, 521 U.S. 320 , 333 n. 7, 117 S.Ct. 2059 , 138 L.Ed.2d 481 (1997)). The habeas applicant must show that the state court applied federal law to the facts of his case in an objectively unreasonable manner. See id. at 25 , 123 S.Ct. 357 . An “unreasonable application of federal law is different from an incorrect application of federal law.” Williams, 529 U.S. at 410 , 120 S.Ct. 1495 . Even *1279 clear error, standing alone, is not a ground for awarding habeas relief. See Lockyer v. Andrade, 538 U.S. 63, 75 , 123 S.Ct. 1166 , 155 L.Ed.2d 144 (2003).
Stephens v. Hall, 407 F.3d 1195, 1201-02 (11th Cir.2005) (citations omitted).
A district court must resolve all claims for relief raised in a petition for a writ of habeas corpus, no matter whether habeas relief is granted or denied. See Clisby v. Jones, 960 F.2d 925, 936 (11th Cir.1992). What this means is that this Court must address each and every one of Hammonds’ claims and sub-claims, make a decision on each, and provide reasoning for that decision. The Court must also deem any allegation of a constitutional violation as a claim for relief. See id.
B. Procedural standards
1. Exhaustion requirements
A state prisoner must exhaust the remedies available to him in state court before petitioning for habeas relief in federal court. 28 U.S.C. § 2254 (b)(1)(A). “This rule of comity reduces friction between the state and federal court systems by avoiding the ‘unseemliness’ of a federal district court’s overturning a state-court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance.” Woodford v. Ngo, 548 U.S. 81, 92 , 126 S.Ct. 2378 , 165 L.Ed.2d 368 (2006). To provide the state courts with the necessary full and fair opportunity to address his claim, “the petitioner [must] ‘fairly present’ his federal claims to the state courts in a manner to alert them that the ruling under review violated a federal constitutional right.” Duncan v. Henry, 513 U.S. 364, 365-66 , 115 S.Ct. 887 , 130 L.Ed.2d 865 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275 , 92 S.Ct. 509 , 30 L.Ed.2d 438 (1971)).
To this end, the petitioner must alert each appropriate state court “to the federal nature of the claim and a statement of the facts which entitle him to relief.” Duncan, 513 U.S. at 365-66 , 115 S.Ct. 887 ; O’Sullivan v. Boerckel, 526 U.S. 838, 845 , 119 S.Ct. 1728 , 144 L.Ed.2d 1 (1999); Picard, 404 U.S. at 277-78 , 92 S.Ct. 509 . More specifically, for exhaustion purposes, “a claim for relief ... must include references to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief.” Gray v. Netherland, 518 U.S. 152, 162-63 , 116 S.Ct. 2074 , 135 L.Ed.2d 457 (1996). In other words, the state courts must have had the “opportunity to apply controlling legal principles to the facts bearing upon [the petitioner’s] constitutional claim.” Picard, 404 U.S. at 277 , 92 S.Ct. 509 .
A petitioner has exhausted state-court remedies when he no longer has those remedies available to him, no matter the reason for their unavailability. Id. at 92-93, 126 S.Ct. 2378 . “Thus, if state-court remedies are no longer available because the prisoner failed to comply with the deadline for seeking state-court review or for taking an appeal, those remedies are technically exhausted.” Id. at 93 , 126 S.Ct. 2378 . But exhaustion in this sense does not entitle the petitioner to litigate his claim in federal court; to the contrary, federal courts consider such claims procedurally defaulted. Id.; McNair v. Campbell, 416 F.3d 1291, 1305 (11th Cir.2005) (“It is well established that when a petitioner has failed to exhaust his claim by failing to fairly present it to the state courts and the state court remedy is no longer available, the failure also constitutes a procedural bar.”); Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir.1999) (“[F]ederal courts may treat unexhausted claims as procedurally defaulted, even absent a state court determination to that effect, if it is clear from state law that any future attempts at exhaustion would be futile.”).
*1280 Rule 32.2(b) of the Alabama Rules of Criminal Procedure imposes further exhaustion requirements. Rule 32.2(b) provides that courts shall not entertain successive habeas petitions unless the petitioner can show cause why the newly raised grounds “could not have been ascertained through reasonable diligence when the first petition was heard.” Ala. R.Crim. P. 32.2(b). If a petitioner has failed to exhaust his claim and cannot meet the Rule 32.2(b) standard, the federal habeas court should consider those claims procedurally defaulted. See Woodford, 548 U.S. at 93 , 126 S.Ct. 2378 .
2. The procedural default doctrine
The procedural default rule bars a federal court from reaching the merits of a claim on collateral review when the habeas petitioner failed to follow a state’s procedural rules while presenting his federal claim in state court. Wainwright v. Sykes, 433 U.S. 72, 82 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977). “Federal review of a petitioner’s claim is barred by the procedural default doctrine if the last state court to review the claim states clearly and expressly that its judgment rests on a procedural bar ... and that bar provides an adequate and independent state ground for denying relief.” Johnson v. Singletary, 938 F.2d 1166, 1173 (11th Cir.1991) (en banc) (citations omitted). But there is a safety valve for procedurally defaulted claim: federal district courts may consider them on the merits if the petitioner can show either (1) cause for the procedural default and actual prejudice arising out of the violation of federal law, Wainwright, 433 U.S. at 87 , 97 S.Ct. 2497 , or (2) a resulting fundamental miscarriage of justice if the court does not consider the claims, Schlup v. Delo, 513 U.S. 298 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995).
To demonstrate cause for a procedural default, the petitioner must show that “some objective factor external to the defense impeded counsel’s effort to comply with the state’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 , 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986). A cause suffices if it is an “objective impediment ] to compliance with a procedural rule” so that “a showing that the factual or legal basis for a claim was not reasonably available to counsel” or “some interference by officials ... made compliance impracticable.” Id. at 488 , 106 S.Ct. 2639 (internal quotations and citations omitted). Constitutionally ineffective assistance of counsel, for example, can amount to a valid cause for noncompliance. Hollis v. Davis, 941 F.2d 1471, 1476 (11th Cir.1991).
If the petitioner can show cause, he must also show actual prejudice stemming from the alleged constitutional violation. Alexander v. Dugger, 841 F.2d 371, 374 (11th Cir.1988). Establishing actual prejudice requires a petitioner to show “not merely that errors in his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 , 102 S.Ct. 1584 , 71 L.Ed.2dd 816 (1982). “A mere possibility of actual prejudice resulting from an error at trial will not waive the procedural default where other substantial evidence of guilt is present.” McCoy v. Newsome, 953 F.2d 1252, 1261 (11th Cir. 1992). Importantly, “[b]eeause there is no constitutional right to an attorney in state postconviction proceedings ... a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings .... ” Coleman v. Thompson, 501 U.S. 722, 725 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991) (internal citations omitted).
Furthermore, a federal court can review a habeas claim on the merits to correct a “fundamental miscarriage of jus *1281 tice.” Hill v. Jones, 81 F.3d 1015, 1023 (11th Cir.1996). This requires the petitioner to “show by clear and convicting evidence that but for a constitutional error, no reasonable juror would have found the petitioner [guilty] under the applicable law.” Sawyer v. Whitley, 505 U.S. 333, 336 , 112 S.Ct. 2514 , 120 L.Ed.2d 269 (1992).
IV. Discussion
Before analyzing Hammonds’ claims on the merits, the Court will first resolve whether certain claims are unexhausted or proeedurally defaulted. 1 As a threshold matter, the parties disagree about how the Court should address these arguments, especially as to Hammonds’ claim of ineffective assistance of counsel. (See Doc. # 6 at ¶¶ 39-92.) The ineffective assistance claim (Claim B in the petition) spans 53 paragraphs and contains 25 separate subsections. (Id.) The State contends that each subsection amounts to a separate claim regarding whether Hammonds was denied effective assistance. This would mean that each argument advanced by Hammonds would have to satisfy AED-PA’s exhaustion and procedural default requirements independently. 2 Conversely, Hammonds contends that “Claim B is one claim that contains several examples and instances of ineffective assistance of counsel,” and that the Court should evaluate the claim by considering the cumulative effect of the deficiencies alleged. (Docs.# 5, 47.) According to Hammonds, the exhaustion doctrine does not preclude consideration claims supported by different factual bases than those presented to the state court unless the claim is “fundamentally” altered by the change in the factual predicate. See Vasquez v. Hillery, 474 U.S. 254, 260 , 106 S.Ct. 617 , 88 L.Ed.2d 598 (1986).
The Eleventh Circuit has addressed this very issue. In Kelley v. Secretary for the Department of Corrections, the court of appeals described the petitioner’s obligation to raise the factual bases for his claims and the consequences for failing to do so:
... the prohibition against raising nonexhausted claims in federal court extends not only to broad legal theories of relief, but also to the specific assertions of fact that might support relief. For example, habeas petitioners may not present particular factual instances of ineffective assistance of counsel in their federal petitions that were not first presented to the state courts. Footman v. Singletary, 978 F.2d 1207, 1211 (11th Cir.1992). As we explained,
allowing a habeas petitioner to allege a single instance of ineffective assistance in his state post conviction proceedings and then proceed to federal court to allege additional instances would be contrary to the state’s “full *1282 and fair opportunity to address the claim on the merits.” The state would never have the benefit of evaluating the claim using a fully developed set of facts. This would not be the “serious and meaningful” exhaustion of claims that Congress intended.
Id. .... Furthermore, habeas petitioners cannot preserve otherwise unexhausted, specific claims of ineffective assistance merely by arguing that their lawyers were ineffective in a general and unspecified way. See Weeks [v. Jones ], 26 F.3d [1030] at 1044-46 [(11th Cir. 1994) ] (rejecting petitioner’s argument that “the general claim of ineffective assistance in state court preserves for federal review all alleged instances of ineffectiveness, regardless of whether evidence of a particular act was presented to the state court”). In sum, to preserve a claim of ineffective assistance of counsel for federal review, the habeas petitioner must assert this theory of relief and transparently present the state courts with the specific acts or omissions of his lawyers that resulted in prejudice.
377 F.3d 1317, 1344 (11th Cir.2004).
The Court will analyze the disputed claims using the rule set forth in Kelley. Specifically, the Court will examine whether Hammonds asserted before the state courts each theory of relief and transparently presented the courts with specific acts or omissions by his lawyers that resulted in the claimed prejudice. If a given act or omission never came before the state courts for review, the Court will not consider it properly preserved for federal review and will not consider it when discussing the merits of Hammonds’ ineffective assistance claim. 3
After addressing the exhaustion and procedural default arguments, the Court will take up the State’s contention that some of Hammonds’ claims should be dismissed for failing to comply with the pleading standards set forth in Habeas Corpus Rule 2(c). The State claims that 21 of Hammonds’ allegations “are merely conclusory in nature, and often merely lists of allegations.” (Doc. # 68 at 51.) After disposing of unexhausted or procedurally defaulted claims, the Court will analyze whether any of Hammonds’ remaining claims are due to be dismissed as conclusory.
Next, the Court will analyze the State’s argument that Hammonds has abandoned several claims. According to the State, Hammonds abandoned a number of claims and, thus, the Court should refrain from adjudicating them on the merits. After resolving this dispute, the Court will turn to whether Hammonds is entitled to an evidentiary hearing for any remaining claims for which he requests a hearing. Finally, the Court will address any claims ripe for consideration without an evidentiary hearing, adjudicating those claims on the merits in this Memorandum Opinion and Order.
A. Unexhausted and procedurally defaulted claims
1. Hammonds’ claim of ineffective assistance of counsel (Claim B)
As the Court discussed above, each factual allegation supporting Ham *1283 monds’ ineffective assistance claim will receive independent consideration per the rule set out in Kelley v. Secretary for Department of Corrections. The State contends that Hammonds has failed to exhaust his remedies on a number of his claims, which, it argues, means they are procedurally defaulted. A petitioner fails to exhaust a claim if he did not present it during a full round of appellate review, which includes either on direct appeal or on collateral attack of the conviction. The record makes clear that Hammonds never presented his ineffective assistance claim on direct appeal, perhaps because trial counsel also represented him during the direct appeal proceedings. Accordingly, the Court will only address whether Hammonds adequately raised in his Rule 32 petition each of the ineffectiveness claims now before the Court.
a. Claim B(l)(b): Failure to follow credible lead of victim’s high school classmate
Hammonds claims he was denied the effective assistance of counsel because trial counsel failed to follow up on several leads. One lead involved a possible suspect who attended high school with the victim and her fiancé. The potential suspect allegedly told the police that they had the “wrong man” in Hammonds’ case and that he had personally cut a woman’s throat before. According to Hammonds, trial counsel should have followed this lead because doing so would have led to “the actual perpetrator(s)” of the crime. (Doc. # 6 at ¶¶ 40-44.)
The State claims that because Hammonds failed to present this argument to the state courts, it is unexhausted and thus procedurally defaulted. Hammonds disagrees, contending that because he presented his generalized ineffective assistance argument during the Rule 32 proceedings, the claim is not procedurally defaulted.
The Court has reviewed the record thoroughly and can find no mention of trial counsel’s failure to investigate leads in either Hammonds’ Amended Rule 32 Petition or his Second Amended Rule 32 Petition. But the trial court, in its Rule 32 Order, mentions that Hammonds raised counsel’s alleged failure to investigate leads during the evidentiary hearing held on August 2, 2002. (Vol. 51, R. 82, at 745 (finding “assertions were made at the evidentiary hearing,” including “that the attorneys failed to follow up on particular leads.”).) The transcript does not, however, make mention of a man that attended high school with either the victim or her fiancé. As a result, the Court must find that Hammonds did not properly raise the claim below, thereby precluding consideration of this allegation in the cumulative analysis of Hammonds’ ineffectiveness claim.
b. Claim B(2)(b): Failure to investigate Hammonds’ juvenile record and pursue youthful offender status
Hammonds argues for trial counsel’s ineffectiveness next by asserting that counsel failed to pursue youthful offender status for him adequately. (Doc. # 6 at ¶¶ 45-50.) Hammonds notes that while his attorneys filed an application for youthful offender status, they were so unfamiliar with his juvenile record that he could not properly contest the State’s arguments about the youthful offender petition. From there Hammonds explains why, had the trial court known certain facts about his juvenile record, the court would have likely granted his youthful offender petition. And if the court had granted the motion, Hammonds would have been ineligible for the death penalty. 4 The State *1284 argues Hammonds defaulted on this claim because he failed to raise it in the Rule 32 proceeding.
The State is incorrect. Hammonds’ Rule 32 motion asserts that trial counsel acted ineffectively by failing to pursue youthful offender status adequately. (Vol. 42, R. 66, at 470.) The trial court denied this claim on the merits and the Alabama Court of Criminal Appeals upheld the denial. (Vol. 51, R. 83, at 29.) This Court can therefore review the claim on the merits: Hammonds properly raised it in state court and the state courts issued a substantive ruling.
c. Claim B(3)(d): Failure to identify and interview Tim Pridget, a potential alibi witness
Hammonds argues that trial counsel was ineffective because of their failure to interview Tim Pridgen, the manager of the furniture store where Hammonds worked at the time of Mitchell’s murder. According to Hammonds, he was at work when the murder occurred, and counsel could have established this alibi by interviewing Pridgen. (Doc. # 6 at ¶ 55.) The State contends that Hammonds did not raise this issue in his Rule 32 proceeding, which means the claim is defaulted.
The State is correct to note that Hammonds’ Rule 32 motion does not mention Pridgen. It does state, however, that “counsel failed to locate and interview witnesses who could corroborate Hammonds’ alibi (Mr. Hammonds was at work at the time that Ms. Mitchell was killed).” (Vol. 40, R. 62, at 32.) Although Hammonds lays out his claim in more detail in his federal habeas petition than in his Rule 32 petition, the latter still meets the level of specificity required by Kelley. Indeed, Hammonds sufficiently pointed out to the state courts the specific acts or omissions of trial counsel that he claims amounted to ineffective assistance of counsel. Accordingly, the Court finds that Hammonds properly raised his ineffective assistance claim as it relates to trial counsel’s failure to interview Pridgen. Hence, the Court will consider the claim in the cumulative analysis of trial counsel’s alleged ineffectiveness.
d. Claim B(3)(d): Failure to identify and interview Greg Gordon as a potential alibi witness
Similar to his claim related to Pridgen, Hammonds argues that his trial counsel was ineffective for failing to interview Greg Gordon, Hammonds’ co-worker at the furniture store. (Doc. # 6 at ¶ 56.) Also like his Pridgen claim, Hammonds contends that Gordon would have corroborated Hammonds’ alibi — that he was working at the furniture store when Mitchell’s murder took place — but that trial counsel failed to get a statement from Gordon. The State again argues that Hammonds defaulted on this claim by failing to mention Gordon by name in his Rule 32 motion.
Hammonds’ Rule 32 motion states that “counsel failed to locate and interview witnesses who could corroborate Mr. Hammonds’s alibi (Mr. Hammonds was at work at the time that Ms. Mitchell was killed).” (Vol. 40, R. 62, at 32.) Like with Pridgen, this is sufficiently specific to meet the Kelley test: Hammonds pointed out the specific acts or omissions of trial counsel that he thinks constituted ineffective assistance of counsel. Therefore, the Court finds he properly raised the claim below and will consider the allegation during the cumula *1285 tive analysis of trial counsel’s alleged ineffectiveness.
e. Claim B(3)(g): Failure to interview Valerie Rivers
In his petition, Hammonds argues that trial counsel did not assist him effectively by failing to interview Valerie Rivers, Hammonds’ sister-in-law. (Doc. # 6 at ¶ 58.) Rivers testified at trial that she had seen Hammonds with a diamond ring like the one taken from the victim’s hand. Hammonds now claims that had trial counsel investigated Rivers’ story by interviewing her they would have discovered a significant amount of evidence with which to impeach her testimony. The State asserts that this claim is defaulted because Hammonds did not raise it in his Rule 32 proceeding. (Doc. # 68 at 6.)
Hammonds’ Rule 32 motion argues that trial counsel failed to assist him effectively by failing to object to the admissibility of Rivers’ testimony at trial. But it makes no mention of counsel’s ostensible failure to interview her. (Vol. 40, R. 62, at 46-47.) Nor does Hammonds’ Rule 32 allegations about counsel’s “failure to locate and interview” alibi witnesses save this newly asserted claim- — Rivers was not in fact a potential alibi witness. Hammonds’ Rule 32 petition therefore did not encompass the failure to interview Rivers. The Court accordingly finds that Hammonds’ allegation about counsel’s failure to interview Rivers is procedurally barred because he never presented the underlying facts and assertions to a state court. As a result, the Court will not consider these allegations when reviewing the cumulative evidence of trial counsel’s ineffective assistance.
f. Claim B(5)(b): Failure to challenge the State’s expert witnesses’ qualifications to give opinion testimony
Hammonds next asserts that trial counsel’s failure to challenge the qualifications of the State’s expert witness amounts to ineffective assistance. The State argues, however, that Hammonds’ Rule 32 motion never raised this claim. During the Rule 32 proceeding, Hammonds argued that his trial lawyers were ineffective for not challenging the conclusions of the State’s experts and the methods by which the State’s DNA technicians analyzed Hammonds’ blood. But the record makes no mention of counsel’s failure to question any witness’s qualifications to testify as an expert. Consequently, the Court finds that Hammonds did not properly raise this argument below. Per Kelley, the Court will not consider these allegations when deciding Hammonds’ cumulative ineffective assistance of counsel claim.
g. Claim B(6)(a): Failure to test physical evidence independently
Claim B(6) of Hammonds habeas petition states that his trial counsel acted ineffectively because he did nothing to challenge “the heart of the State’s case — the so-called ‘match’ between Mr. Hammonds and the’ tissue.’ ” (Doc. # 6 at ¶ 67.) Hammonds' also lists the actions that counsel could have taken to challenge the State’s DNA evidence, like seeing the State’s expert’s bench notes and “independently test[ing] the physical evidence.” The State takes issue with Hammonds’ raising the independent testing argument now, contending that he did not raise it during his Rule 32 proceedings.
After a thorough review of the record, the Court cannot agree with the State’s position. The trial court’s denial of Hammonds’ Rule 32 petition stated:
Petitioner’s next assertion was that his attorneys failed to have DNA tests performed. Mr. Decker testified that extensive work was done by the defense concerning DNA. He stated that while an independent test was not conducted his experts reviewed all information gen *1286 erated by the Alabama Crime Lab and FBI.
(Vol. 51, R. 82, at 719). Hammonds raised, and the trial court disposed of, the argument that trial counsel was deficient for failing to conduct an independent DNA test on the genetic material found in the victim’s apartment. Further, Hammonds’ B(6)(a) claim mirrors claim B(7), which is entitled “Trial Counsel Failed to Seek Independent Forensic Testing of Physical Evidence.” (Doc. # 6 at ¶ 24). In claim B(7), Hammonds argues that “Counsel was obligated to pursue the testing of, among other things ... the tissue (or paper towel) purportedly recovered near the victim’s bed.” The State does not challenge claim B(7) on procedural default grounds, even though a portion of B(7) is almost identical to the challenged claim B(6)(a). For these reasons, the Court finds that Hammonds’ properly raised his claim about the independent DNA testing in state court, meaning it can be considered in the cumulative ineffective assistance analysis.
h. Claim B(8)(d): Failure to object to the admission of the recording , on the victim’s answering machine
Hammonds, in Claim B(8)(d), argues that trial counsel’s failure to object to the State’s introduction of a recording left by the victim’s mother on the victim’s answering machine on the date of her death amounted to ineffective assistance. More specifically he claims that counsel should have objected to the recording as more prejudicial than probative and that this failure violated his Sixth Amendment right to effective assistance of counsel. The State conversely argues that this claim is procedurally defaulted because Hammonds never raised it in his Rule 32 petition. (Doc. # 68 at 9.)
Hammonds argued in his Rule 32 petition that trial counsel failed to assist him effectively by not objecting to several pieces of prejudicial evidence. Yet he did not list the answering machine recording as one such example. (Vol. 40, R. 62, at 39, 46.) And although Hammonds mentioned the answering machine recording in his Rule 32 petition, he did so only in the context of his prosecutorial misconduct claim. Hence he did not clearly present the factual allegations, coupled with the appropriate federal standard, to the state courts. This deprived the state courts of an adequate opportunity to rule on the merits of his claim related to counsel’s failure to object to the admission of the recording. Because the state courts never had this opportunity, the claim is procedurally defaulted. Accordingly, the Court will not consider it when addressing his cumulative ineffectiveness claim.
i. Claim B(12)(a): Failure to move to have additional counsel appointed
Hammonds’ next ineffectiveness argument centers on trial counsel’s decision to not move to have additional counsel appointed. (Doc. # 6 at ¶ 82.) The State responds by asserting that Hammonds’ Rule 32 motion did not raise this ground for an ineffectiveness claim. (Doc. # 68 at 9-10.) The State is incorrect. Hammonds’ amended Rule 32 motion states, “Among the motions trial counsel failed to pursue were their motion for appointment [of] additional counsel....” (Vol. 42, R. 66, at 472.) Because Hammonds clearly presented this claim to the state courts, the Court will consider it when adjudicating his cumulative ineffectiveness claim.
j. Claim B(12)(b): Failure to move for extraordinary expenses for the assistance of a psychiatric expert
Hammonds contends that his trial counsel were ineffective for failing to pursue a motion for extraordinary expenses for psychiatric assistance. (Doc. # 6 at ¶ 82.) Trial counsel made the motion for extraordinary expenses, but then failed to *1287 pursue the motion after the trial court deferred ruling. (Vol. 42, R. 66, at 473.) The State argues that Hammonds’ Rule 32 motion did not raise this claim of ineffectiveness. (Doc. # 68 at 10-11.) Hammonds’ amended Rule 32 motion, however, states, “Among the motions trial counsel failed to pursue were ... their motion for extraordinary expenses for expert psychiatric assistance....” (Vol. 42, R. 66, at 472.) This claim was properly raised below and this claim and must be analyzed on the merits and considered during the cumulative analysis of trial counsel’s alleged ineffectiveness.
k. Claim B(12)(d): Failure to move for an order prohibiting the prosecutor from referring to Hammonds by anything other than his given name
Hammonds also argues for trial counsel’s ineffectiveness by noting how his lawyers failed to request an order barring the prosecution from referring to Hammonds by anything other than his given name. Like with Claim B(12)(b), trial counsel moved for the order initially but failed to follow up on it after the trial court deferred ruling. (Vol. 42, R. 66 at 473.) And also like Claim B(12)(b), the State incorrectly contends that Hammonds’ Rule 32 motion did not raise this issue. Hammonds’ amended Rule 32 motion states, “Among the motions trial counsel failed to pursue were ... on their motion to prevent Mr. Valeska from referring to Mr. Hammonds at trial by anything other than his given or Christian name....” (Vol. 42, R. 66, at 473.) This suffices under Kelley to exhaust the claim, so it is not procedurally defaulted. The Court will therefore consider it.
l. Claim B(12)(e): Failure to move for an evaluation to determine Hammonds’ competency to stand trial
Hammonds contends that his trial attorneys did not assist him effectively when they failed to move for a psychiatric evaluation despite knowing that Hammonds previously suffered from visual and auditory hallucinations and had a family history of mental illness. (Doc. # 6 at ¶ 83.) Despite the State’s argument that this claim is procedurally defaulted, it too is clearly included in Hammonds’ Rule 32 petition. (See Vol. 42, R. 66, at 472 (“Their failure to move for a professional evaluation of Mr. Hammonds’s competency constituted ineffective assistance and deprived Mr. Hammonds of his right to counsel.”).) The state courts denied Hammonds’ claim on the merits. (Vol. 51, R. 83, at 26.) Accordingly, Hammonds properly raised this claim on the merits, so the Court will consider it when ruling on the merits of his overarching ineffectiveness claim.
m. Claim B(13)(a): Failure to present mitigating evidence and failure to prepare witnesses adequately
In his petition to this Court, Hammonds argues that his right to assistance of counsel was violated when his trial attorneys failed to present all available mitigating evidence and failed to prepare properly the mitigation witnesses that were presented. (Doc. # 6 at ¶ 85.) Specifically, Hammonds contends that trial counsel’s failure to prepare his mother, Annie Hammonds, and aunt, Lois George, before the penalty phase of trial resulted in both women being defensive and obstinate during cross-examination. Hammonds raised both of these arguments in his second amended Rule 32 petition. 5 (Vol. 43, R. 68, at 717-19.)
*1288 The State asserts that this claim is defaulted, arguing that Hammonds did not raise these grounds for relief in his Rule 32 petition. (Doc. # 68 at 13-14.) However, Hammonds sufficiently disclosed to the state courts his claim that his attorneys failed to present enough mitigation evidence and failed to prepare those witnesses that were presented. Therefore, this claim was properly raised below and the Court will analyze it on the merits during the cumulative analysis of trial counsel’s alleged ineffectiveness.
n. Claim B(13)(b): Failure to interview Hammonds’ family and friends about mitigating evidence
Hammonds claims that his trial counsel’s failure to interview witnesses willing to testify on his behalf during the penalty phase of trial amounted to ineffective assistance of counsel. (Doc. # 6 at ¶ 86.) The State again argues that the claim is defaulted because Hammonds’ Rule 32 motion does not mention it. And again the State is incorrect. Hammonds’ second amended Rule 32 motion says, “Had counsel contacted Mr. Hammonds’s family, friends, and other people who had interacted with Mr. Hammonds when he was growing up, and adequately investigated the lives of those they did contact, they could have presented an accurate portrait of Mr. Hammonds.” (Vol. 43, R. 68, at 731-32.) Hammonds, moreover, lists nine potential mitigation witnesses that counsel failed to interview. This included Cherita Hayes, the mother of one of his children. (Id. at 731.) The Court thus finds that Hammonds fairly presented this claim to the state courts in his Rule 32 petition, thereby precluding a finding of procedural default.
o. Claim B(13)(c): Failure to introduce mitigating evidence about Hammonds’ relationship with his children
To further support his claim that trial counsel were ineffective during the penalty phase, Hammonds points out that they failed to introduce mitigating evidence demonstrating that Hammonds had a loving relationship with his children, Artecia and Cordney. (Doc. # 6 at ¶ 87.) The State asserts that Hammonds failed to raise this claim in his Rule 32 motion and therefore defaulted on it. (Doc. # 68 at 14-15.) This time the State is correct. Although Hammonds pointed out a number of claimed deficiencies in counsel’s performance during the penalty face, his Rule 32 petition omits any mention of his relationship with his children.
Indeed, the section in Hammonds’ second amended Rule 32 petition devoted to trial counsel’s deficient presentation of mitigation evidence focuses on Hammonds’ past and his mental health history to explain his actions and “lessen[] Mr. Hammonds’s culpability for the crime.” (Vol. 43, R. 68, at 732-33.) The federal habeas petition presents a different argument, however, stating that presenting evidence about his relationship with his children would paint a more positive picture of Hammonds and “convey the immeasurable value of Mr. Hammonds’s life.” (Doc. # 6 at ¶ 86.) Kelley instructs a district court to ignore on the merits any “particular factual instances of ineffective assistance of counsel ... that were not first present *1289 ed to the state courts.” 377 F.3d at 1344 . Because Hammonds never presented to the state courts his argument that counsel provided deficient assistance by failing to put on evidence about his role as a loving father, this Court cannot now consider the claim.
p. Claim B(14)(a): Failure to investigate circumstances related to Hammonds’ alcoholic father
The next claimed instance of ineffective assistance involves trial counsel’s failure to investigate Hammonds’ traumatic upbringing and alcoholic father, and failing to present evidence about his upbringing to the penalty phase jury. (Doc. # 6 at ¶¶ 88-89.) Once again the State says Hammonds proeedurally defaulted on the claim by not presenting it in his Rule 32 petition. (Doc. # 68 at 15-16.) The Court finds the State’s argument without merit. Eight paragraphs spanning five pages of Hammonds’ Rule 32 petition are dedicated to this claim. The petition presented to the state courts explains how Hammonds’ father assaulted his mother, Hammonds, and his siblings until the day his father committed suicide. (Vol. 43, R. 68, at 722-26.) This suffices to meet the admittedly strict Kelley standard and, accordingly, the Court will consider the claim’s merits.
q. Claim B(14)(b): Failure to investigate how Hammonds overcame a traumatic childhood to become a loving father
Hammonds similarly argues that his trial counsel were ineffective for failing to present to the penalty phase jury evidence regarding “Mr. Hammonds’s ability to conquer his childhood demons as an adult so that he could be a committed — even though physically absent — father to his own children.” (Doc. #6 at ¶89.) And the State once again argues this claim is proeedurally defaulted because Hammonds never presented it to the state courts hearing his Rule 32 petition. (Doc. # 68 at 16-17.) This time the State is correct: Hammonds’ second amended Rule 32 petition makes no mention of his overcoming his childhood hardships to become a committed father. Nor does his petition assert that trial counsel provided ineffective assistance at the penalty stage for failing to investigate these facts. (Vol. 43, R. 68, at 721-26.) The Court is thus barred from hearing this claim on the merits.
r. Claim B(15): Cumulative effect of the above-mentioned failures
Paragraphs 90 through 92 of Hammonds’ habeas petition contend the state courts misapplied federal law by analyzing his ineffectiveness arguments claim-by-claim. To this end, Hammonds argues that the state courts should have applied the cumulative approach endorsed by Terry Williams v. Taylor, 529 U.S. 362, 398-99 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000). (Doc. # 6 at ¶ 33-34.) The section of Hammonds’ petition merely sets up his claim for relief on the merits; indeed, he cites the standard set forth in § 2254 and argues that he can meet it. Therefore, it is not a distinct claim for relief but rather a substantive argument. And because it is not a district claim, the State’s argument regarding procedural default is mooted.
2. The failure to provide a complete record for appeal (Claim G)
Moving away from his ineffective assistance claim, Hammonds claims the trial court violated his constitutional rights by failing to provide a complete appeal record. According to Hammonds, the record did not include juror questionnaires, which made reviewing his jury selection claims almost impossible. (Doc. # 6 at ¶¶ 110-15.) Hammonds made this argument to the Circuit Court of Houston County in his Rule 32 petition. But the circuit court found the claim proeedurally barred under Rules 32.2(a)(3) and (5) of the Alabama *1290 Rules of Criminal Procedure because Hammonds could have but did not raise the issue at trial or on direct appeal. (Vol. 40, R. 62, at 181.) The Alabama Court of Appeals agreed, finding that the circuit court properly dismissed the claim. (Vol. 51, R. 83, at 9.)
Hammonds correctly admits this claim is proeedurally defaulted. (Doc. # 47 at 82.) So he instead argues that the cause for the default is ineffective assistance of appellate counsel. (Doc. # 47 at 82.) More specifically, Hammonds claims that but for appellate counsel’s ineffective assistance, he would have argued on appeal that the incomplete record violated his constitutional rights.
Counsel’s failure “to recognize the factual or legal basis for a claim” or his failure to “raise the claim despite recognizing it” does not give rise to cause for a procedural default. See Murray v. Carrier, 477 U.S. 478, 486 , 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986). Rather, an attorney’s failure to raise a claim at trial or on direct appeal amounts to cause to excuse a procedural default “only if the error rises to the level of constitutionally deficient assistance of counsel under the Sixth Amendment.” Eagle v. Linahan, 279 F.3d 926, 937 (11th Cir.2001). So to overcome the procedural default by cause and prejudice, Hammonds must show that his appellate counsel rendered constitutionally deficient assistance by failing to argue that the incomplete appellate record violated his constitutional rights, and that he suffered prejudice as a result.
The record reveals that Hammonds argued, on direct appeal, that the trial court erred in eight ways — each of which were claims for relief. But none of those grounds related to jury selection in any way. 6 Because the jury questionnaires had no relevance to the grounds of relief raised on appeal, Hammonds did not suffer prejudice on direct appeal by way of his attorney’s error. Nor can Hammonds show cause: counsel’s failure to ensure that the appellate record contained the jury questionnaires does not fall below the objective reasonableness standard set forth in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Thus Hammonds cannot use his appellate counsel’s performance to overcome his procedural default. 7
3. Hammonds’ claim about the State’s violation of discovery orders (Claim H)
Hammonds’ next claim for relief centers on the trial court’s decision not to sanction the District Attorney for violating the court’s discovery orders. He claims *1291 this failure caused a violation of his rights to a fair trial, due process, and equal protection of law. Hammonds raised this claim in his Rule 32 motion in the context of judicial bias against him. (Vol. 42, R. 66, at 502-05.) The Alabama Court of Criminal Appeals found these claims procedurally barred by Rule 32.2(a)(5) of the Alabama Rules of Criminal Procedure. (Vol. 51, R. 83, at 9.) 8 Notably, Rule 32.2(5) bars the state courts from granting relief on any claim that could have been but was not raised on appeal. 9
Although neither party discusses cause and prejudice in the Joint Report (Doc. #47 at 83), Hammonds contends in his merits brief that he can overcome any procedural default by showing his appellate counsel assisted him ineffectively. (Doc. # 95 at 152.) More simply, Hammonds claims that, but for his appellate counsel’s ineffectiveness, he would have raised this claim on direct appeal. As a general rule, an attorney’s failure to raise a claim at trial or on direct appeal amounts to cause to excuse a procedural default “only if the error rises to the level of constitutionally deficient assistance of counsel under the Sixth Amendment.” Eagle, 279 F.3d at 937 . To show appellate counsel performed in a constitutionally deficient way, Hammonds must satisfy both of Strickland’s criteria — that is, he must show that counsel’s performance fell below an objective standard of reasonableness and that the deficient performance prejudiced him.
Hammonds’ brief makes no argument about why a failure to raise a particular claim on appeal satisfies Strickland . Indeed, “the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default.” Murray, 477 U.S. at 486 , 106 S.Ct. 2639 . Hence the Court cannot find that Hammonds established cause and prejudice sufficient to excuse his procedural default, which bars consideration of this claim on the merits. 10
4. Hammonds’ claim that the trial court failed to provide him with adequate funds to retain experts (Claim I)
Hammonds next argues that the trial court violated his rights by not pro *1292 viding adequate funds to hire DNA experts, a jury expert, or a mitigation expert. (Doc. #6 at ¶¶ 120-24.) According to Hammonds, denying him these funds violated his rights to due process, equal protection, a fair trial, and a reliable sentencing. (Id. at ¶ 124.) The State, on the other hand, contends that Hammonds never exhausted this claim because he never raised it at trial or on direct appeal or in the Rule 32 proceedings. (Doc. #47 at 85-87.) Hammonds responds to the State by noting that he raised the claim during the evidentiary hearing on his Rule 32 petition.
Only two passages of the relevant portions of the record deal with the alleged lack of funds to retain experts. The first is an exchange between Ms. McClary, Hammonds’ attorney for the Rule 32 proceedings, and Mr. Decker, Hammonds’ trial and appellate counsel. The transcript reveals the following:
McClary: ... why did you not employ a jury expert to help you and Ms. Nemish pick members of the jury from the venire?
Decker: We had no funds to do that.
McClary: Did you request funds to do that?
Decker: I don’t know if we specifically requested that. We requested the funds; I know the judge approved funds for Dr. Natalie Davis who helped us with the change of venue motion. And, we used the data that she had obtained through her survey that she conducted to help us develop a profile that we used to help strike the jury.
McClary: So, you are testifying Mrs. Davis helped you develop a profile or Mrs. Davis helped you figure out the likelihood of some of the jurors would be that you would be selecting from?
Decker: Some of both. Her information, report provided us with information that would help us find people that would be favorable to Mr. Hammonds. But, to answer the original question, did we hire a jury expert? No.
(Vol. 45, R. 70, at 128.)
Hammonds also points to the following exchange between Ms. Speagle, one of the State’s attorneys, and Ms. Nemish, one of Hammonds’ trial attorneys:
Speagle: Okay. Did you seek a psychiatric evaluation as well as psychological?
Nemish: No, we did not.
Speagle: Why not?
Nemish: Well, didn’t have any grounds to do that, so I didn’t.
Speagle: Was that based on what the psychologist had already told you?
Nemish: Correct.
The Court: Wait a minute. I am confused. I thought you didn’t seek a psychological evaluation as we commonly do in some eases because you had your own psychologist and he said it might be worse if you made such a request. Did I misunderstand? Am I misunderstanding?
Nemish: If I may—
The Court: Yes.
Nemish: We made application for funds for a psychologist and psychiatrist. You granted us funds for a psychologist at the time and held on the psychiatrist, pending grounds. When we got the psychologist, which is the one I am speaking about, we secured him to do this evaluation first to determine if we needed to do more. That is where we got his assessment and that also, I think, answers you question why we didn’t go to the psychiatrist, we had no grounds.
(R. 70 at 180-81.)
These stray references to a lack of funds do not fairly present the federal constitu *1293 tional claim to the state courts. The transcript reveals that no one brought up how the lack of funds may have prejudiced Hammonds’ defense or violated his constitutional rights. What is more, neither the state trial court nor the court of criminal appeals addressed the lack of expert funds in their respective Rule 32 orders. This strongly suggests that the state courts never had an opportunity to confront this question because Hammonds never presented it to them. Accordingly, the procedural default bars the Court from granting relief to Hammonds to the extent that he claims the lack of financing denied him the right to a fair trial.
5. Hammonds’ claim that the trial court improperly admitted prejudicial, nonprobative evidence (Claim L)
Hammonds’ habeas petition next claims that the State improperly introduced, and the trial court improperly admitted, highly prejudicial and nonprobative evidence used to inflame the jurors’ passions. (Doc. # 6 at ¶ 127.) Hammonds’ petition references his earlier claim about trial counsel’s ineffectiveness for failing to object to the admission of six pieces of evidence: (1) autopsy photographs of Marilyn Mitchell’s body; (2) evidence of Mitchell’s good character; (3) evidence that someone had stolen property from Mitchell’s condo; (4) an answering machine recording left by Mitchell’s mother; (5) evidence that Hammonds had seen a movie with a woman other than his wife; and (6) evidence that Hammonds liked to have sex with white women. (Doc. # 6 at ¶ 71.)
Hammonds raised this issue in his initial Rule 32 motion. (Vol. 40, R. 62, at 70.) The Houston County Circuit Court found that claim barred by Rule 32.2(a)(2) and (3) of the Alabama Rules of Criminal Procedure. (Vol. 40, R. 62, at 181.) The Alabama Court of Criminal Appeals affirmed this finding, holding that Hammonds defaulted on the claim because he did not raise it on appeal. (Vol. 51, R. 83, at 9.) The State agrees with the court of appeals, arguing that the procedural default bars this Court from granting relief.
Hammonds concedes that the claim is defaulted. But he argues that he can show cause and prejudice, and he relies once again on claiming that trial counsel provided ineffective assistance by failing to object to the evidence. Because ineffective assistance of counsel can provide cause for a default, see Murray v. Carrier, 477 U.S. 478, 488-89 , 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986), the Court will undertake the procedural default analysis for Claim L after analyzing Hammonds’ various ineffective assistance of counsel arguments on the merits.
6. Hammonds’ claim that the State improperly withheld exculpatory evidence (Claim M)
Hammonds’ next claim alleges that the State failed to turn over two important documents. The first is an agreement the State made with Gregory Gordon, one of its key witnesses. The second is a VICAP report used by the FBI to create a suspect profile. According to Hammonds, the State’s failure to disclose these documents violated Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963) (holding prosecution must turn over exculpatory evidence), thus depriving him of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights. (Doc. # 6 at ¶¶ 128-31.)
The Houston County Circuit Court found this claim procedurally barred by Rule 32.2(a)(5) of the Alabama Rules of Criminal Procedure since Hammonds could have raised the issue on direct appeal. (Vol. 43, R. 68, at 748.) The Alabama Court of Criminal Appeals concurred. (Vol. 51, R. 83, at 11.) The State urges this Court to adopt the state appel *1294 late court’s holding and find the claim procedurally defaulted and thus barred from consideration.
Hammonds does not dispute that this claim is procedurally defaulted. (See Doe. # 6 at ¶¶ 128-31.) Rather, Hammonds argues that he can show the necessary cause and prejudice to excuse the procedural default. (Doc. # 47 at 91-92.) To this end he claims that the State’s suppression of the evidence prevented him from presenting the argument on direct appeal. (Id.) And for support he cites to Banks v. Dretke, 540 U.S. 668 , 124 S.Ct. 1256 , 157 L.Ed.2d 1166 (2004), a case holding that the suppression of evidence can sometimes serve as cause to excuse a procedural default.
In Banks , the Supreme Court focused on fairness to the defendant. By enforcing procedural default rules where the state has suppressed evidence, courts would force defendants to raise Brady claims about evidence that they likely would not know exists. This would unfairly place the burden of discovering exculpatory evidence in the state’s possession on the shoulders of criminal defendants. Thus Banks says that “defendants [need not] scavenge for hints of undisclosed Brady material when the prosecution represents that all such material has been disclosed.” 540 U.S. at 695 , 124 S.Ct. 1256 .
But the logic of Banks does not apply here. As the Alabama Court of Criminal Appeals noted, Hammonds could have, but did not, raise his Brady claim on appeal. If Hammonds had yet to discover the existence of suppressed exculpatory evidence at the time of his appeal, then Banks would apply and'allow him to claim that the State’s suppression caused the procedural default. Hammonds, however, pointed out in his Rule 32 petition that he knew about both the Greg Gordon deal and the VICAP report before filing his appeal. (Vol. 42, R. 66, at 509-10.) In fact, trial counsel filed a formal request for the VI-CAP report on April 15, 1997 — well after the state should have disclosed it, but still before Hammonds’ trial began. (Id. at 509.) By the same token, the State dropped Gordon’s cocaine possession charges eleven days before Hammonds received his sentence, so Hammonds knew about the possibility that Gordon had received a deal from the State well before he filed his appeal.
Banks , moreover, deals with situations where the State’s suppression of evidence prevents a defendant from raising the claim at the first appropriate state proceeding. When the defendant does raise such a claim, the suppression can serve as cause for excusing the procedural bar. Here, the State’s alleged suppression did not prevent Hammonds from raising his claim on appeal. Consequently, Banks does not support his cause and prejudice argument. His Brady claim is therefore procedurally defaulted.
7. Hammonds’ claim that the trial court erred by failing to instruct the jury that his age at the time of the offense was a mitigating factor (Claim N)
In his petition, Hammonds claims the trial court erred by not instructing the jury that it had to consider his age at the time of the crime as a mitigating factor when determining his sentence. (Doc. # 6 at ¶¶ 132-34.) The State again argues for procedural default, noting how Hammonds never raised this claim at any state proceeding, whether directly or during collateral appeal. (Doc. # 47 at 93.) Hammonds does not disagree; instead, he argues that counsel’s ineffectiveness prevented him from raising this claim at trial or on appeal.
Even if the Court agreed with Hammonds about the ineffectiveness of trial and appellate counsel, he still failed to *1295 raise the claim during his Rule 32 proceedings. Because a criminal defendant generally has no right to an attorney after direct appeal proceedings, any attorney error during state habeas proceedings that leads to default in state court “cannot constitute cause to excuse the default in federal habeas.” Coleman v. Thompson, 501 U.S. 722, 757 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991); see also Mize v. Hall, 532 F.3d 1184, 1191 (11th Cir.2008) (“Because a petitioner has no right to counsel during state collateral review, even grossly ineffective assistance at the collateral review stage, or no assistance at all, does not constitute cause to excuse a procedural default.”). Hammonds raises no other grounds for his procedural default. Therefore, the Court finds that Hammonds has failed to show cause and prejudice on his claim that the trial court erred by failing to instruct the jury about the mitigating potential of his age. With the claim in procedural default, the Court cannot use it as the basis for granting Hammonds relief.
8. Hammonds’ claim that the jury considered extraneous evidence when rendering a verdict (Claim P)
Hammonds claims in his petition that the jurors considered outside evidence and ignored the judge’s instructions not to discuss the case with others or amongst themselves before deliberations began. (Doc. # 6 at 49-50.) Specifically, Hammonds claims that juror Andrea Chavez, while sequestered, used her cell phone to call her husband, and that the jurors discussed the case during breaks in the trial despite the trial judge’s instructions to the contrary. As to Chavez, the trial judge confronted her about the phone calls, but he never asked if the other jurors received improper information as a result of those calls.
The record reveals that Hammonds raised these arguments in some fashion in his Rule 32 petition. There he claimed that juror misconduct violated his right to a fair trial by an impartial jury. The Circuit Court of Houston County found that Hammonds had not demonstrated how the juror’s cell phone usage prejudiced him and noted how he could have raised the claim on direct appeal but did not do so. (Vol. 51, R. 82, at 748.) The Court of Criminal Appeals addressed the merits of this claim, too, but found that Hammonds had failed to put forth sufficient evidence to warrant relief. (Vol. 51, R. 83, at 11-12.) Because the last court to review Hammonds’ claim made a decision on the merits, this Court can do the same. Hammonds’ claim on this point is addressed below.
9. Hammonds’ claim that jurors’ failure to truthfully answer voir dire questions deprived him of his right to an impartial jury (Claim Q)
Hammonds claims that a number of jurors failed to answer voir dire questions honestly, thereby depriving him of his right to a fair trial with an impartial jury. (See Doc. # 6 at ¶¶ 145-49.) According to Hammonds, Juror Don Jones never disclosed that he knew several witnesses who were expected to testify. Similarly, jurors Jimmie Bryant and Vera Hayles allegedly concealed their knowledge about Hammonds’ incarceration for another, unrelated crime. And Bryant, along with Andrea Chavez, ostensibly failed to disclose that they knew or had a familial connection to members of the Do-than Police Department. The State concedes that Hammonds raised this claim in his Rule 32 motion and admits that the Alabama Court of Criminal Appeals addressed the claim on the merits. (Doc. # 47 at 98-104.) Still, the State contends that Hammonds did not properly raise the claim either during trial or on direct ap *1296 peal, meaning the claim is procedurally barred.
The cases the State cites hold that, if a state court refuses to adjudicate a claim on the merits because of a procedural default, then a federal court must respect that adequate and independent state ground for denying relief. Here, however, the state courts did not apply a procedural default rule. Cf. Johnson v. Singletary, 938 F.2d 1166, 1173 (11th Cir.1991) (en banc) (“Federal review of a petitioner’s claim is barred by the procedural default doctrine if the last state court to review the claim states clearly and expressly that its judgment rests on a procedural bar ... and that bar provides an adequate and independent state ground for denying relief.”). To the contrary, the Alabama Court of Criminal Appeals disposed of the claim on the merits, finding that Hammonds failed to present sufficient evidence to warrant relief. Accordingly, this Court can address the merits, too.
10. Hammonds’ claim that the trial judge erred by refusing to strike prospective juror James Adkinson for cause (Claim R)
During voir dire, prospective juror James Adkinson revealed that he had a close professional relationship with the victim’s father. Hammonds moved the trial court to strike Adkinson for cause, arguing that his relationship with the victim’s father amounted to a bias in favor of the State. The trial judge refused this request. Now, in his habeas petition, Hammonds claims that the trial court’s refusal violated his rights to due process, a fair trial, and a reliable sentencing. (Doc. # 6 at ¶¶ 150-51.) Hammonds raised this issue in his Rule 32 motion. (Vol. 40, R. 62, at 98, 105.) The Houston County Circuit Court found that this claim was procedurally barred, and the Alabama Court of Criminal Appeals upheld that determination. (Vol. 51, R. 83, at 11 (finding claim barred by Rule 32.2(a)(5)).) Hammonds does not dispute this. (Doc. # 47 at 105). Rather, he argues that the incompetence of both trial counsel and appellate counsel caused the procedural default. (Doc. # 47 at 105).
As discussed above, to demonstrate that counsel’s ineffective assistance caused a procedural default, a petitioner must demonstrate that counsel’s performance fell below an objective standard of reasonableness. Eagle, 279 F.3d at 937 . Yet Hammonds’ brief makes no argument as to why a failure to raise a particular claim on appeal satisfies the constitutional standard for ineffectiveness of counsel. As the Supreme Court has stated, “the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default.” Murray, 477 U.S. at 486 , 106 S.Ct. 2639 . Accordingly, this Court cannot find that Hammonds established cause and prejudice sufficient to excuse his procedural default and, thus, this claim will not be considered on the merits. 11
11. Hammonds’s claim that the trial court erred by not conducting individual voir dire (Claim S)
Hammonds’ petition claims that the trial court erred by not conducting individual voir dire regarding automatic imposition of *1297 the death penalty. (Doc. # 6 at ¶¶ 152-55.) He does not dispute that this claim is defaulted. (Doc. # 47 at 105.) Instead, he asserts that ineffective assistance of counsel led to the default because none of his lawyers raised this claim at trial or on appeal. (Doc. #47 at 105.) But again Hammonds’ argument regarding cause and prejudice is deficient. His merit brief does not set out why counsel’s failure to raise the trial court’s error- about individual voir dire falls below the objective standard of reasonable performance. As noted in discussing -the above claim, counsel’s mere failure to raise an issue does not, without more, suffice to establish cause to overcome a procedural default. Murray, 477 U.S. at 486 , 106 S.Ct. 2639 . Therefore, the Court finds that Hammonds failed to establish cause and prejudice sufficient to excuse his procedural default.
12. Hammonds’ claim that the trial court exhibited bias during trial (Claim T)
Hammonds also asserts that the trial court favored the prosecution throughout his trial. More specifically, Hammonds claims the trial court refused to declare a mistrial or impose sanctions, even in the face of rampant prosecutorial misconduct; made disparaging remarks about trial counsel; assumed a prosecutorial role during trial; refused to strike a nonresponsive brief filed by the State; and refused to remove jurors who engaged in misconduct. (Doc. # 6 at ¶¶ 156-64.) Once again the State argues that Hammonds procedurally defaulted (Doc. # 47 at 106-111), and Hammonds does not dispute the State’s contention.
Hammonds argues that he can show cause for his procedural default, however, by pointing to trial counsel’s supposed ineffectiveness. But once again Hammonds merely asserts that his lawyers provided deficient assistance by failing to raise these claims; he does not say why failing to raise these arguments amounted to a violation of his constitutional rights. And without showing why counsel’s failure to raise the argument meets the test set out in Strickland , Hammonds cannot overcome the procedural default. So once again the Court must find his claim procedurally defaulted and conclude that it cannot examine the claim on the merits.
13. Hammonds’ claim that the methods of execution Alabama uses constitute cruel and unusual punishment (Claim U)
Finally, Hammonds argues that Alabama’s method of executing prisoners using either electrocution or lethal injection amounts to cruel and unusual punishment. (Doc. # 6 at ¶¶ 57-59.) When the trial court sentenced Hammonds, Alabama executed inmates by electrocution. Since then the State has adopted lethal injection as its new method of execution, and it gave inmates already on death row 30 days in which to opt out of the new execution protocol. See McNair v. Allen, 515 F.3d 1168, 1171 (11th Cir.2008).
Hammonds, in his Rule 32 petition, argued that Alabama’s electrocution protocol violated the Constitution’s Cruel and Unusual Punishment Clause. The Alabama Court of Criminal Appeals found the claim in procedural defaulted under Rule 32.2(a)(5), noting that Hammonds could have but did not raise it on direct appeal. (Vol. 51, R. 83, at 11.) On this part of Claim U, Hammonds admits that a procedural default occurred, but he argues that counsel’s ineffectiveness caused it. Like with a number of the claims discussed above, Hammonds fails to set out the grounds for his cause and prejudice argument. And also like the above arguments, the Court must note that counsel’s failure to raise a claim will not alone suffice to establish cause. Murray, 477 U.S. at 486 , *1298 106 S.Ct. 2639 . Because Hammonds failed to support his claim that counsel’s ineffectiveness should excuse his procedural default, the Court cannot consider it now.
The State also contends that Hammonds’ claim about the constitutionality of its lethal injection protocol is procedurally defaulted, for he failed to raise it on direct appeal. (Doc. # 47 at 112.) Furthermore, the State asserts that the Rule 32 court and the Court of Criminal Appeals found the claim procedurally defaulted for the same reason. The Court disagrees, however, because the state courts only found Hammonds’ electrocution-related claims in procedural default.
Alabama changed its preferred method of execution from electrocution to lethal injection on July 1, 2002. So the change occurred after Hammonds filed his original Rule 32 petition (February of 2002), but before the evidentiary hearing on his petition (held on August 2, 2002). Moreover, the arguments Hammonds made as they relate to why electrocution amounts to cruel and unusual punishment were particular to that method — for example, the slow nature of death caused by electrocution and the potential for burning and excruciating pain — and do not apply to lethal injection. Therefore, the Court finds that Hammonds’ electrocution claims do not encompass his lethal injection claim. Along these same lines, the Court finds that because Hammonds did not raise his lethal injection claim at the state level it is not properly exhausted. 12
Typically, if a claim remains unexhausted at the state level, the federal habeas court may remand it back to the state courts for proper exhaustion.. But here such an endeavor would be futile. Under Alabama law, the state’s courts will not entertain a successive habeas petition unless the petitioner can show why the new grounds “could not have been ascertained through reasonable diligence when the first petition was heard.” Ala. R.Crim. P. 32.3(b). Hammonds cannot meet this standard as to his lethal injection claim: the evidentiary hearing on his Rule 32 petition, because it was held after the change in execution protocol, thus giving Hammonds ample opportunity to discover the basis for raising the issue through reasonable diligence. Because remanding the claim would amount to nothing more than an exercise in futility, the Court finds Hammonds’ lethal injection claim procedurally defaulted and thus barred from review.
14. Overcoming procedural default through the “miscarriage of justice” exception
“Federal courts are not forums in which to relitigate state trials.” Barefoot v. Estelle, 463 U.S. 880, 887 , 103 S.Ct. 3383 , 77 L.Ed.2d 1090 (1983). Staying true to this principle, the Supreme Court has held that a claim of actual innocence “is not itself a constitutional claim” for relief. Schlup v. Delo, 513 U.S. 298, 315 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995); Herrera v. Collins, 506 U.S. 390 , 113 S.Ct. 853 , 122 L.Ed.2d 203 (1993) (“actual innocence is not itself a constitutional claim”) (internal quotations omitted). But this is not to say that actual innocence has no role to play in habeas review. Quite to the contrary, a habeas petitioner’s actual innocence serves a vehicle for vindicating his constitutional claims after a procedural default. This allows a petitioner “otherwise subject” to procedural defenses to get a hearing in federal court so as to avoid a fundamental miscarriage of justice. Herr *1299 era, 506 U.S. at 404 , 113 S.Ct. 853 ; Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616 , 91 L.Ed.2d 364 (1986) (holding fundamental miscarriage of justice exception available “only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence”).
Avoiding a procedural bar to a federal court hearing a petitioner’s claim on the merits requires the petitioner to show that a “constitutional violation probably resulted in the conviction of one who is actually innocent.” Schlup, 513 U.S. at 327 , 115 S.Ct. 851 (quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986)). “To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence” tending to prove his innocence. Id. Hammonds has failed to come forward with any new evidence tending to show his innocence. His amended habeas petition merely recites that he maintains his factual innocence (Doc. # 6 at ¶ 104), as does his merits brief (Doc. # 95 at 218-19). Without new evidence tending to prove his actual innocence, Hammonds cannot dock his proeedurally defaulted claims in the safe harbor of the miscarriage of justice exception. As a result, the Court will not address the procedurally defaulted claims.
B. Dismissal for failure to state a claim for relief
The State has moved to dismiss a number of the allegations contained in Hammonds’ claim for ineffective assistance of counsel. According to the State, a number of these claims are conclusory and fail to state a basis for relief. (Doc. # 68 at 50-55.) 13 The Court disagrees. In fact, the State’s briefing on this point merely lists the claim’s label, a summary of the claim, and the paragraph of Hammonds’ petition in which the offending claim can be found. The State’s arguments do not explain what factual allegations Hammonds could have included, nor do they note whether the State had trouble coming up with responses to Hammonds’ allegations.
C. Abandonment of claims
The State, in a footnote in its merits brief, argues that Hammonds abandoned a number of claims by failing to address them in his own merits brief. (Doc. # 105 at 20 n. 14.) 14 But the State fails to cite any authority holding that a petitioner can default on a claim in this manner. In addition, the State relies largely on the assumption that Hammonds abandoned various pieces of his ineffective assistance claim by not addressing each and every one in detail. Hammonds disagrees with this of course, seeing how he views his ineffectiveness claim as a cohesive whole supported by individual instances of ineffectiveness. In fact, Hammonds discusses his overarching ineffectiveness claim throughout his brief, which suggests he had no intention of abandoning any of his subclaims. Because the State has not provided authority for dismissing the claims as abandoned, the Court will analyze each claim that survived the procedural default analysis.
D. Hammonds’ evidentiary hearing request
In the Joint Report, Hammonds requests an evidentiary hearing on a number *1300 of his claims. Specifically, he wants the Court to hear evidence on Claims B (including all subparts), C, D, E, I, L, M, P, Q, R, S, and U. (Doc. # 47.) As expected, the State denies that an evidentiary hearing should be held on any of Hammonds’ claims. This Court agrees with the State.
1. The legal standard
Under AEDPA, a district court generally cannot hold an evidentiary hearing if the petitioner “has failed to develop the factual basis of [his] claim in State court.” 28 U.S.C. § 2254 (e)(2). But this general rule has an exception. Indeed, a district court can hold an evidentiary hearing if the petitioner shows:
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
Id. § 2254(e)(2).
Applying this standard requires a two-step analysis. First, the Court must ask whether the petitioner developed the claim’s factual basis in state court. See, e.g., Michael Williams v. Taylor, 529 U.S. 420, 431 , 120 S.Ct. 1479 , 146 L.Ed.2d 435 (2000). If the petitioner did not develop the facts in state court, the Court must then determine whether this happened because of a “lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Id. at 432 , 120 S.Ct. 1479 . Diligence “depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court; it does not depend ... upon whether those efforts could have been successful.” Id. at 435 , 120 S.Ct. 1479 .
In addition, it should go without saying that a petitioner will not receive an evidentiary hearing on any claim the Court has found in procedural default and for which the petitioner cannot establish cause and prejudice. See, e.g., Hill v. Jones, 81 F.3d 1015, 1023 (11th Cir.1996) (“A state habeas petitioner is not entitled to an evidentiary hearing in federal court on the merits of a procedurally defaulted claim unless he can first overcome the procedural bar.”). Because Hammonds defaulted on Claims I, M, R, S, and U, Hill bars an evidentiary hearing and precludes the Court from even attempting the Michael Williams analysis. In the same vein, because the petitioner bears the burden of establishing his entitlement to an evidentiary hearing, see, e.g., Birt v. Montgomery, 725 F.2d 587, 591 (11th Cir.1984) (en banc); Chavez v. Sec’y Fla. Dep’t of Corrections, 647 F.3d 1057, 1060 (11th Cir. 2011), the Court will not entertain any request Hammonds failed to address in his merits brief. Here, he did not mention Claims C, E, L, and P, let alone argue that he is entitled to an evidentiary hearing on them. Accordingly, the Court finds that Hammonds has not met his burden for establishing entitlement to a hearing on those claims and his request for one is due to be denied.
2. Failure to develop the factual record at the Rule 32 proceeding
After applying the procedural default rules and addressing the burden of proof, only two of Hammonds’ requests for an evidentiary hearing survive: those of Claims B and Q. Hammonds admits that *1301 his counsel failed to develop the factual record underlying these claims at the Rule 32 proceeding. For example, Claim Q alleges that four different jurors answered untruthfully during voir dire. Yet Hammonds never called any of these jurors to testify about how their answers differed from the truth.
Even so, Hammonds asserts that the underdeveloped facts do not stem from a “lack of diligence, or some greater fault, attributable to” him or his lawyers. Michael Williams, 529 U.S. at 431, 120 S.Ct. 1479 . According to Hammonds, the record remained underdeveloped because he and his counsel could not prepare adequately for the Rule 32 hearing. (Doc. # 95 at 86.) To support this argument he points to three facts. First, he notes that he could not meet with his attorney before the proceeding because he could not get transportation to Houston County. (Id. at 174.) Second, he states that the Rule 32 court denied his repeated requests for a continuance. (Id.) Third, Hammonds says that the state court’s decision to deny his funding requests for experts and expanded discovery contributed to his inability to present the facts to the Rule 32 court. (Id. at 175.) Furthermore, Hammonds states that, although he eventually hired a second attorney, Tonya McClary, to represent him in his Rule 32 proceeding, the trial court did not grant her pro hac vice admission until just two and a half weeks before the hearing and only granted one continuance to allow her time to obtain admission. (Id.)
The Court agrees with Hammonds that he and his lawyers had to prepare for the Rule 32 hearing under less than ideal circumstances. His counsel felt inadequately prepared, the trial judge refused a continuance, and he did not get to have extended face-to-face meetings with his attorneys. But even so, Hammonds’ request for an evidentiary hearing is due to be denied for the reasons outlined below.
a. Ineffective assistance of counsel (Claim B)
Hammonds asserts that, because the record as to Claim B is incomplete, he should get the opportunity to present more evidence. During his Rule 32 proceeding, Hammonds presented testimony from his two trial attorneys and his appellate counsel. He even testified himself about what requests he had made of counsel. After this testimony, the Rule 32 court found that Hammonds failed to meet the standard set forth in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). (Vol. 51, R. 82, at 751.) The state court further indicated that, while Hammonds had requested time to pursue other leads, those leads related to his claim of innocence, not his claim of ineffective assistance. (Id.)
In his request for an evidentiary hearing, Hammonds does not proffer what new evidence, if any, he could present. It is the finding of this Court that Hammonds developed the record adequately as it relates to his ineffective assistance claim. And because the record is complete enough to rule on the merits of Hammonds’ claim, the Court need not hold an evidentiary hearing. See, e.g., Stephens v. Kemp, 846 F.2d 642, 650-51 (11th Cir. 1988) (“Because we are able to determine the merits of appellant’s ineffective assistance claims on the basis of the record already before the court, the district court did not err in denying a hearing for the taking of additional evidence in support of those claims.”).
Moreover, the Supreme Court’s recent decision in Cullen v. Pinholster, — U.S. -, 131 S.Ct. 1388 , 179 L.Ed.2d 557 (2011), limits the ability of federal habeas courts to hold evidentiary hearings. In that case, the Court held “that evidence *1302 introduced in federal court has no bearing on § 2254(d)(1) review.” 131 S.Ct. at 1400 . Here, Hammonds brings almost all of his claims under § 2254(d)(1), including his ineffective assistance claim. 15 As a result, Pinholster prohibits this Court from having an evidentiary hearing on Hammonds’ ineffective assistance claim, and the Court “is limited to the record that was before the state court that adjudicated the claim on the merits.” Id. at 1398 .
b. Juror responses during voir dire (Claim Q)
Hammonds claims that he did not have adequate time to prepare for the Rule 32 hearing as it related to various juror responses given during voir dire. (Doc. # 95 at 176.) The Alabama Court of Criminal Appeals disagreed, finding that Hammonds’ Rule 32 counsel had adequate time. That court stated, “Hammonds was represented by two attorneys during the Rule 32 proceedings. One was appointed March 1, 2002, and had five months to prepare for the August 2, 2002, hearing; the second entered her notice of appearance on May 20, 2002, and had over two months to prepare for the August 2, 2002, hearing.... This was more than adequate to prepare for a Rule 32 evidentiary hearing.” (Vol. 51, R. 83, at 7.) The state courts appear to have assumed that McClary could have prepared for the hearing while awaiting pro hac vice admission. This Court agrees.
The Court of Criminal Appeals also pointed out that Hammonds failed to call a single juror during the Rule 32 proceedings to substantiate his claims. (Id. at 12.) And he failed to present a single affidavit supporting his position. (Id.) Hammonds’ inability to obtain funds for experts or to obtain additional discovery did not prevent him from subpoenaing jurors to testify. He knew the identities of the jurors and he had adequate information regarding their allegedly inaccurate voir dire responses when he drafted his Rule 32 petition. Not much preparation would have been required to subpoena the allegedly offending jurors. Accordingly, it is the finding of this Court that the failure to develop the record adequately on this point is due to Hammonds’ lack of diligence. Therefore, Michael Williams does not require an evidentiary hearing, and the Court declines to have one.
In addition, because Hammonds bring this claim under § 2254(d)(1), the Court “is limited to the record that was before the state court that adjudicated the claim on the merits.” Pinholster, 131 S.Ct. at 1398 . In other words, like with Claim B, Pinholster prohibits this Court from having an evidentiary hearing on Claim Q.
E. The Merits
Twelve claims remain for merits review. The claims that survived the exhaustion requirement, the procedural default doctrine, a motion to dismiss, and the State’s abandonment arguments are: A, B, C, D, *1303 E, F, J, K, L, O, P, and Q. Each one presents a unique legal standard, so the Court will analyze each individually. For the sake of organization and clarity, the Court will also reiterate below which claims failed on procedural grounds.
1. Claim A: Prosecutorial misconduct denied Hammonds his constitutional rights
Doug Valeska, the District Attorney who prosecuted Hammonds, commented on both Hammonds’ right to remain silent and Hammonds’ incarceration for an unrelated offense. Both comments were decidedly improper. The question that concerns the Court, however, is whether the comments rendered the proceedings unconstitutionally unfair to Hammonds. Before delving into the legal issues, it is necessary to summarize the relevant facts.
The first improper comment by Valeska took place during the defense’s cross-examination of Greg Gordon, Hammonds’ coworker. While asking Gordon about fingerprints lifted from the victim’s telephone, the following exchange occurred:
Q: Let’s say there’s a phone next to the wall on the floor. You wouldn’t have thought anything at all about sitting down and picking up that phone and putting [it on a nightstand], would you?
A: No.
Q: Mr. Hammonds would have done the same thing, wouldn’t he? Valeska: Objection. He can’t testify— Court: Sustained.
Valeska: — what Mr. Hammonds would do. Let him testify.
(Vol. 25 at 219.) The trial court immediately held a hearing outside of the jury’s presence and determined that Valeska intended to refer to Hammonds when he said, “Let him testify.” 16 Although the trial court found Valeska’s statement improper, it still denied Hammonds’ motion for a mistrial, finding that a curative instruction would suffice. Issuing its curative instruction, the trial court stated:
Ladies and gentlemen of the jury, there was a statement made by the Prosecution, an objection by the Defense, which was sustained. The remark, and I’m not sure in which manner it was intended, but it basically said, “Let him testify.” It can be taken several ways, but such remarks are improper, and the jury should disregard that remark by Mr. Valeska. Statements of counsel as I told you are not any evidence in this case and should not be used by you or considered by you as evidence. Under the law the Defendant has the privilege to testify in his own behalf or not. He cannot be compelled to testify against himself, and that no presumption of guilt or innocence of any kind should be drawn from his failure to testify.
(Vol. 25 at 228.)
Valeska also made improper comments during closing arguments, stating, “[Hammonds] couldn’t keep his stories straight in prison.” This statement, like his reference to Hammonds remaining silent, violated one of the trial court’s orders, this one prohibiting Valeska from disclosing to the jury Hammonds’ incarceration for another, unrelated crime. After Valeska’s com *1304 ment, Hammonds again moved for a mistrial, which the trial court denied. Instead, the court gave the following curative instruction:
Ladies and gentlemen of the jury, I told you before and I will tell you again; you know what the lawyers say to you is not evidence. It is not to be considered by you as evidence. What they tell you and what they are doing is arguing their case to you. They are submitting what they believe the evidence to be. They are attempting to draw certain inferences; what they say is just to assist you. But, it is not to be considered by you as any evidence in this case. And, the only evidence that you are to consider would be the evidence that comes from this witness stand or any exhibits that were introduced and admitted into evidence. So, just keep that in mind, what the attorneys tell you is not evidence.
(Vol. 34 at 859.)
On direct appeal, Hammonds argued that the trial court’s curative instructions did not suffice to remedy Valeska’s improper statements. The Alabama Court of Criminal Appeals disagreed and affirmed the trial court’s decision to deny a mistrial. Hammonds, 777 So.2d at 763-67 . The Alabama Supreme Court, in a divided opinion, agreed “that the trial judge corrected any harm by giving appropriate corrective instructions.” Ex parte Hammonds, 777 So.2d at 778 . Even so, the state supreme court warned that “[tjhis case presents a classic example ... of prosecutorial conduct that could, in certain circumstances, cause us to overturn a conviction.” Id.
Well-established constitutional law makes clear that a prosecutor acts improperly by commenting during trial on a criminal defendant’s constitutional right to remain silent. Griffin v. California, 380 U.S. 609, 615 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965). A comment refers to a defendant’s silence if it was manifestly intended as a remark on the defendant’s failure to testify or if the statement would lead the jury naturally and necessarily to take the remark that way. United States v. Thompson, 422 F.3d 1285, 1299 (11th Cir. 2005). A court tasked with deciding a claim of allegedly improper prosecutorial comments must ask a single question: did the comments, in light of the entire judicial proceeding, render the trial fundamentally unfair? See Brooks v. Kemp, 762 F.2d 1383, 1400 (11th Cir.1985) (en banc), vacated on other grounds, 478 U.S. 1016 , 106 S.Ct. 3325 , 92 L.Ed.2d 732 (1986), reinstated, 809 F.2d 700 (1987) (en banc) (citing Donnelly v. DeChristoforo, 416 U.S. 637 , 94 S.Ct. 1868 , 40 L.Ed.2d 431 (1974)). A judge’s curative instruction can remedy the effects of any improper comment and prevent the need for a new trial. Id. In fact, the Eleventh Circuit views curative instructions as presumptively effective. See United States v. Stone, 9 F.3d 934, 938 (11th Cir.1993) (“Few tenets are more fundamental to our jury trial system than the presumption that juries obey the court’s instructions.”).
The Alabama Court of Criminal Appeals undertook the fundamental fairness analysis. Hammonds, 777 So.2d at 765, 767 (“Because of the trial judge’s complete and timely instruction, the error created by the prosecutor’s improper remark was vitiated so as to render the error harmless.... The prompt and thorough action by the trial judge in issuing a curative instruction to the jury as soon as the argument was made created a presumption against error.”). The Alabama Supreme Court upheld the state appellate court’s application of the test, albeit without much analysis of the issue. Hammonds thus bears the burden of showing that the state courts’ decisions were “con *1305 trary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254 (d). In other words, this Court will look at the state courts’ decisions with a deferential eye, asking only if the state courts ignored or unreasonably applied canonical federal law or engaged in unreasonable fact finding in light of the evidence presented at trial.
Against this backdrop, Hammonds argues that the state courts unreasonably applied three Supreme Court cases — Grif fin v. California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965); Doyle v. Ohio, 426 U.S. 610 , 96 S.Ct. 2240 , 49 L.Ed.2d 91 (1976); and Estelle v. Williams, 425 U.S. 501 , 96 S.Ct. 1691 , 48 L.Ed.2d 126 (1976) — to decide that Valeska’s statements did not render his trial fundamentally unfair. The Court disagrees. None of the three decisions cited by Hammonds dealt with the effect of a judge’s curative instruction on a prosecutor’s improper comments. In fact, the trial judge in Griffin did the exact opposite of offering a curative instruction: he explicitly told the jurors they could use the defendant’s silence to infer his guilt. 380 U.S. at 610, 85 S.Ct. 1229 . Similarly, in Doyle , the trial court erred by allowing the prosecutor to argue to the jury that the defendants’ silence gave rise to an inference of guilt. 426 U.S. at 613-15 , 96 S.Ct. 2240 .
Here, the trial judge by no means offered a perfect curative instruction. Instead of telling the jury that they could not use Hammonds’ silence to infer his guilt, he instructed jurors that they should draw neither an inference of guilt nor innocence from his silence. This is arguably incorrect because the jury was required to presume Hammonds’ innocence until the point in time when the State had proven his guilt beyond a reasonable doubt. But other than this semantic flaw, Judge Anderson’s instruction conveyed to the jury that they had to disregard Valeska’s statement, that the statement was not evidence, and that Hammonds had a right not to testify. This brings Hammonds’ claims far enough outside the purview of Griffin and Doyle that this Court cannot say that the trial court acted contrary to, or engaged in an unreasonable application of, clearly established federal law.
In Estelle, the Supreme Court held that a state could not compel an accused to stand trial before a jury while dressed in identifiable prison clothes. 425 U.S. at 503-05 , 96 S.Ct. 1691 . From here, a general rule has emerged, holding that references to a criminal defendant’s incarcerated status may impermissibly compromise the defendant’s presumption of innocence. See, e.g., United States v. Villabona-Garnica, 63 F.3d 1051, 1058 (11th Cir.1995) (citing Estelle, 425 U.S. at 503-05 , 96 S.Ct. 1691 ). But Hammonds’ case falls well outside of the reach of Estelle and its progeny. Indeed, Valeska made his comment about Hammonds’ inability to “keep his story straight in prison” in passing. Cf. United States v. Blasingame, 219 Fed.Appx. 934, 946-47 (11th Cir.2007) (relying partly on brevity of improper comments in denying habeas relief). Hence, unlike in Estelle, where the state forced the defendant to wear prison garb, there was not a constant reminder — or even a repeat reference — to Hammonds’ incarcerated status. Valeska’s comments also did not refer to the reason for Hammonds’ incarceration. And the trial court issued a curative instruction like it did with Valeska’s improper comment about Hammonds’ silence. These differences arguably make Estelle inapplicable.
*1306 Furthermore, several Eleventh Circuit decisions make clear that a curative instruction can render harmless an improper comment. See, e.g., Hill v. Turpin, 135 F.3d 1411, 1417 (11th Cir.1998) (cataloging the instances in which the court has held a prosecutor’s comment on silence harmless, including when “the improper reference was ‘isolated’ or ‘unintentional’ or promptly addressed by a curative instruction from the trial court”); United States v. Williams, 341 Fed.Appx. 599, 601-02 (11th Cir.2009) (“Assuming arguendo that the prosecutor’s statements were improper, the error was rendered harmless by the court’s curative instructions, and, in light of the instructions, there is nothing to suggests the jury improperly relied on the prosecutor’s remarks.”) Hammonds failed to present a single case showing that the state’s findings about the sufficiency of the trial judge’s curative instructions were constitutionally infirm. Rather, Hammonds restated basic principles about how a prosecutor must refrain from commenting on the defendant’s silence and how such comments will sometimes amount to reversible error. This does do not suffice. Therefore, this Court cannot say that the various state courts reviewing Hammonds’ prosecutorial misconduct claim acted contrary to, or engaged in an unreasonable application of, clearly established federal law. Because Hammonds has not carried his burden, the Court must deny Hammonds’ request for habeas relief as to Claim A.
2: Claim B: Ineffective assistance of trial and appellate counsel denied Hammonds’ his Sixth Amendment rights
As a threshold matter, the parties disagree about how the Court should analyze Hammonds’ ineffective assistance of counsel claims. On the one hand, the State wants the various individual allegations of ineffective assistance chopped up and analyzed separately. On the other hand, Hammonds wants the Court to analyze the allegations of his lawyers’ deficient performance by grouping them by the phase of the trial and appeals process, and he wants the Court to address the alleged conflicts of interest of his counsel separately-
The Court finds Hammonds’ arguments on this point persuasive. Supreme Court precedent suggests a federal district court analyzing an ineffective assistance of counsel claim should look at the individual allegations of ineffective assistance and their cumulative effect. See Terry Williams v. Taylor, 529 U.S. 362, 398 , 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (holding state supreme court’s decision “was unreasonable insofar as it failed to evaluate the totality of the available mitigation evidence — -both that adduced at trial, and the evidence adduced in the habeas proceeding”); Strickland v. Washington, 466 U.S. 668, 690 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984) (concluding federal court must address ineffective assistance claim “in light of all the circumstances”). So the Court will proceed by first analyzing Hammonds’ claims of ineffective assistance at the guilt/innocence phase of his trial followed by his claims related to the penalty phase. After that the Court will address the allegedly deficient performance of Hammonds’ appellate counsel. Finally, the Court will look at his claim that conflicts of interest rendered trial counsel’s performance ineffective.
In analyzing these claims, the Court will apply the two-part test set forth in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Under Strickland , a petitioner claiming ineffective assistance must show that counsel’s performance fell below an objective standard of reasonableness, and that this breach prejudiced the defense. 466 U.S. at 687-88 , 104 S.Ct. 2052 ; see also *1307 Wiggins v. Smith, 539 U.S. 510, 521 , 123 S.Ct. 2527 , 156 L.Ed.2d 471 (2003). The first prong of Strickland’s performance- and-prejudice test measures objective reasonableness by the “wide range of reasonable professional assistance.” Strickland, 466 U.S. at 690 , 104 S.Ct. 2052 . The second prong requires the petitioner to prove prejudice by showing “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Wiggins, 539 U.S. at 534 , 123 S.Ct. 2527 (quoting Strickland, 466 U.S. at 694 , 104 S.Ct. 2052 ). A reasonable probability of prejudice “is a probability sufficient to undermine confidence in the outcome.” Id.
Strickland , moreover, noted that “the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation ... [but] simply to ensure that criminal defendants receive a fair trial.” 466 U.S. at 689 , 104 S.Ct. 2052 . Therefore, federal courts have to resist indulging the “tempt[ation] for a defendant to second-guess counsel’s assistance after conviction or adverse sentence,” by presuming that counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690 , 104 S.Ct. 2052 . It is only when “counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result,” id. at 686 , 104 S.Ct. 2052 , that courts should grant an ineffective assistance claim.
a. Ineffective assistance of trial counsel during the guilt/innocence phase
Hammonds first cites his trial attorneys’ failure to follow a number of leads as the basis for an ineffective assistance claim. According to Hammonds, his trial lawyers failed to follow “several leads that could have uncovered the actual perpetrator(s) of the crime.” (Doc. # 6 at ¶¶ 40-44.) Among these leads was a tip that a death row inmate in California had bragged about killing Ms. Mitchell; a statement in the Dothan Police Department’s report identifying another possible suspect; and a number of witnesses who reportedly last saw the victim alive with an unidentified white male. (Id. at ¶¶ 41-^13.) Hammonds argues that a reasonable attorney would have investigated and developed these leads to a greater degree than his did attorneys, Charles Decker and Kathleen Nemish, and that he suffered prejudice as a result.
Hammonds’ defaulted on his claim about his attorneys failing to investigate a lead from a statement contained in the police report. This leaves Hammonds with two arguments. The first relates to a California death row inmate who supposedly took credit for killing Mitchell. The second is more general, focusing on Decker and Nemish’s failure to investigate leads from witnesses who said they last saw Mitchell alive with an unidentified white male.
The Court finds these arguments without merit. Under Strickland , defense counsel only has to provide reasonably effective assistance. It does not require a criminal defense lawyer to exhaust every lead, no matter how implausible or unlikely to bear fruit. See, e.g., Chandler v. United States, 218 F.3d 1305, 1319 (11th Cir.2000) (“Counsel is not required to present every nonfrivolous defense”). This rule recognizes there is an opportunity cost to the decisions a defense lawyer makes: the time and money spent pursuing a speculative lead means diminishing the scarce resources available to defense counsel and forgoing better ways to develop the case. Hence Strickland recognizes that defense lawyers stand in the best position to make these types of *1308 tradeoffs, and the Supreme Court provided them ample leeway to do so. Indeed, only when a defense lawyer commits errors “so serious as to deprive [a] defendant of a fan-trial, a trial whose result is reliable,” does he open his decisions up to second-guessing by a court. Strickland, 466 U.S. at 687 , 104 S.Ct. 2052 .
Here, the police found at the crime scene Hammonds’ sperm on a paper tissue, his spermatozoa on the victim, and his blood on the victim’s bedroom door and baseboard. This discovery led the State to base its case on DNA evidence. And knowing that the prosecution would do so, defense counsel made a rational decision not to pursue a farfetched alibi about a California inmate killing Mitchell, focusing instead on undermining the State’s DNA evidence more directly. This is by no means an unreasonable decision. 17 See, e.g., Bell v. Cone, 535 U.S. 685, 702 , 122 S.Ct. 1843 , 152 L.Ed.2d 914 (2002) (stating “tactical decision about which competent lawyers might disagree” does not qualify as objectively unreasonable); Brownlee v. Haley, 306 F.3d 1043, 1061 (11th Cir.2002) (“The attorneys’ decision not to pursue Brownlee’s alibi defense after deeming it implausible and unlikely to succeed is precisely the kind of strategic decision on which a court should defer to the judgment of counsel.”); Lashley v. Armontrout, 957 F.2d 1495 (8th Cir.1992) (“A defense attorney is not ineffective for not presenting an implausible theory of defense or mitigation.”), rev’d on other grounds, 507 U.S. 272 , 113 S.Ct. 1222 , 122 L.Ed.2d 620 (1993). So too with Nemish and Decker’s failure to look into the unidentified white male that a number of witnesses say accompanied Mitchell shortly before her death. Given the DNA evidence found at the scene that linked Hammonds to the murder, along with Valerie Rivers’ testimony that she saw Hammonds with a ring that matched the one taken from the victim, Nemish and Decker acted reasonably when they declined to pursue the lead.
Next, Hammonds argues that trial counsel failed to identify and investigate witnesses that would have given him an alibi. (Doc. # 6 at ¶¶ 51-59.) More specifically, Hammonds contends that trial counsel should have interviewed Charles King, David Preston, Tim Pridgen, Greg Gordon, Daryl White, Valerie Rivers, 18 and Jack Tate. Hammonds testified at his Rule 32 hearing that each one would have produced evidence that either undermined the State’s theory of the case or would have established his alibi. After the hearing, the trial court rejected Hammonds’ arguments, noting that Decker and Nemish represented Hammonds admirably under the circumstances and that Hammonds failed to introduce evidence proving otherwise. (Vol. 51, R. 82, at 6-8.)
After reviewing the record, this Court cannot say that defense counsel acted unreasonably by failing to interview the witnesses that Hammonds claims would have provided him with an alibi. Hammonds himself admits that trial counsel focused on undermining the DNA evidence. And this was a reasonable decision: the State had overwhelming evidence that not only established Hammonds’ presence at the crime scene but also his guilt. Thus it made sense for trial counsel to train their focus on undermining the accuracy and reliability of that evidence instead of investigating what would have been a weak alibi *1309 defense. Cf. Chandler, 218 F.3d at 1319 (“Good advocacy requires ‘winnowing out’ some arguments, witnesses, evidence, and so on, to stress others.”); Brownlee, 306 F.3d at 1061 (“The attorneys’ decision not to pursue Brownlee’s alibi defense after deeming it implausible and unlikely to succeed is precisely the kind of strategic decision on which a court should defer to the judgment of counsel.”).
Moreover, courts generally view ineffective assistance claims with great caution when the only evidence of a missing witness’s testimony comes from the defendant. See, e.g., Schwander v. Black-burn, 750 F.2d 494, 500 (5th Cir.1985). Hammonds produced not a shred of evidence showing that he would have succeeded on his alibi defense or that the witnesses would have testified in the manner in which he claims. (See R. 83 at 24 (“Hammonds did not call any of these wit nesses to testify at the evidentiary hearing or otherwise present any evidence indicating what they would have testified to had they been called to testify at Hammonds’s trial.”).) For example, Nemish testified during the Rule 32 hearing that she attempted to find the time cards that would have given Hammonds a plausible alibi, but her investigation revealed the cards had been destroyed. (Vol. 51, R. 83, at 19.) Hammonds failed to introduce the time cards at the hearing, which, if he had, would have suggested Nemish unreasonably failed to locate them. Nor did he call a witness to testify about when the time cards were destroyed so as to show that a reasonably timely investigation would have led to their discovery. Similarly, although Hammonds testified at the hearing that King and Preston would have verified his alibi, he called neither one to testify, nor did he have them submit an affidavit about what they would have testified to if called during his trial. (Id. at 19-20.) Accordingly, Hammonds has not met his burden of showing that his trial counsel’s failure to investigate and call witnesses “rendered his trial fundamentally unfair.” Coon v. United States, 441 F.2d 279 (5th Cir.1971), cert. denied, 404 U.S. 860 , 92 S.Ct. 160 , 30 L.Ed.2d 103 (1971).
Hammonds’ next arguments rely on more general accusations: he contends that Nemish and Decker failed to formulate a sound defense strategy to rebut the State’s case, and that they made numerous strategic errors before and during trial. (Doc. # 6 at ¶¶ 60-69.) 19 Hammonds focuses on how Decker and Nemish put on substantially less evidence than did the State. He also takes issue with what witnesses trial counsel did and did not call to testify. Along these same lines, Hammonds claims that trial counsel erred by failing to seek independent testing of the physical evidence linking Hammonds to the crime. (Id. at ¶ 70.) After the Rule 32 hearing, the trial court rejected these claims, finding that defense counsel undertook extensive work as it related to the DNA tests that eventually proved Hammonds’ guilt. (Vol. 51, R. 82, at 5-6.)
This Court sees no reason to hold that these findings were contrary to, or an unreasonable application of, federal law. Hammonds provided no evidence contradicting the evidence relied upon by the state court. He also failed to provide Supreme Court precedent directly on point, and he declined to argue in his merits brief that the state courts unreasonably applied Strickland’s general rules as it relates to his claims.
More importantly, defense counsel consulted a number of experts about the State’s DNA testing procedures. *1310 Decker, for example, testified that he consulted with two DNA experts — one from a Maryland testing laboratory, the other a retired FBI agent. (Vol. 51, R. 83, at 19.) The experts told them that the State properly tested the material found at the scene; that the State obtained the correct results; and that retesting the material would only confirm the State’s results. (Id.) As a result, Decker and Nemish smartly refrained from having those experts submit written reports of their findings, which would have been discoverable by the State, and relied instead on non-discoverable verbal reports. Furthermore, defense counsel has no duty to present the same volume of evidence as the prosecution. That Hammonds’ lawyers had little favorable evidence to work with hardly makes their efforts unsatisfactory. Indeed, the overwhelming evidence of his guilt prejudiced Hammonds, not his attorneys’ performance. 20
Hammonds, in his next group of arguments, asserts that trial counsel rendered ineffective assistance by failing to object to prejudicial, non-probative evidence introduced by the State. (Doc. # 6 at ¶¶ 71-72.) The disputed evidence includes autopsy and crime scene photos, testimony about the victim’s good character, evidence about allegedly stolen property, a recording left by the victim’s mother on the victim’s answering machine, 21 and testimony suggesting that Hammonds committed adultery. After the Rule 32 hearing, the state trial court rejected these claims. (Vol. 51, R. 82, at 750-51.) Once again, this Court sees no reason to upset that ruling. Hammonds did not submit evidence contradicting the evidence relied upon by the state court. Nor did he provide this Court with applicable Supreme Court precedent. And he again declined to argue in his merits brief that the state courts unreasonably applied Strickland’s general rules as they relates to these claims. Hammonds consequently cannot carry his burden to show the state courts acted contrary to, or unreasonably applied, federal law in denying his claim based on trial counsel’s failure to object to certain pieces of evidence.
Hammonds also argues that trial counsel failed to ensure that he had a fair and impartial jury. (Doc. # 6 at ¶¶ 77-78.) To this end, he states that at least two jurors slept during his trial. (Id. at ¶ 78; Doc. # 95 at 92-93.) Further, he asserts that trial counsel rendered ineffective assistance by failing to question each juror individually, have the jury polled about one juror’s cell phone usage, determine which prospective juror spoke with the victim’s mother, and ensure that the juror ques *1311 tionnaires were included in the appeal record. (Doc. # 6 at ¶ 78.) The state circuit court disagreed, noting that neither Decker nor Nemish said they saw a juror sleeping. (Vol. 51, R. 82, at 6.) Judge Anderson noted that he did not see a sleeping juror either. (Id.) The court of criminal appeals addressed the remaining claims and, like the circuit court, rejected them. (Vol. 51, R. 83, at 21-22.)
The state courts did not act contrary to or unreasonably apply Supreme Court precedent in reaching these decisions. Generally speaking, a sleeping juror does not violate a defendant’s due process rights absent a showing of prejudice and that he did not receive a fair trial. See, e.g., United States v. Fernandez-Hernandez, 652 F.3d 56 , 75 (1st Cir.2011); United States v. Freitag, 230 F.3d 1019, 1023 (7th Cir.2000); United States v. Springfield, 829 F.2d 860, 864 (9th Cir. 1987). Here, there is little evidence that jurors actually slept during the trial and, significantly, Hammonds failed to call ei ther allegedly drowsy juror during the Rule 32 hearing. And even assuming that two jurors slept at some point during Hammonds’ trial, there is no evidence that they did so during a part of the trial that presented testimony favorable to Hammonds. In fact, the overwhelming evidence of Hammonds’ guilt makes it is far more likely that sleeping jurors prejudiced the prosecution and helped Hammonds. For example, if jurors slept while the State presented testimony about how Hammonds’ DNA matched the DNA found at the scene, Hammonds arguably would have benefited. More importantly, the highly persuasive nature of the DNA evidence makes it unlikely that but for the sleeping jurors, the trial’s outcome would have changed. Along these same lines, Hammonds produced no evidence to support his arguments about the jury’s alleged lack of impartiality.
Finally, Hammonds argues that trial counsel failed to render effective assistance by declining to pursue meritorious motions. (Doc. #6 at ¶¶ 82-83.) Specifically, Hammonds contends that trial counsel abandoned motions seeking “the appointment of additional counsel, extraordinary expenses for psychiatric assistance, permission to view the crime scene with Mr. Hammonds, and an order prohibiting the prosecutor from referring to Hammonds by anything other than his given name.” (Id. at 82.) The Alabama Court of Criminal Appeals found this argument meritless because Hammonds failed to produce evidence to support his claim. (Vol. 51, R. 83, at 28-29.) This Court agrees. Hammonds provided no case law or argument on this issue in his merits brief. Nor does his habeas petition cite to a Supreme Court case on point. Therefore, the state court’s decision to deny relief was by no means contrary to, or an unreasonable application of, Supreme Court precedent.
b. Ineffective assistance of trial counsel claims related to the penalty phase
Hammonds contends that trial counsel failed to investigate Hammonds’ juvenile record and pursue youthful offender status. 22 (Doc. # 6 at ¶¶ 45-47.) According to Hammonds, tri

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8697099. Public record. Not legal advice.