Petition for Writ of Certiorari — Phillip Wayne Tomlin, Petitioner v. Tony Patterson, Warden
Supreme Court briefDec 27, 2019
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No. 19-_______
IN THE SUPREME COURT OF THE UNITED STATES
October Term 2019
PHILLIP WAYNE TOMLIN,
Petitioner,
v.
TONY PATTERSON, WARDEN, HOLMAN CORRECTIONAL
FACILITY,
Respondent.
On Petition for Writ of Certiorari to the United States Court of
Appeals for the Eleventh Circuit
APPENDIX
December 27, 2019
BERNARD E. HARCOURT
Counsel of Record
COLUMBIA LAW SCHOOL
435 West 116th Street
New York, New York 10027
(212) 854-1997
beh2139@columbia.edu
APPENDIX INDEX
Tomlin v. Patterson
APPENDIX A:
Opinion of the United States District Court for the Southern
District of Alabama denying federal habeas corpus, Tomlin v.
Patterson, No. 10-120-CG-C (S.D. Ala. Apr. 19, 2018) .................... 1
APPENDIX B:
Order of the United States District Court for the Southern
District of Alabama denying reconsideration, Tomlin v.
Patterson, No. 10-120-CG-B (S.D. Ala. Feb. 04, 2019) .................. 47
APPENDIX C:
Order of the United States District Court for the Southern
District of Alabama denying COA, Tomlin v. Patterson, No. 10120-CG-B, (S.D. Ala. March 08, 2019)............................................ 52
APPENDIX D:
Order of the United States Court of Appeals for the Eleventh
Circuit denying COA, Tomlin v. Patterson, No. 19-10494, 2019
Us App Lexis 13845 (11th Cir. May 08, 2019) ............................... 56
APPENDIX E:
Petitioner’s Motion for Reconsideration of the Denial of a
Certificate of Appealability, Tomlin v. Patterson, No. 19-10494,
filed June 17, 2019) .......................................................................... 58
APPENDIX F:
Order of the United States Court of Appeals for the Eleventh
Circuit denying reconsideration of COA, Tomlin v. Patterson, No.
19-10494, (11th Cir. July 30, 2019) .............................................. 116
APPENDIX G:
Petitioner’s Supplemental Authority to the United States Court
of Appeals for the Eleventh Circuit, Tomlin v. Patterson, No. 1910494, filed on Aug. 16, 2019 ........................................................ 118
APPENDIX H:
Clerk of the United States Court of Appeals for the Eleventh
Circuit’s letter notifying of unfiled Supplemental Authority,
Tomlin v. Patterson, No. 19-10494, (11th Cir. Aug. 22, 2019) .... 121
APPENDIX I:
Order of the United States Court of Appeals for the Eleventh
Circuit granting COA, Tomlin v. Patterson, No. 13-13878 (11th
Cir. June 02, 2014) ......................................................................... 123
APPENDIX J:
1975 Alabama Death Penalty Act, Ala. Code. §§ 13-11-1 et seq. 144
APPENDIX K:
“Certificates of Appealability in Habeas Cases in the United
States Court of Appeals for the Eleventh Circuit: A Study,” by
Julia Udell, Columbia University ................................................. 150
APPENDIX L:
“Table of Local Rules for Certificates of Appealability by Circuit,”
by Naomi Bates and Ashwini Velchamy, Columbia Law School.162
Appendix A
1
Case 1:10-cv-00120-CG-B Document 53 Filed 04/19/18 Page 1 of 45
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
PHILLIP WAYNE TOMLIN,
Petitioner,
vs.
TONY PATTERSON, Warden,
Holman Correctional Facility,
Respondent.
)
)
)
)
)
) CIVIL ACTION NO. 10-120-CG-C
)
)
)
)
)
ORDER
This case is before the Court on Petitioner Phillip Wayne Tomlin’s
(“Petitioner”) first habeas corpus petition, in which he raises thirty claims
challenging his conviction and sentence for the murder of two people on January 2,
1977. (Doc. 1). This Court previously denied Petitioner habeas relief (Doc. 32), but
in doing so it failed to take into account his motion to supplement claim number 30
in light of Magwood v. Warden, Ala. Dept. of Corrections, 664 F.3d 1340 (2011).
(Doc. 22). Petitioner appealed, and the Eleventh Circuit Court of Appeals vacated
this Court’s order without prejudice to resolve the issues Petitioner raised in Claim
30. (Doc. 40). The Court of Appeals specifically directs this Court “to (1) determine
whether the ex post facto issues raised in Tomlin’s § 2254 reply brief were properly
before the judge; (2) if so, decide those issues; (3) issue a decision on Tomlin’s motion
to supplement his § 2254 petition; and (4) if the judge grants that motion, decide the
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ex post facto and due process, fair warning claims raised in Tomlin’s proposed
supplement.” (Doc. 40, pp. 5–6).
Upon due consideration, the Court granted Petitioner’s Motion for
Supplemental Pleading in regard to the above issues. (Doc. 43, 45). Petitioner filed
his supplemental brief (Doc. 46), Respondent answered (Doc. 47), and Petitioner
replied (Doc. 48). All three documents are presently before the Court and ripe for
consideration. For the reasons set forth below, Petitioner’s habeas corpus petition is
denied as to his ex post facto and due process, fair-warning claim, and the petition
is denied in all other aspects.
I.
BACKGROUND
On January 2, 1977, the Mobile County police found the bodies of Richard
Brune and Cheryl Moore along an Interstate 10 exit ramp in Mobile County,
Alabama. Both victims suffered multiple gunshot wounds and died as a result.
Police later arrested John Daniels and Tomlin for the murders of Brune and Moore.1
Tomlin was subsequently tried, convicted, and resentenced to death for the
1977 murders of Brune and Moore through four separate trials. Tomlin’s first three
convictions were reversed on direct appeal. Tomlin v. Alabama, 909 So. 2d 290,
290–91 (Ala. Crim. App. 2004). The courts reversed Tomlin’s convictions following
1 The facts are not in dispute, and Petitioner does not claim factual innocence.
The
Alabama Court of Criminal Appeals thoroughly recited the facts in Tomlin v.
Alabama, 909 So. 2d 213, 224–25 (Ala. Crim. App. 2002) rev’d in part sub nom. Ex
parte Tomlin, 909 So. 2d 283 (Ala. 2003).
2
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his first and second capital murder trials, in 1978 and 1990 respectively2, because of
prosecutorial misconduct. See Ex parte Tomlin, 540 So. 2d 668, 671 (Ala. 1988);
Tomlin v. Alabama, 591 So. 2d 550, 559 (Ala. Crim. App. 1991).
On May 28, 1993, before his third capital murder trial, a grand jury reindicted Petitioner in a single count indictment charging him with violation of Code
of Alabama § 13-11-2(a)(10). That indictment, which controls Petitioner’s present
sentence, reads as follows:
COUNT 1
The GRAND JURY of [Mobile] County charge, that, before the finding
of this indictment, Phillip Wayne Tomlin, whose name is to the Grand
Jury otherwise unknown than as stated, did by one act or a series of
acts, unlawfully, intentionally, and with malice aforethought, kill
Richard Brune by shooting him with a gun, and unlawfully,
intentionally and with malice aforethought, kill Cheryl Moore by
shooting her with a gun, in violation of Code of Alabama 1975, § 13-112(10), against the peace and dignity of the State of Alabama.
(Doc. 9-1, p. 145). Petitioner was convicted of the capital murder charge, and the
jury unanimously recommended life without parole. The trial judge, however,
overrode the life verdict and sentenced Petitioner to death by electrocution on
January 21, 1994. On June 21, 1996, The Alabama Court of Criminal Appeals
reversed the conviction because of juror misconduct. Tomlin v. Alabama, 695 So. 2d
157, 174 (Ala. Crim. App. 1996), on reh’g (Sept. 27, 1996).
2 Petitioner’s original direct appeal remained pending until 1988 because of ongoing
litigation concerning the constitutionality of Alabama’s death penalty statutes.
(Doc. 9, p. 5). During the appeal process, Tomlin sat on death row for roughly
twenty-six years. See Tomlin v. Alabama, 909 So. 2d 290 (Ala. Crim. App. 2004).
3
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In June 1999, Petitioner was again tried under the May 28, 1993 indictment.
This is the conviction at issue in this case. On August 8, 2000, after a sentencing
hearing, the trial judge overrode the unanimous jury verdict of life without parole
and sentenced Petitioner to death. See Tomlin v. Alabama, 909 So. 2d 213, 275
(Ala. Crim. App. 2002), rev’d in part sub nom. Ex parte Tomlin, 909 So. 2d 283 (Ala.
2003). On appeal, the Alabama Supreme Court affirmed his conviction but reduced
his sentence to life imprisonment without parole. Ex parte Tomlin, 909 So. 2d 283,
286 (Ala. 2003). The Alabama Supreme Court found Petitioner’s death sentence
“illegal for the absence of an aggravating circumstance enumerated in section § 1311-6.” Ex parte Tomlin, 909 So. 2d at 289.
During state post-conviction proceedings, Petitioner argued unsuccessfully
that his life sentence without parole violated ex post facto and due process
principles under the United States and Alabama Constitutions.3 In his January
3 Petitioner raised similar ex post facto concerns on direct appeal.
See Tomlin v.
Alabama, 909 So. 2d 213, 277 (Ala. Crim. App. 2002), rev’d in part sub nom. Ex
parte Tomlin, 909 So. 2d 283 (Ala. 2003). When addressing this claim, the Alabama
Court of Criminal Appeals simply stated:
“The appellant’s argument that applying in his trial the procedures we
set forth in Beck v. [Alabama], 396 So. 2d 645 (Ala. 1980), violated the
ex post facto clause of the United States Constitution is without merit.
The United States Supreme Court in an analogous decision involving
Florida’s death penalty statute, found no violation of the ex post fact
clause existed. See Dobbert v. Florida, 432 U.S. 282, 97 S. Ct. 2290, 53
L.Ed.2d 344 (1977).”
Tomlin, 909 So. 2d at 277. Additionally, the Alabama Supreme Court discussed ex
post facto considerations only as they applied to Tomlin’s death sentence. Ex parte
Tomlin, 909 So. 2d 283, 288 (Ala. 2003) (“The constitutional prohibitions against
applying ex post facto laws against criminal defendants foreclose the application of
4
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2007 amended Rule 32 petition, Petitioner argued he is entitled to post-conviction
relief because, as the Court of Criminal Appeals phrased it, “the trial court allegedly
improperly sentenced him to imprisonment for life without the possibility of parole.”
(Doc. 12-10, p. 2). The Court of Criminal Appeals, affirming the circuit court’s
dismissal of the petition (Doc. 12-6, p. 15), concluded this claim is without merit
because “the trial court complied with the Alabama Supreme Court’s instructions
and sentenced the appellant to imprisonment for life without the possibility of
parole.” (Doc. 12-10, p. 3). The state court complied with the Alabama Supreme
Court’s order to reduce Petitioner’s sentence from death to life without parole. (Doc.
12-10).
In his habeas corpus petition, Petitioner argues that his sentence of life
without parole is illegal because the state statutes applicable to his case require the
finding of an aggravating circumstance before he could be charged with capital
murder or such a sentence may be imposed. (Doc. 1 pp. 50–51). After filing his
reply but before the magistrate judge issued her report and recommendation,
Tomlin filed a motion for leave to file a supplemental pleading. (Doc. 22). His
proposed supplemental pleading references the “Billy Joe Magwood Opinions,” a
series of cases scrutinizing the same Alabama statutes that appear in Tomlin’s case,
which reached the United States Supreme Court while his petition remained
pending.4 (Doc. 22-1, p. 16). Petitioner brought this line of cases to the Court’s
this new § 13A-5-49(9) aggravating circumstance against Tomlin.”).
4 “Where precedent that is binding in this circuit is overturned by an intervening
5
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attention in his motion to supplement, but this Court failed to rule on the motion or
fully address his ex post facto or fair-warning due process claims raised therein.
The Court entered an order adopting the magistrate judge’s report and
recommendation denying the Petition. (Doc. 32). Petitioner appealed, and the 11th
Circuit Court of Appeals reversed this Court’s decision. (Doc. 40).
On remand from the Eleventh Circuit, this Court ordered supplemental
briefing regarding the ex post facto and fair warning due process claims. (Doc. 43).
In his supplemental brief, Petitioner asserts that his sentence violates the
prohibition against ex post facto laws and the Fourteenth Amendment due process
right to fair warning. (Doc. 46, p. 31). In support of this contention, Tomlin raises a
two-pronged argument. First, he argues that a plain language interpretation of the
Alabama Death Penalty Act of 1975 (the “1975 Act”) precludes the state from
charging him with capital murder or sentencing him to life imprisonment without
parole because an Alabama Code § 13-11-6 aggravating circumstance was not and
could not be averred in the indictment. Id. Second, he contends that such an
indictment or sentence is possible only through the retroactive application of
subsequent judicial decisions, which results in the constitutional violations specified
above. Id. at 41. Respondent counters that Petitioner is precluded from presenting
this claim in federal court because Petitioner “never presented [such arguments] to
decision of the Supreme Court, we will permit an appellant to raise in a timely
fashion thereafter an issue or theory based on that new decision while his direct
appeal is still pending in this Court.” United States v. Durham, 795 F.3d 1329,
1330 (11th Cir. 2015).
6
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the Alabama courts.” (Doc. 47, p. 7). Alternatively, Respondent contends that the
constitutional claim is without merit for two reasons. First, Respondent argues that
Petitioner’s case is factually distinguishable from the line of cases finding the
constitutional violation presently alleged. Id. at 9. And second, “[a]lthough not
eligible to receive a death sentence based only on the offense charged, when Tomlin
was charged with a capital offense under § 13-11-2, he was clearly given notice he
was subject to a minimum sentence of life in prison without parole.” Id. at 16. “If
no post-verdict aggravating circumstances were found, the statute provided for life
imprisonment without parole for conviction” of a capital felony. Id.
In accordance with the remand order, this Court must first determine which
claims are properly before it. (Doc. 40, p. 5).
II.
Whether Petitioner’s Claims are Properly Before the Court
In order to be properly before this Court, Petitioner must have exhausted his
claims and followed all procedural prescriptions. The Court evaluates each
requirement in turn.
a. Exhaustion of Claims
Section 2254 generally requires petitioners to exhaust all available state-law
remedies. 28 U.S.C. § 2254(b)(1)(A). In that regard, “[a] petitioner must alert state
courts to any federal claims to allow the state courts an opportunity to review and
correct the claimed violations of his federal rights . . .. Thus, to exhaust state
remedies fully the petitioner must make the state court aware that the claims
asserted present federal constitutional issues.” Lamarca v. Secretary, Dep’t of
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Corrections, 568 F.3d 929, 936 (11th Cir. 2009) (citations omitted). A federal court
should dismiss a state prisoner’s federal habeas petition if the prisoner has not
exhausted all available state remedies as to his federal claims. See Roase v. Lundy,
455 U.S. 509 (1982); 28 U.S.C. 2254(b) (codifying this rule). The exhaustion
requirement is grounded in principles of comity; in a federal system, the States
should have the first opportunity to address and correct alleged violations of a state
prisoner’s federal rights.
A key element to the exhaustion requirement is that a federal claim be “fairly
presented” to a state’s highest court, either on direct appeal or collateral review.
Picard v. Connor, 404 U.S. 270, 275 (1971). “It is not sufficient merely that the
federal habeas petitioner has been through the state courts . . . nor is it sufficient
that all the facts necessary to support the claim were before the state courts or that
a somewhat similar state-law claim was made.” Kelley v. Sec’y for Dept. of Corr.,
377 F.3d 1317, 1343–44 (11th Cir. 2004) (citing Picard, 404 U.S. at 275–76 and
Anderson v. Harles, 459 U.S. 4, 6 (1982)). Rather, to ensure state courts have the
first opportunity to decide the federal issue, a state prisoner must “present the state
courts with the same claim he urges upon the federal courts.” Picard, 404 U.S. at
276 (citations omitted). A word-for-word recitation of the claim is not required, but
the claim must be “such that the reasonable reader would understand each claim’s
particular legal basis and specific factual foundation.” Kelley, 377 F. 3d at 1344–45.
And a court should liberally construe pro se habeas corpus petitions. Dupree v.
Warden, 715 F.3d 1295, 1299 (11th Cir. 2013). But that does not mean a court is
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expected to infer a pro se petitioner’s federal claim “out of thin air.” Landers v.
Warden, 776 F.3d 1288, 1296 (11th Cir. 2015) (finding pro se petitioner’s claim not
exhausted when no supporting cases were cited and no reference to the Fourteenth
Amendment or Due Process was made).
Respondent does not contend that Petitioner failed to raise an argument
before the Alabama courts. Instead, Respondent contends that what “Tomlin
presented . . . to the Alabama courts was an allegation the trial court lacked
jurisdiction to impose a sentence of life without parole on the indictment because of
the language of the statute.” (Doc. 47, p. 7). Thus, he made a state law claim to the
Alabama courts and not the constitutional claim he now asserts. Id.
The record of this case is voluminous, and the procedural history is
convoluted. Nonetheless, the Court is satisfied that Petitioner, acting pro se, fairly
presented his ex post facto and due process claim to the Alabama courts. To be
sure, in his Rule 32 post-conviction proceeding with the state trial court, Petitioner
argued that the indictment charging him with capital murder failed to aver a
“corresponding aggravating circumstance.”5 (Doc. 12-4, p. 93). Citing the relevant
death penalty statute, ALA. CODE § 13-11-1 (1975), he argued that a capital murder
indictment “devoid of aggravating circumstances” precluded a defendant from being
sentenced to either death or life without the possibility of parole. Id. Petitioner
cited the Alabama Constitutions Ex Post Facto Clause in support of this claim. Id.
5 This particular argument is contained in Petitioner’s Amended Rule 32 Petition.
The state trial court considered the amended petition in its decision. See (Doc. 12-4,
p. 18).
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at 94. That fact that Petitioner failed to reference the United States Constitution
Ex Post Facto Clause is not fatal. Petitioner averred that the state trial court’s
actions “violated [his] substantive [r]ight to due process” under the United States
Constitution. Id. A reasonable reader would understand Petitioner’s due process
argument as including an ex post facto component. See Rogers v. Tennessee, 532
U.S. 451, 456 (2001) (reasoning that ex post facto protections are inherent in due
process).
After the trial court denied his post-conviction action, Petitioner appealed to
the Alabama Court of Criminal Appeals. See (Doc. 12-7, pp. 1–78). Although it was
not word-for-word, Petitioner’s appeal brief made an argument parallel to his trial
court pleading in Claim VII-1. First, he argued that his sentence was illegal due to
the indictment’s absence of an “aggravating circumstance enumerated” in §13-11-6.
Id. at 68. In making this argument, Petitioner specifically cited the Ex Post Facto
Clause. See id. at 67 (citing U.S. Const. art. 1, § 10). Second, Petitioner specifically
stated that his sentence of life imprisonment without parole violates the right to
due process guaranteed by the United States Constitution. Id. at 62. He argued
that he was acquitted of any § 13-11-2 capital felonies with corresponding § 13-11-6
aggravating circumstances. Id. at 68. He also argued that the indictment
contained no § 13-11-6 aggravating circumstance. “As such,” he argued, his
“sentence is illegal.” Id. at 68. A reasonable reader would understand Petitioner’s
pro se legal and factual basis to be constitutional and grounded in the prohibition of
ex post facto laws and due process protections. His argument was not hidden
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within the pleading, nor was it a moving target, shifting with the turn of each page.
See McNair v. Campbell, 416 F.3d 1291, 1303 (11th Cir. 2005) (explaining that
exhaustion requires more than scattering some makeshift needles of federal claims
in the haystack of the state court record).
As a last point of potential relief in the Alabama court system, Petitioner
filed a petition for writ of certiorari with the Alabama Supreme Court. (Doc. 12-12).
He again argued that his sentence is invalid due to his ineligibility for life without
the possibility of parole because no aggravating circumstance was averred in the
indictment. Id. at 10. Although his foundation for potential review rested in the ex
post facto application of law, Petitioner specifically referenced his argument in the
appellate court that dealt with federal due process protections, too. See Id. at 9.
Therefore, given the pro se nature of Petitioner’s pleading, the Court is satisfied
that a reasonable reader would have interpreted his argument to also contain a
federal due process element.
In the instant matter, Claim XXX is the claim at issue. (Doc. 1, p. 50). Claim
XXX alleges that a sentence of life without the possibility of parole violates
Petitioner’s right under the “Fourteenth Amendment[ ] (due process and equal
protection of the law) as guaranteed in the United States Constitution.” Id. at 51.
This argument is grounded in a manner similar to that plead in state court: the
indictment failed to expressly aver aggravating circumstances. Id. Although
Petitioner does not argue the constitutional guarantee against the ex post facto
application of law, it is not fatal for the same reason state above: such a limitation
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is inherent in the principles of due process. See Rogers, 532 U.S. at 456. Thus, a
common thread runs through Petitioner’s pleadings that would lead a reasonable
reader to understand the legal basis and factual foundation of his claim as
constitutional. Moreover, Respondent conceded in his answer that “Tomlin’s claims
have been fully exhausted through available state remedies.” (Doc. 9, p. 11).
Therefore, the Court finds Petitioner fairly presented his claims to the Alabama
courts and met the exhaustion requirement.
b. Procedural Bar
Respondent argues that Petitioner is procedurally barred from bringing the
instant action because he filed his constitutional claims outside Alabama’s one-year
statute of limitation for post-conviction proceedings. (Doc. 47, p. 8). Respondent
also argues that any claim Petitioner raised was jurisdictionally, not
constitutionally based, Id at 7, and that therefore, the state court’s denial rests on
adequate and independent state grounds. Petitioner, however, argues that his
claims were federal claims and not procedurally barred because the state courts
failed to expressly assert such a bar. (Doc. 48, p. 14).
“The teeth of the exhaustion requirement comes from its handmaiden, the
procedural default doctrine.” Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001).
Under this doctrine, “[a] state court’s rejection of a petitioner’s constitutional claim
on state procedural grounds will generally preclude any subsequent federal habeas
review of that claim.” Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). “[A]
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procedural default does not bar consideration of a federal claim on either direct or
habeas review unless the last state court rendering a judgment in the case ‘clearly
and expressly’ states that its judgment rests on a state procedural bar.” Harris v.
Reed, 489 U.S. 255, 263 (1989). Therefore, it is insufficient that the state court
could have procedurally barred a federal claim. Caldwell v. Mississippi, 472 U.S.
320, 327 (1985). It must actually do so. Id.
Even if a claim is procedurally barred, a federal court may reach the merits of
a claim if the petitioner can show “cause for the default and actual prejudice as a
result of the alleged violation of federal law, or demonstrate that failure to consider
the claims will result in a fundamental miscarriage of justice.” Coleman v.
Thompson, 501 U.S. 722, 750 (1991). The Supreme Court has “not identified with
precision exactly what constitutes ‘cause’ to excuse a procedural default.” Edwards
v. Carpenter, 529 U.S. 446, 451 (2000). Nonetheless, “the existence of cause for a
procedural default must ordinarily turn on whether the prisoner can show that
some objective factor external to the defense impeded counsel’s efforts to comply
with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986).
Actual prejudice goes beyond mere error and reaches a level that works to a
defendant’s “actual and substantial disadvantage, infecting his entire trial with
error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 172
(1982).
A fundamental miscarriage of justice occurs when a “constitutional violation
probably has caused the conviction of one innocent of the crime.” McCleskey v. Zant,
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499 U.S. 467, 494 (1991). In order to show actual innocence, a petitioner must
present “reliable evidence . . . not presented at trial” such that “it is more likely
than not that no reasonable juror would have convicted him of the underlying
offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (internal
quotation marks omitted). Therefore, the “actual innocence” exception requires
more than a showing that the petitioner is merely guilty of some lesser degree of
wrongdoing. Rozzelle v. Sec., Fla. Dept. of Corr., 672 F.3d 1000, 1017 (11th Cir.
2012).
Petitionr does not argue cause and prejudice or actual innocence, so the only
question is whether the state court clearly invoked a procedural bar. In an
Alabama post-conviction proceeding, a procedural bar applies to constitutional
claims filed more than “one (1) year after the issuance of the certificate of judgment
by the Court of Criminal Appeals . . . .” Ala. R. Crim. P. 32.2(c). On direct appeal of
his conviction, Petitioner filed a writ of certiorari with the Alabama Supreme Court
after the appellate court denied his claim. The Alabama Supreme Court denied
certiorari on March 18, 2005. (Doc. 12-1). The Alabama Court of Criminal Appeals’
decision became final on the same day. (Doc. 12-2). Therefore, Petitioner faced a
March 18, 2006 deadline for post-conviction constitutional claims. Petitioner,
however, waited until December 2006 to begin his post-conviction proceeding with
the state court. Further, the argument at issue, amendment three of the amended
post-conviction pleading, was not before the trial court until August 2007. (Doc. 124, p. 92-95). Nonetheless, the trial court considered all claims together. (Doc. 12-4,
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p. 18.)
The state trial court’s consideration of Petitioner’s claims can be categorized
in two ways: (1) claims denied for lack of proper specificity under Rules 32.6(b) and
33.3 (sic) of the Alabama Rules of Criminal Procedure (Doc. 12-4, pp.19–20), and (2)
claims preluded by the statute of limitations under Rule 32.2(c) of the Alabama
Rues of Criminal Procedure. Id. The trial court placed the claim at issue into the
first category. The Court finds this important for several reasons. First, there is no
doubt that the instant claim was not procedurally barred when eight other claims
were unequivocally labeled as such and this one was not. See (Doc. 12-4, p. 20).
Second, within the Eleventh Circuit, dismissal under Rule 32.6 of the Alabama
Rules of Criminal Procedure is deemed a ruling on the merits in a federal habeas
action and not a procedural bar. See Boyd v. Alabama Dept. of Corr., 697 F.3d 1320,
1331 (11th Cir. 2012).
The Court of Criminal Appeals evaluated Petitioner’s claims in a similar
fashion.6 That court divided Petitioner’s claims into (1) those claims procedurally
barred and (2) those claims found to be without merit. The instant claim fell into
the latter. The appellate court found in relevant part:
The appellant filled his petition more than one year after this
court issued a certificate of judgment. Therefore, claims 1, 3, and 5 are
precluded because they are time-barred. See Rule 32.2(c), Ala. R.
6 “When the last state court rendering judgment affirms without explanation, we
presume that it rests on the reasons given in the last reasoned decision.” Powell v.
Allen, 602 F.3d 1263, 1268 n.2 (11th Cir. 2010) (citing Ylst v. Nunnemaker, 501 U.S.
797, 803–05 (1991)). The Alabama Supreme Court summarily denied Tomlin’s writ
with no opinion. (Doc. 12-13). Therefore, the appellate court decision is the last
state decision, and the proper decision to decide the procedural default issue.
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Crim. P.
***
Finally, with regard to claim 4, after this court [sic] affirmed the
appellant’s conviction and sentence of death, the Alabama Supreme
Court “reverse[d] the judgment of the Court of Criminal Appeals as to
Tomlin’s sentence and remand[ed] the case for that court to instruct
the trial court to resentence Tomlin, following the jury’s
recommendation of life imprisonment without the possibility of parole.”
See Tomlin v [Alabama], 909 So. 2d 283, 287 (Ala. 2003). On remand,
the trial court complied with the Alabama Supreme Court’s
instructions and sentenced the appellant to imprisonment for life
without the possibility of parole. See Tomlin v. [Alabama], 909 So. 2d
290 (Ala. Crim. App. 2004). Therefore, the appellant’s argument is
without merit.
(Doc. 12-10, pp. 2–3). Although the appellate court’s wording for Claim 4 did
not exactly mirror Petitioner’s, the Court is satisfied that it understood the
nature by its characterization: “the trial court allegedly improperly sentenced
[Petitioner] to imprisonment for life without the possibility of parole.” (Doc.
12-10 at 2). It is clear from this language that the appellate court declined to
procedurally bar Claim 4 when it did so to Claims 1, 3, and 5. Instead, Claim
4 was specifically found to be without merit. This language is no accident,
and the Court gives it due weight. Such weight dictates that adequate and
independent state law grounds do not procedurally bar Petitioner’s claim. Cf.
Cumble v. Singletary, 997, F.2d 715, 720 (11th Cir. 1993) (concluding that a
state court decision finding appellant’s claim had “no merit” was not based on
state procedural grounds).7 Therefore, under the “plain statement” rule, the
7 Furthermore, Respondent’s argument that Claim 4 was denied on jurisdictional
grounds is not well taken. The appellate court did not classify Claim 4 as
jurisdictional like it did Claim 2: “the district court allegedly did not have
jurisdiction to conduct a felony trial.” Id. at 2. Under Claim 4, the appellate court
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Court is bound to evaluate Petitioner’s federal claims in this habeas
proceeding. See Harris, 489 U.S. at 263.
III.
The Antiterrorism and Effective Death Penalty Act of 1996
Having determined that Petitioner’s claims are properly before the Court, it
is necessary to identify the level of deference afforded to the state court decision.
Based on the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a
district court cannot grant a petition for writ of habeas corpus on behalf of a person
in custody pursuant to a state court judgment unless 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.” 28 U.S.C. §
2254(d); see also White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (outlining the
habeas standard in § 2254). “[A] state court acts contrary to clearly established
federal law if it ‘confronts a set of facts that are materially indistinguishable from a
decision of [the Supreme] Court and nevertheless arrives at a result different from
[its] precedent.’” Smith v. Sec’y, Dep’t of Corr., 572 F.3d 1327, 1333 (11th Cir. 2009)
(second alteration in original) (quoting Williams v. Taylor, 529 U.S. 362, 406
(2000)). When a state court “identifies the correct governing legal rule . . . but
unreasonably applies it to the facts of the particular state prisoner’s case,” a state
court’s decision involves an unreasonable application of clearly established federal
does not use the word jurisdiction at all.
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law. Williams, 529 U.S. at 407. An unreasonable application of clearly established
federal law may also occur when a state court “unreasonably extends, or
unreasonably declines to extend, a legal principle from Supreme Court case law to a
new context.” Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001).
A state court’s decision is entitled AEDPA deference even if the state court
provides no reasoning for its ruling. If a state court summarily denies a claim
without explanation, the petitioner must show there was no reasonable basis for the
state court to deny relief. Harrington v Richter, 562 U.S. 86, 98 (2011). This
requires a federal habeas court to “determine what arguments or theories
supported, or . . . could have supported, the state court’s decision.” Id. at 786. The
court then must whether “whether it is possible fair-minded jurists could disagree
that those arguments or theories are inconsistent” with a prior decision of the
Supreme Court. Id.
The § 2254 habeas standard “is difficult to meet.” Metrish v. Lancaster, 133
S. Ct. 1781, 1786 (2013). And such a high bar is no mistake. Ritcher, 562 U.S. at
102. Section 2254 habeas relief “functions as a guard against extreme malfunctions
in the state criminal justice systems, and not as a means of error correction.”
Greene v. Fisher, 132 S. Ct. 38, 43 (2011) (internal citations and quotation marks
omitted). Putting this standard into practice in the instant matter, the Court is
cognizant that “[a] federal court may not grant habeas relief on a claim a state court
has rejected on the merits simply because the state court held a view different from
its own.” Hill v. Humphrey, 662 F.3d 1335, 1355 (11th Cir. 2011).
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As an initial matter, Petitioner argues that the state court decision did not
address the merits of his claims and, therefore, is not due AEDPA deference. He
contends that a merits evaluation required the state court to evaluate the “intrinsic
rights and wrongs” of his claims. (Doc. 46, p. 46). In support of this position,
Petitioner cites Johnson v. Williams, 133 S. Ct. 1088 (2013). Alternatively,
Petitioner argues AEDPA deference is not due because Respondent failed to
“invoke” such deference. (Doc. 48, pp. 18–19).
Petitioner misses the mark with Johnson. Although the Johnson Court
discussed when a claim is evaluated “on the merits,” Johnson’s focus was whether
the Harrington v. Richter, 562 U.S. 86 (2011), presumption was rebuttable. Richter
held that state court decisions summarily rejecting claims, even those including
federal issues later pursued in federal court, are presumed adjudicated on the
merits. 562 U.S. at 97–100. Johnson held that a petitioner may rebut this
presumption with evidence that “leads very clearly to the conclusion that a federal
claim was inadvertently overlooked in state court.” 133 S. Ct. at 1097. In such a
situation, AEDPA deference does not apply. Id.
Petitioner failed to overcome the Richter presumption. The state court
specifically found the claim at issue “without merit.” (Doc. 12-10, p. 3). This phrase
is dispositive. See Moritz v. Lafler, 525 Fed. Appx. 277, 284 (6th Cir. 2013) (finding
a state court’s opinion that identifies a claim as “without merit” enough to invoke
AEDPA deference). And when Petitioner quotes Johnson regarding a federal claim
being rejected out of “sheer inadvertence” (Doc. 46, p. 46), it is out of context. In
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that sense, the Court was speaking to a claim being unaddressed through oversight.
See Johnson, 133 S. Ct. at 1097. That did not happen here. The state court
squarely dealt with the claim at issue in deciding what it termed “Claim 4.” (Doc.
12-10, p. 2). Therefore, Petitioner failed to show that the state appellate court
decision should be denied AEDPA deference.8
In addition, Petitioner’s argument that Respondent waived the “contention
that AEDPA deference should apply” does not hold water. See (Doc. 48, pp. 18–19).
“[T]he standard of review under AEDPA cannot be waived by the parties.” Gardner
v. Galetka, 568 F.3d 862, 879 (10th Cir. 2009), cert. denied, 559 U.S. 993 (2010); see
also Eze v. Senkowski, 321 F.3d 110, 121 (2d Cir. 2003) (holding that AEDPA
deference “is not a procedural defense, but a standard of general applicability for all
petitions filed by state prisoners after the statute’s effective date presenting claims
that have been adjudicated on the merits by a state court”). AEDPA “is, unlike
exhaustion, an unavoidable legal question we must ask, and answer, in every case.”
Gardner, 568 F.3d at 879. Therefore, AEDPA deference applies.
A. Clearly Established Federal Law
Finding AEDPA deference due, it is necessary to identify the “clearly
established Federal law, as determined by the Supreme Court of the United States”
8 Besides, to say that the state appellate court did not decide the federal issue on
the merits works to Tomlin’s detriment. If the federal issue was not addressed on
the merits, what issue was found to be without merit? Was it the state
jurisdictional issue? If so, this means that Claim 4 was decided on adequate and
independent state procedural grounds. Thus, Tomlin’s present claim would be
procedurally barred and not properly before the Court. See Harris v. Reed, 489 U.S.
255, 260 (1989).
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that applies to this case and whether the state court arrived at a conclusion that
was contrary “to that reached by th[e] Court on a question of law or if the state
court decide[d] [this] case differently than the Court has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). “Avoiding
th[is] pitfall[ ] does not require citation [to] cases -- indeed, it does not even require
awareness of [binding] cases, so long as neither the reasoning nor the result of the
state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002).
“Clearly established Federal law for the purposes of § 2254(d)(1) includes only the
holdings, as opposed to the dicta, of [the] Court’s decisions.” White v. Woodall, 134
S. Ct. 1697, 1702 (2014). Additionally, only those holdings set fort as of the time the
state court renders its decision are applicable. Greene v. Fisher, 132 S. Ct. 38, 44
(2011).
In support of his alleged constitutional violations, Tomlin cites Bouie v. City
of Columbia, 378 U.S. 347 (1984), Rogers v. Tennessee, 532 U.S. 451 (2001), as the
clearly established Federal law. (Doc. 46, p. 41).
i.
Bouie v. City of Columbia
During the height of the civil rights movement, two African American college
students refused to leave a restaurant after a “no trespassing” sign was posted and
the manager asked them to leave. Bouie, 378 U.S. at 348. Police arrested the
students and charged them with criminal trespass in violation of “s 16–386 of the
South Carolina Code of 1952 (1960 Cum. Supp.).” Id. at 349. The terms of the
statute defined criminal trespass as “‘entry upon the lands of another *** after
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notice from the owner or tenant prohibiting such entry ***.’” Id. (citation omitted).
In affirming the students’ conviction, the South Carolina Supreme Court relied on
City of Charleston v. Mitchell, 123 S.E. 2d 512 (S.C. 1961), which was decided after
the “sit-in” demonstration occurred. Mitchell “construed the statute to cover not
only the act of entry on the premises of another after receiving notice not to enter,
but also the act of remaining on the premises of another after receiving notice to
leave.” Id. at 350. The students argued the court’s interpretation and retroactive
application of the statute violated the “requirement of the Due Process Clause that
a criminal statute give fair warning of the conduct which it prohibits.” Id. In
writing for the Court, Justice Brennan held that the judicial interpretation
constituted a fair warning violation of the Due Process Clause.
In reaching this holding, the Court identified two instances in which a fair
warning violation may arise: (1) statutory language that is vague or overbroad or (2)
“from an unforeseeable and retroactive judicial expansion of narrow and precise
statutory language.” Id. at 352. The thrust of the second potential violation is that
“an unforeseeable judicial enlargement of a criminal statute, applied retroactively,
operates precisely like an ex post facto law, such as Art. I, s 10 of the Constitution
forbids.” Id. at 353. A law applies in an ex post facto manner when a legislative
enactment has one of four effects: (1) makes an act innocent when done criminal
after commission; (2) “aggravates a crime, or makes it greater than it was, when
committed”; (3) changes a punishment by making it greater than the punishment
associated with the law when the act is committed; and (4) alters evidentiary rules
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so that less or different evidence is required to convict a defendant than was
required when the act is committed. Calder v. Bull, 3 Dall. 386, 390 (1798)
(seriatim opinion of Chase, J.) (emphasis deleted). It stands to reasons that the Due
Process Clause prohibits the judiciary from exacting the same evil the Ex Post Facto
Clause prohibits the legislature from enacting. Thus, when the “judicial
construction of a criminal statute is unexpected and indefensible by reference to the
law which had been expressed prior to the conduct in issue,” the due process right of
fair warning is violated if the judicial construction is retroactively applied. Bouie,
378 U.S. at 354.
ii.
Rogers v. Tennessee
In Rogers v. Tennessee, 532 U.S. 451 (2001), the Court interpreted Bouie and
illustrated when the retroactive application of a judicial construction complies with
the fair warning requirement. A Tennessee jury convicted Wilbert Rogers of
second-degree murder when a man died approximately fifteen months after Rogers
stabbed him. Id. at 454. After his conviction, he appealed his case and raised the
common law “year and a day rule” as a defense.9 Id. When the Tennessee Supreme
Court decided his case, it abolished the “year and a day rule” and retroactively
applied the abolition to Rogers. Id. at 455. The state court rejected Rogers’
contention that such an action violated the Ex Post Facto Clause of the State and
9 The “year and a day rule” is a “common-law principle that an act causing death is
not homicide if the death occurs more than a year and a day after the act was
committed.” BLACK’S LAW DICTIONARY (10th ed. 2014).
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Federal Constitution and further held that its actions comported with Bouie. Id.
The United States Supreme Court affirmed the state court decision on appeal. Id.
at 456.
In reaching its decision, the Court rejected as dicta language in Bouie
suggesting that fair warning protections are an absolute prohibition on the judiciary
in the same manner that ex post facto prohibitions are on the legislature. Id. at
459. Moreover, strict application of the Ex Post Facto Clause on courts through due
process cuts against “clear constitutional text.” Id. at 460. “It also would evince too
little regard for the important institutional and contextual differences between
legislating, on the one hand, and common law decisionmaking, on the other.” Id.
Given this, the Court reaffirmed that the proper measure of a fair warning
claim is whether the “judicial alteration’[s]” retroactive application was
“‘unexpected and indefensible by reference to the law which had been expressed
prior to the conduct in issue.’” Id. (quoting Bouie, 378 U.S. at 354). In finding
Tennessee’s abolition of the “year and a day rule” expected and defensible, the
Court reasoned in three parts: (1) the reason for the rule no longer existed, (2)
“practically every court recently” to have considered the rule found “it without
question obsolete,” and (3) the rule “had only the most tenuous foothold as part of
the criminal law” at the time of Rogers’ crime. Id. at 463–64. As such, the Court
held that the state court’s abolition was not an “unfair and arbitrary judicial action
against which the Due Process Clause aims to protect.” Id. at 467. Instead, “the
court’s decision was a routine exercise of common law decisionmaking in which the
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court brought the law into conformity with reason and common sense.” Id.
Synthesizing Bouie and Rogers, it is clear that the absolute bar against ex
post facto laws is inapplicable in a judicial interpretation context. More deference is
afforded to judicial interpretations retroactively applied to outmoded common law,
whereas judicial broadening retroactively applied to narrow legislatively enacted
law is not. And this principle of Federal law was clearly established at the time of
the state court’s decision. Further, in analyzing whether a judicial broadening is
“unexpected and indefensible” or in “conformity with reason and common sense,” it
is necessary to analyze the “statutory language at issue, its legislative history, and
judicial constructions of the statute.” Webster v. Woodford, 369 F.3d 1062, 1069 (9th
Cir. 2004).
In evaluating whether the state court’s decision is contrary to the above, the
Court notes that the state court’s post-conviction decision provides no reasoning
beyond finding Petitioner’s sentence is as the Alabama Supreme Court ordered. See
(Doc. 12-10, p. 2). The Alabama Supreme Court opinion ordering his sentence of life
imprisonment without parole offers no guidance because Petitioner’s argument
regarding his sentence of death on direct appeal differs from his post-conviction
argument, which is the argument presently before the Court. See Ex parte Tomlin,
909 So. 2d 283, 286 (Ala. 2003) (deciding Petitioner’s sentence of death was invalid
because the trial judge overrode a unanimous jury recommendation of life
imprisonment without parole). Thus, it is necessary to “determine what arguments
or theories supported, or . . . could have supported, the state court’s decision.”
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Richter, 562 U.S. at 102. This determination starts with an analysis of the 1975
Alabama Death Penalty Act’s inception and evolution.
B. 1975 Alabama Death Penalty Act
On the heels of Furman v. Georgia, 408 U.S. 238 (1972),10 the Alabama
legislature enacted the 1975 Alabama Death Penalty Act (the “1975 Act”). ALA.
CODE § 13-11-1, et seq. (1975). The evolution of the 1975 Act can be broken down
into three phases: (1) the strict language of the 1975 Act; (2) the judicial
interpretation of the 1975 Act by Beck v. Alabama, 396 So. 2d 645 (1981), and Ex
parte Kyzer, 399 So. 2d 330 (1981); and (3) repudiation of the 1975 Act with the
1981 Alabama Death Penalty Act (the “1981 Act”).
i.
Phase 1
The 1975 Act pertained to the commission of all capital offenses occurring
from March 7, 1976 until June 30, 1981.11 It promulgated that, “the death penalty
or a life sentence without parole shall be fixed as punishment only in the cases and
in the manner herein enumerated and described in section 13-11-2.” ALA. CODE §
13-11-1 (1975).
10 In Furman, the Supreme Court unequivocally denounced the unbridled discretion
of a jury or sentencing authority to impose the death penalty, “concluding that
unguided sentencing led to the discriminatory, arbitrary, and capricious imposition
of the death penalty in violation of the Eighth Amendment.” Johnson v. Singletary,
938 F.2d 1166, 1179 (11th Cir. 1991). Prior to Furman and since 1841, an Alabama
jury had the unguided discretion to impose such a sentence. See Beck v. Alabama,
396 So. 2d 645 (1981) (surveying the history of Alabama’s death penalty).
11 In 1978, the Alabama legislature transferred its capital murder statutes to
Alabama Code Sections 13A-5-30 through 13A-5-38. (Supp. 1978). This Order
makes use of the original statute numbers.
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Section 13-11-2 identifies Alabama’s capital felonies and applies to the guilt
phase of a capital proceeding. This section decrees that a jury “shall fix the
punishment at death” if the criminal defendant is found guilty of a capital felony.
ALA. CODE § 13-11-2(a) (1975). However, this mandatory punishment only applies
when “the defendant is charged by indictment with any of the following offenses
and with aggravation, which must also be averred in the indictment . . . .” Id.
Relevant to this matter, § 13-11-2(a)(10) identifies “[m]urder in the first degree
wherein two or more human beings are intentionally killed by the defendant by one
or a series of acts” as a capital felony.12
The statutory scheme provided that upon conviction of a capital felony, the
capital proceeding shifted to the sentencing phase. See § 13-11-3. At this point, the
trial court was to hold a second hearing, without jury participation, to determine
whether it would “sentence the defendant to death or to life imprisonment without
parole.” Id. In order to aid in this decision, evidence as to “any matter” the court
deemed relevant to sentencing was to be presented, including evidence of the eight §
12 At the time of the act in question, Alabama defined first-degree murder as
follows:
[e]very homicide, perpetrated by poison, lying in wait, or any other
kind of willful, deliberate, malicious, and premeditated killing; or
committed in the perpetration of, or the attempt to perpetrate, any
arson, rape, robbery, or burglary, or perpetrated from a premeditated
design unlawfully and maliciously to effect the death of any human
being other than him who is killed; or perpetrated by any act greatly
dangerous to the lives of others, and evidencing a depraved mind
regardless of human life, although without any preconceived purpose
to deprive any particular person of life . . . .
ALA. CODE § 13-1-70 (1975).
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13-11-6 aggravating circumstances and seven § 13-11-7 mitigating circumstances.
Id. “Notwithstanding the fixing of the punishment at death by the jury,” the trial
court could refuse to impose a sentence of death and instead sentence a defendant to
life imprisonment without parole. § 13-11-4. Such a determination was to be made
after weighing the § 13-11-6 aggravating and § 13-11-7 mitigating circumstances.
Id. Upon upholding a jury recommended sentence of death, the 1975 Act required
the trial judge to “set forth in writing, as the basis of a sentence of death,” one or
more of the enumerated aggravating circumstances in § 13-11-6 it found present
and support a sentence of death. Id. Any mitigating circumstances the trial court
found did not outweigh the sentence of death must also be spelled out. Id.
ii.
Phase 2
Phase 2 consists of the judicial interpretation of the 1975 Act through two
Alabama cases. In the first case, the Alabama Supreme Court issued an opinion
severing a portion of the 1975 Act and revamping the capital sentencing procedure.
Beck v. Alabama, 396 So. 2d 645 (1980). In Beck, an Alabama jury convicted Gilbert
Beck of capital murder and fixed his punishment at death, per the mandatory
language of the 1975 Act. On review, the court identified two issues, the second of
which is relevant to this matter. The court framed the second issue as whether the
jury’s mandatory death sentence after finding Beck guilty of a capital felony was
constitutional. Id. at 647. On this issue, the court held that the mandatory
requirement could not be severed from the 1975 Act and the entire Act remain
feasible. Id. at 659. So the court construed “the requirement that the jury fix the
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penalty at death to be permissive instead of mandatory.” Id. at 660.
In a further attempt to comport with constitutional requirements, the court
implemented procedural changes in capital cases that, although classified as
bifurcated, trifurcated the process into a guilt phase and a sentencing phase made
up of two parts. Id. at 662. The central issue of the guilt phase of a capital
proceeding was whether the state proved beyond a reasonable doubt that the
defendant is guilty of each element of a capital felony. Id. at 662. If a jury
convicted the defendant of the capital felony, a sentencing hearing was held. The
central issue of the sentencing phase became whether the aggravating
circumstances outweighed the mitigating circumstances, which would justify a
sentence of death. Id. at 662. A fundamental change i implemented in the
sentencing phase is that the jury would now participate in a sentencing hearing and
make a sentence recommendation. Id. at 659. In making a sentence
recommendation to the judge, the jury would consider the § 13-11-6 aggravating
and § 13-11-7 mitigating circumstances. Id. at 662. If the jury recommended a
sentence of death, the trial court would “hold a hearing as mandated by” § 13-11-3
and § 13-11-4. Id. at 663.
In the second case to judicially interpret the 1975 Act, Ex parte Kyzer, the
Alabama Supreme Court reviewed a conviction based on an indictment charging a
capital felony akin to the present: first-degree murder of “two or more human
beings” “by one or a series of acts.” Kyzer, 399 So. 2d 330, 332 (Ala. 1981). At the
sentencing hearing, the trial court upheld the jury’s recommendation of death based
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on “the ‘capital felony [being] especially heinous, atrocious or cruel,’ an aggravating
circumstance found in Code 1975, s 13-11-6(8).” Id. at 333.
Citing Godfrey v. Georgia, 446 U.S. 420 (1980), the Alabama Supreme Court
found that the murders were not “especially heinous, atrocious, or cruel” because
they were not “conscienceless or pitiless homicides which are unnecessarily
torturous to the victim.” Id. at 334. Based on the absence of any other § 13-11-6
aggravating circumstance, the court found itself faced with what it classified as an
“anomaly in Alabama’s Death Penalty Statute.” Id. at 334. The court asked itself
whether the death penalty would be available if Kyzer was retried since there was
not a corresponding aggravating circumstance in § 13-11-6 for the capital felony
contained in the indictment. Id. The court concluded that a “literal and technical
reading of the statute would answer this inquiry in the affirmative, but to so hold
would be completely illogical and would mean that the legislature did a completely
useless act by creating a capital [felony] for which the defendant could not
ultimately receive the death penalty.” Id. at 337. To right this situation, the court
read into the 1975 Act that a trial judge and jury may, in a sentencing hearing, rely
on the capital felony in the indictment to support a sentence of death, even if no
corresponding aggravating circumstance was included in § 13-11-6. Id. at 338.
iii. Phase 3
Phase 3 of the 1975 Act began when the Alabama legislature enacted a new
death penalty act (the “1981 Act”), which expressly repealed the 1975 Act. Act of
May 28, 1980, Pub. Act No 80-753, 1980, Acts of Alabama p. 1556–59. The 1981 Act
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articulated that it “applies only to conduct occurring after 12:01 A.M. on July 1,
1981. Conduct occurring before 12:01 A.M. on July 1, 1981 shall be governed by
pre-existing law, [the 1975 Act].” ALA. CODE § 13A-5-57.
The 1981 Act statutorily implemented many of the changes made by the
Alabama Supreme Court in Beck but rejected Kyzer’s rule on aggravating
circumstances. See ALA. CODE § 13A-5-45(f) (“Unless at least one aggravating
circumstance as defined in section 13A-5-49 exists, the sentence shall be life
imprisonment without parole.”) Consequently, under the 1981 Act, a trial court
could sentence a defendant to life imprisonment without parole after conviction of a
capital felony only if it found no corresponding aggravating circumstance, and no
other aggravating circumstance was present.
After nearly three decades, the Alabama Supreme Court rejected Kyzer’s
expansion of the 1975 Act’s § 13-11-6 aggravating circumstances. See Ex parte
Stephens, 982 So. 2d 1148 (2006). The Stephens court found this portion of Kyzer to
be dicta and unpersuasive. Id. at 1153. Further, the court reasoned that “the dicta
in Kyzer conflicts with the plain language of the Alabama Criminal Code (as the
Kyzer Court itself acknowledged).” Section 13-A-5-49, Ala. Code 1975, states that
‘[a]ggravating circumstances shall be the following.’ The language ‘shall be’—as
opposed to ‘shall include’—indicates that the list is intended to be exclusive.” Id. at
1153.
C. AEDPA Analysis of the State Court’s Decision
Petitioner argues that his “sentence of life imprisonment without parole
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violates the ex post facto principle of fair warning at the heart of the Due Process
Clause of the United States Constitution.” (Doc. 46, p 45). Respondent counters
that no constitutional violation occurred because Petitioner does not face a death
sentence. (Doc. 47, p. 16). Further, Respondent contends the 1975 Act gave fair
notice that Petitioner faced not only a death sentence but also a minimum of life
imprisonment without parole if convicted. Id.
i.
Ex Post Facto Application of Law
To begin with, Petitioner’s ex post facto argument is misplaced as an
independent argument. In essence, the thrust of his argument is that he suffers
from a change in punishment or the infliction of greater punishment due to the
retroactive application of law. See Calder, 3 Dall. at 390. The United States
Constitution commands that “[n]o State shall . . . pass any [ ] ex post facto Law . . .
.” U.S. Const. art. I, § 10, cl. 1. The Ex Post Facto Clause is a “limitation upon the
powers of the Legislature.” Rogers, 532 U.S. at 456. Assuming arguendo that
Petitioner suffers from an ex post facto application of law, it is clear that the
Alabama legislature had no hand in it. The disputed act was the doing of an
Alabama court. Therefore, the appellate court did not act contrary to clearly
established federal law in denying the ex post facto claim. Moreover, in as much as
the prohibition against ex post facto laws may apply, it is in the sense that such
protections are “inherent in the notions of due process.” Id. at 456. So when the
Court evaluates whether Petitioner’s indictment and sentence are contrary to the
right to fair warning contained in the Due Process Clause, the evaluation
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necessarily includes the ex post facto question.
ii.
The State Court Decision Is Not Contrary To Bouie
Petitioner contends that his due process right to fair warning was violated in
that the only way he could be indicted for a capital offense, tried, and sentenced to
life imprisonment without parole is through the retroactive application of Ex parte
Kyzer, 399 So. 2d 330 (1981), and Beck v. Alabama, 396 So. 2d 645 (Ala. 1981),
which were unexpected and indefensible under Bouie. (Doc. 46, pp. 41–45). In
support of this claim, Petitioner cites Magwood v. Warden, Alabama Department of
Corrections, 664 F.3d 1340 (11th Cir. 2011), for the proposition that Kyzer has
already been found to violate the due process right to fair warning.13 Id. at 45.
Petitioner’s characterization of Magwood is correct, but his situation is
distinguishable from that in Magwood.
Writing for the Eleventh Circuit, Judge Black issued an opinion interpreting
Bouie as it relates to the 1975 Act and aggravating circumstances that support a
death sentence. Magwood, 664 F.3d 1340 (11th Cir. 2011). Billy Joe Magwood
murdered the Coffee County Sheriff on March 1, 1979, and a jury convicted and
sentenced him to death in June 1981. Id. at 1342. After receiving partial federal
habeas relief, Magwood sought further habeas relief after the state court
resentenced him to death. Id. He argued that the trial court erred when it found in
the second sentencing hearing that the capital felony he was found guilty of, murder
13 A circuit court decision is not clearly established Federal law, but it is persuasive
in determining what law is clearly established. Renico v. Lett, 130 S. Ct. 1855, 1866
(2009).
33
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of a law enforcement officer, was an aggravating circumstance supporting a death
sentence although it was not specifically enumerated in § 13-11-6. Id. Magwood
argued the only way the capital felony itself constituted an aggravating
circumstance supporting a death sentence was by retroactively applying Kyzer, and
such application constituted a fair warning violation. Id. at 1346.
The Court agreed with Magwood and concluded that a “capital defendant can
raise a Bouie fair-warning challenge to a judicial interpretation of a statute that
increases his punishment from life to death.” Id. at 1348. The Court reasoned that
it was unexpected and indefensible that Kyzer would judicially expand the
aggravating circumstances supporting a death sentence to include the aggravated
offense that made the initial crime a capital felony, even though it was not
enumerated in § 13-11-6. Id. at 1349. Thus, the Eleventh Circuit affirmed the
district court’s grant of habeas relief. On remand, the trial court resentenced
Magwood to life imprisonment without the possibility of parole. (Doc. 47-1, p. 3).
As Respondent points out, Petitioner’s reliance on Magwood is misplaced.
(Doc. 47, p. 12). The instant case is factually distinct from Magwood. Billy Joe
Magwood faced a death sentence supported by an aggravating circumstance present
only because of Kyzer; Petitioner does not. The Alabama Supreme Court vacated
Petitioner’s sentence of death. Ex parte Tomlin, 909 So. 2d 283 (Ala. 2003)
(vacating Petitioner’s death sentence and instructing the trial court to resentence
him in accordance with the jury’s unanimous recommendation). Now, Petitioner
faces life imprisonment without parole, which does not require a judge to consider §
34
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13-11-6 aggravating circumstances. See § 13-11-4 (requiring the existence of § 1311-6 aggravating circumstances “[i]f the court imposes a” death sentence).
Moreover, Magwood challenged a judicial decision that increased his punishment
from life to death in the sentencing phase of a capital trial. Petitioner attempts to
apply the same rational to the guilt phase of a capital trial and argues that he could
not even be indicted for a capital offense. This argument is counterintuitive to the
holding in Magwood which supported a capital conviction and sentence of life
imprisonment without parole in the absence of an identifiable or corresponding §
13-11-6 aggravating circumstance. See Magwood, 664 F.3d at 1330 (affirming the
district court’s order vacating Magwood’s death sentence but not his conviction).
And although the present case does not deal with the judicial interpretation
of a common law principle that had a tenuous foothold in criminal law like that in
Rogers, it differs from Bouie in three material ways. First, the Bouie students who
conducted “sin-ins” did not have notice “of what the law intended to do” if they
remained after notice was posted: make them subject to prosecution for criminal
trespass. See McBoyle v. United States, 283 U.S. 25, 27 (1931). Here, the 1975 Act
spelled out that the first-degree murder of two or more persons in one or a series of
acts is a capital felony punishable by death or life imprisonment without parole.14
See § 13-11-1 (“the death penalty or life imprisonment without parole shall be fixed
14 This point further distinguishes Petitioner’s case from Magwood, supra.
Before
Kyzer, Billy Joe Magwood did not have notice that the sentencing judge intended to
use the aggravation that elevated his crime to a capital felony as support for a
death sentence.
35
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as punishment only in the cases and in the manner herein enumerated and
described in section 13-11-2”).
Second, in Bouie, the South Carolina legislature had enacted a statute that
mirrored the judicial expansion shortly after the “sit-in” occurred. Bouie, 378 U.S.
at 361. Therefore, it stands to reason that the South Carolina legislature did not
intend the original criminal trespass statute to cover those persons who remained
after notice was posted. Here, the 1981 Act repealed the 1975 Act, and the Alabama
legislature reworded the 1981 Act in 1999. In neither 1981 nor 1999 did the
legislature implement language or clarify that the §13-11-6 aggravating
circumstances to be relied on during a sentencing proceeding must be averred in the
indictment for a defendant to be charged or convicted of a capital felony, much less
sentenced to life imprisonment without parole. In fact, the Alabama legislature
deleted the introductory paragraph of § 13-11-2, which declared that the offense and
aggravation must be averred in the indictment. Section 13-11-2’s corollary in the
1981 Act, § 13A-5-40(a), reads in its entirety as follows: “[t]he following are capital
offenses.” The substance of the capital felonies remained unchanged. Thus, it
appears that all the indictment would have to include is the specific capital felony
alleged violated under the 1981 Act.
Third, “[s]o far as the words of the statute were concerned, [the Bouie]
petitioners were given not only no ‘fair warning,’ but no warning whatever, that
their conduct” would violate the precise language of the statute at issue. Bouie, 378
U.S. at 355. It is under this principle that Petitioner primarily attempts to animate
36
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a Bouie violation with an extensive statutory interpretation argument. See (Doc.
46, pp. 31–41). The premise of his argument is that the plain language of § 13-11-2
of the 1975 Act requires a § 13-11-6 aggravating circumstance to be included in the
indictment because “every word and clause must be given effect.” Id. at 34. Thus,
when the legislature included in § 13-11-2 the phrase “charged by indictment with
any of the following offenses and with aggravation, which must also be averred in
the indictment,” it could mean nothing else but that the § 13-11-6 aggravating
circumstance(s) the state may rely on at sentencing and a judge may include in his
sentencing order must be spelled out in the indictment. Id. Its inclusion is what
makes a defendant “death eligible.” See id. at 29. Based on the absence of such in
his indictment, he argues that he is not “death eligible,” which means that he
cannot be charged with or tried for a capital felony without Kyzer being
retroactively applied. Id. at 32, 41. Petitioner insists that to decide otherwise
would create legal incoherence. Id. at 41. Respondent counters that death
eligibility is not established upon indictment but only after a jury has convicted a
capital defendant and the trial judge has found the presence of a § 13-11-6
aggravating circumstance in a sentencing proceeding. (Doc. 47, p. 13). Therefore,
the 1975 Act did not require a § 13-11-6 aggravating circumstance to be averred in
Petitioner’s indictment to be tried for a capital felony under § 13-11-2. See (Doc. 47,
p. 16).
Several cannons of interpretation guide the Court’s evaluation in this matter.
The rule of lenity directs that “[s]tatutes creating crimes are to be strictly construed
37
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in favor of the accused,” and “the[ ] [statutes] may not apply to cases not covered by
the words used . . . .” United States v. Resnick, 299 U.S. 207, 209 (1937); see also,
Fuller v. Alabama, 60 So. 2d 202, 205 (Ala. 1952). Moreover, “criminal statutes
should not be ‘extended by construction.’” Ex parte Evers, 434 So. 2d at 817
(quoting Locklear v. Alabama, 282 So. 2d 116 (1973). “Because the meaning of
statutory language depends on context, a statute is to be read as a whole.” Ex parte
Jackson, 614 So. 2d 405, 406 (Ala. 1993) (citing King v. St. Vincent’s Hospital, 502
U.S. 215 (1991)).
Keeping these principles in mind, the plain language of the 1975 Act
contemplates that a capital proceeding is to have two parts: the guilt phase, §§ 1311-1–2, and the sentencing phase, §§ 13-11-3–7. In the guilt phase, § 13-11-1
directs that “the death penalty or a life sentence without parole” shall be enforced
only in the manner outlined in § 13-11-2: “when the defendant is charged by
indictment with any of the following offenses and with aggravation, which must
also be averred in the indictment . . . .” Fair-minded jurists could agree that the
1975 Act requires an indictment be made up of two parts: an offense and
aggravation. Petitioner takes a very narrow approach to the term aggravation, but
in doing so he fails to recognize its context in the guilt phase. When § 13-11-2
contemplates two parts to an indictment, it is because each capital felony is made
up of two parts: the intentional killing or first-degree murder (offense) and the
aggravation that elevates the crime to a capital felony. See Horsley v. Alabama, 374
So. 2d 363, 367 (Ala. 1978) (finding § 13-11-2 enacted “for the prevention and
38
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punishment of homicides committed under legislatively determined aggravating
circumstances”), rev’d on other grounds, 100 S. Ct. 3043 (1980). So consideration
must be given to why the phrase “with aggravation” is a necessary part of § 13-11-2
and how it applies to the guilt phase of a capital proceeding, not the sentencing
phase.
On this point, the Alabama Court of Criminal Appeals found in relevant part:
In Alabama, by statute, the aggravating circumstance must be
alleged in the indictment where the death penalty is sought. Title
15, s 424(4), Code of Alabama 1940, Recompiled 1958, 1975 Interim
Supplement, now s 13-11-2, Code of Alabama 1975. The
aggravating circumstances must be set forth in the indictment
because the state is required to give the accused notice that a
greater penalty is sought to be inflicted than for a first offense. . . .
Under the Death Penalty Statute, the aggravating circumstance is
a statutory element of the crime. Without it, one could not be
charged and convicted for “capital murder”. Though the opinion of
the jury is advisory only upon the trial judge (see Jacobs v.
[Alabama], 361 So. 2d 607, 632 (Ala. Crim. App. 1977), the state
must prove the aggravating circumstance and the jury must find
the existence of such, even though the enhanced punishment is left
to be imposed by the trial judge.
Wilson v. Alabama, 371 So. 2d 932, 940–41 (Ala. Crim. App. 1978), vacated on other
grounds, 448 U.S. 903 (1980). And when § 13-11-2 uses the phrase “with
aggravation,” it requires the aggravation as enumerated in § 13-11-2 to be
contained within the indictment, not an aggravating circumstance enumerated in §
13-11-6 and used during sentencing. See Evans v. Alabama, 361 So. 2d 666, 670
(Ala. 1978). In other words, due process requires the state to put the defendant on
notice that a non-capital felony has accompanying aggravation, which subjects the
defendant to trial for a capital felony. Therefore, the aggravation to notice or aver
39
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is that which elevates the non-capital felony to a capital felony. Fair-minded jurists
could agree that such an interpretation of the 1975 Act does not create the legal
incoherence Petitioner insists upon (Doc. 46, p. 39) but is in “conformity with logic
and common sense.” See Rogers, 532 U.S. at 462.
To be sure, the state indicted Petitioner for the violation of § 13-11-2(a)(10):
the first-degree murder of two or more persons by one or a series of acts. (Doc. 9-1,
p. 15). Under the 1975 Act, first-degree murder alone was not a capital felony.
Even more, the first-degree murder of two or more people in unrelated acts was not
a capital felony. In such a case, the most a defendant could face would be two
separate counts of first-degree murder. See ALA. CODE § 13-1-70 (1975). And
neither would be punishable by death or life imprisonment without parole.
However, when one or a series of acts connects the first-degree murder of two or
more people, the Alabama legislature decided that such an act was a capital felony.
Richard Brune and Cheryl Moore were killed in one or a series of acts. Tomlin, 909
So. 2d at 224. At that point, the state had the opportunity to seek capital
punishment. But due process required the state notify Petitioner of its intentions
when it sought to try the crime as a capital felony. Thus, the criminal offense and
aggravation that made the felony capital must be averred in the indictment. And
both the offense and aggravation had to be proven beyond a reasonable doubt in
order to be found guilty. In other words, the state had to prove (1) that two or more
persons were murdered in the first-degree and (2) such was done in one or a series
of acts.
40
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Such an interpretation keeps the reach of § 13-11-2’s words within their
meaning and is supported by each capital felony that contains a first offense of
murder or first-degree murder. See §§ 13-11-2 (a)(5), (6), (7), (10), (11), (12), (13),
and (14). For instance, murder in the first-degree becomes a capital felony and
triable as such “where the victim is a public official” and the murder “stems from . .
. his official position.” § 13-11-2(a)(11). Or murder in the first-degree becomes a
capital felony and triable as such when an aircraft is highjacked with the intent to
obtain valuable consideration for its release and the murder is committed in the
process. § 13-11-2(a)(12). Based on this, fair-minded jurists could agree that the
aggravating circumstances of 13-11-6 are not an element of the crime alleged in §
13-11-2 to be averred in the indictment. Instead, § 13-11-6 circumstances become
relevant in the sentencing phase of the proceeding. See § 13-11-4; see also Jacobs,
361 So. 2d, at 631 (reasoning that the jury fixing the sentence at death was advisory
and at that point the judge weighed the aggravating and mitigating circumstances
before imposing a death sentence). An indictment containing the offense and
aggravation that equaled the capital felony is more than an abstract possibility,
having never once been enforced in Alabama.15 See Rogers, 532 U.S. at 466. It
15 In Bouie, the Court reasoned that “[i]t would be a rare situation in which the
meaning of a statute of another State sufficed to afford a person ‘fair warning’ that
his own State’s statute meant something quite different from what its words said.”
Bouie, 387 U.S. at 359–60. The Court does not presume this to be such a “rare
situation.” But if it were, the popular trend around the time in question would
further undermine Petitioner’s position. See Del. Code. Ann. Tit. 11, 4209 (c) (1979)
(requiring disclosure of aggravating circumstances that support a death sentence
after a verdict of guilt but before the “punishment hearing); S.C. Code § 16-3-20(B)
(Supp. 1980) (same); Tennessee v. Berry, 592 S.W. 2d 553, 562 (Tenn. 1980) (finding
41
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happened each time a defendant was indicted for a capital felony, regardless of
whether there was a corresponding circumstance in § 13-11-6.16 Thus, fair-minded
jurists could agree that the state court’s denial is not contrary to Bouie or that it
unreasonably declined to extend Bouie because the plain langue of the 1975 Act
does not require the application of Kyzer for Petitioner to be indicted or tried for a
capital felony.
that an indictment need not include the enumerated aggravating circumstances
that pertain to sentencing); Dungee v. Hopper, 244 S.E. 2d 849, 850 (Ga. 1978)
(finding “no merit” in a criminal defendant’s contention that due process was
violated because an “indictment failed to specify any statutory aggravating
circumstances”); see also Spenkelink v. Wainwright, 442 U.S. 1301, 1305–06 (1979)
(rejecting the opportunity to grant certiorari on whether a defendant is due “some
sort of formal notice” in an indictment of “the statutorily prescribed aggravating
circumstances” the prosecution intends to rely on for the imposition of a death
sentence).
16 The prior decisions of the relevant state played a role in Bouie and Rogers. As to
prior decisions supporting this interpretation, the present case stands in somewhat
of a temporal irregularity. Although approved on September 9, 1975, the 1975 Act
became effective on March 7, 1976. Ala. Code § 13-11-9 (1975). The law in question
was in effect for only nine months and twenty-seven days when Petitioner
committed the murders he stands convicted of. This is hardly enough time to create
a sufficient body of case law to evaluate the point in question. Moreover, the
differences between the 1975 Act and its predecessors make evaluation of prior case
law futile. Nonetheless, the Court is hard pressed to say that fair-minded jurists
would find such an interpretation “so clearly at variance” with the statute. Bouie,
378 U.S. at 356. In fact, of the decisions announced around this time that this
Court surveyed, all of them viewed the indictment and guilt phase of a capital
proceeding in accordance with the interpretation above. See Horsley v. Alabama,
374 So. 2d 363, 367 (Ala. Crim. App.) (viewing the fourteen capital offenses
enumerated in § 13-11-2 as being made up of homicide with aggravation, rev’d on
other grounds, 448 U.S. 903 (1980); Jacobs v. Alabama, 361 So. 2d 640, 641 (Ala.
1978) (“This case concerns the constitutionality of [the 1975 Act], which provides
penalties for certain aggravated homicides.”); Bester v. Alabama, 362 So. 2d 1282,
1282 (Ala. Crim. App. 1978) (indictment included § 13-11-2 aggravation that
murder was committed while defendant was serving a sentence of life
imprisonment).
42
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Fair-minded jurists could also agree that the rule of lenity precludes
Petitioner’s interpretation. Under Petitioner’s interpretation, the indictment must
include the aggravating circumstance to be used in sentencing regardless of
whether it corresponds to the committed offense. For instance, an indictment would
have to aver that a defendant “was previously convicted of . . . a felony involving the
use or threat of violence” even though it is not an element any capital felony. Such
information goes towards the background, criminal history, or even propensity of a
defendant and has no bearing on guilt. But Petitioner would have this allegation go
back with the jury in the indictment. See Wilson v. Alabama, 296 So. 2d 774, 776
(Ala. Crim. App. 1974) (“It is proper for the indictment to go to the jury room with
the jury.”) Now it is understood that an indictment is not evidence. Id. Further, it
is presumed that a jury follows a judge’s order to such effect. See Perkins v.
Alabama, 808 So. 2d 1041 (Ala. Crim. App. 1999). But to read the 1975 Act to
require prejudicial information in the indictment cannot be said to accord with the
rule of lenity or the Constitution. See Gregg v. Georgia, 428 U.S. 153, 190 (1976)
(“Much of the information that is relevant to the sentencing decision may have no
relevance to the question of guilt, or may even be extremely prejudicial to a fair
determination of that question.”).
Lastly, Petitioner’s position regarding “death eligibility” and that life
imprisonment without parole is only a “discretionary optional downward departure”
fails to overcome the AEDPA standard. See (Doc. 49, pp. 22, 37). Magwood’s
reasoning guides the Court concerning when a defendant becomes “death eligible.”
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Although the 1975 Act requires the jury to fix the penalty at death upon finding a
defendant guilty, this designation of punishment is not final until a judge weighs
the aggravating and mitigating circumstances in a sentencing hearing. Magwood,
664 F.3d at 1348–49. In a sentencing proceeding, a defendant found guilty by a jury
becomes “‘eligible’ for the death penalty” only when at least one § 13-11-6
aggravating circumstance is found to outweigh any § 13-11-7 mitigating
circumstance, which must be articulated in the judge’s written sentencing order.
See id. at 1349. Albeit indirectly, the only punishment the 1975 Act allows a trial
judge to impose for a capital conviction in the absence of an enumerated § 13-11-6
aggravating circumstance is life imprisonment without parole. See § 13-11-4. Such
is the case here. 17 Therefore, fair-minded jurists could agree that the plain
language of the 1975 Act gave Petitioner notice that the minimum sentence he
would face upon conviction is life imprisonment without parole if he was not found
to be “death eligible.”
Additionally, this conclusion is the same if the trifurcated proceeding Beck
17 Additionally, the 6th Amendment violation addressed in Hurst v. Florida, 136 S.
Ct. 616 (2016), is inapplicable in this case. In Hurst and its predecessor, Ring v.
Arizona, 536 U.S. 584 (2002), the defendant faced a sentence of death imposed by a
judge based on aggravating circumstances found independent of a jury’s fact
finding. Here, the Alabama Supreme Court reversed the judge’s sentence of death
and directed the imposition of the jury’s recommended sentence of life
imprisonment without parole. Ex parte Tomlin, 909 So. 2d 283, 287 (Ala. 2003).
Further, Petitioner’s sentence does not rely on facts not found by a jury. Moreover,
it echoes the maximum punishment the Court reasoned a defendant could receive
based on the conviction alone: life imprisonment without parole. See Hurst, 136 S.
Ct. 616, at 622 (“As with Timothy Ring, the maximum punishment Timothy Hurst
could have received without any judge-made findings was life in prison without
parole.”).
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implemented is applied, which was the case in the trial below. Beck empowered the
jury with the ability to recommend the lesser sentence of life imprisonment without
parole at a sentencing hearing. Beck, 396 So. 2d at 660. Here, the jury
unanimously recommended the sentence of life imprisonment without parole. (Doc.
10-1, pp. 64–65). The application of Beck was not contrary to or an unreasonable
refusal to extend Bouie because its procedural changes only “altered the methods
employed in determining whether the death penalty was to be imposed; there was
no change in the quantum of punishment attached to the crime.” Dobbert v.
Florida, 432 U.S. 282, 293–94 (1977).
Therefore, fair-minded jurists could agree that the state court’s denial of
relief based on the due process right to fair warning is neither contrary to or an
unreasonable refusal to extend clearly established Federal law to Petitioner’s claim.
See Loggins v. Thomas, 654 F.3d 1204, 1220 (11th Cir. 2011).
For all the foregoing reasons, Tomlin’s Petition under 25 U.S.C. § 2254 for
Writ of Habeas Corpus by Person in State Custody is DENIED.
DONE and ORDERED this 19th day of April, 2018.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE
45
46
Appendix B
47
Case 1:10-cv-00120-CG-B Document 61 Filed 02/04/19 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
PHILLIP WAYNE TOMLIN,
Petitioner,
vs.
TONY PATTERSON, Warden,
Holman Correctional Facility,
Respondent.
)
)
)
)
)
) CIVIL ACTION NO. 10-120-CG-B
)
)
)
)
)
ORDER
This case is before the Court on Petitioner Phillip Wayne Tomlin’s
(“Petitioner”) motion to reconsider pursuant to FED. R. CIV. P. 59 and 60. (Doc. 55).
For the reasons explained below, the Court finds it does not have jurisdiction to
consider Petitioner’s motion to reconsider. Accordingly, Petitioner’s motion will be
dismissed.
I. Procedural Background
Petitioner’s original habeas corpus petition raised thirty claims challenging
his conviction and sentence for the murder of two people on January 2, 1977. (Doc.
1). This Court previously denied Petitioner habeas relief (Doc. 32) but failed to take
into account Petitioner’s motion to supplement claim number 30 in light of
Magwood v. Warden, Ala. Dept. of Corrections, 664 F.3d 1340 (2011). (Doc. 22).
Petitioner appealed, and the Eleventh Circuit Court of Appeals vacated this Court’s
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order without prejudice to resolve the issues Petitioner raised in Claim 30. (Doc.
40). The Court of Appeals specifically directed this Court “to (1) determine whether
the ex post facto issues raised in Tomlin’s § 2254 reply brief were properly before
the judge; (2) if so, decide those issues; (3) issue a decision on Tomlin’s motion to
supplement his § 2254 petition; and (4) if the judge grants that motion, decide the
ex post facto and due process, fair warning claims raised in Tomlin’s proposed
supplement.” (Doc. 40, pp. 5–6). On remand, this Court granted Petitioner’s Motion
for Supplemental Pleading but denied Petitioner’s habeas corpus petition as to his
ex post facto and due process, fair-warning claim. Petitioner’s current motion seeks
reconsideration of his claim pursuant to Rules 59(e) and 60(b).
II. Analysis
Before the Court can address the merits of Petitioner’s motion, the Court
must determine whether it has jurisdiction to consider the motion at all. See Cadet
v. Bulger, 377 F.3d 1173, 1179 (11th Cir. 2004) (Federal courts are “obligated to
inquire into subject-matter jurisdiction sua sponte whenever it may be lacking.”).
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) was enacted
to ensure greater finality of state and federal court judgments in criminal cases. To
that end, AEDPA greatly restricts the filing of second or successive petitions for
relief under § 2254 or § 2255. See Farris v. United States, 333 F.3d 1211, 1216 (11th
Cir. 2003) (without appellate authorization, district court lacks jurisdiction to
consider a second or successive petition); 28 U.S.C. § 2244(b)(3)(A). In the § 2254
and § 2255 context, the Court must be wary of an unauthorized attempt at a second
2
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or successive petition disguised as a Rule 59(e) or 60(b) motion. The Eleventh
Circuit has held that a Rule 60(b) motion is foreclosed if it (1) “seeks to add a new
ground of relief;” or (2) “attacks the federal court's previous resolution of a claim on
the merits.” Williams v. Chatman, 510 F.3d 1290, 1293–94 (11th Cir. 2007) (citing
Gonzalez v. Crosby, 545 U.S. 524, 532 (2005)). The use of the term “on the merits” is
explained as follows:
We refer here to a determination that there exist or do not exist
grounds entitling a petitioner to habeas corpus relief under 28 U.S.C. §
2254(a) and (b). When a movant asserts one of those grounds (or
asserts that a previous ruling regarding one of those grounds was in
error) he is making a habeas corpus claim. He is not doing so when he
merely asserts that a previous ruling which precluded a merits
determination was in error—for example, a denial for such reasons as
failure to exhaust, procedural default, or statute-of-limitations bar.
Williams, 510 F.3d at 1294 (quoting Gonzalez, 545 U.S. 524 at 532 n. 4). The
Eleventh Circuit specifically addressed Rule 60(b) motions in Williams v. Chatman,
but “the Southern District of Alabama has held that the ‘jurisdictional prohibition
on Rule 60(b) motions in the habeas context applies with equal force to Rule 59(e)
motions.’” Williams v. United States, 2017 WL 3613042, at *2 (S.D. Ala. Aug. 22,
2017) (quoting Aird v. United States, 339 F.Supp.2d 1305, 1311 (S.D. Ala. 2004)).
Petitioner’s grounds for reconsideration are that this Court was clearly
erroneous in its interpretation of the 1975 Alabama Death Penalty Act and the
Court failed to address whether the state court’s decision is contrary to Rogers v.
Tennessee, 532 U.S. 451 (2001). Petitioner contends that the Court should interpret
the statute to prohibit punishment of life imprisonment without parole in his case
and that if the Court properly followed the Rogers standard it would conclude that
3
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Petitioner was entitled to relief. These arguments clearly go to the merits of
Petitioner’s ex post facto and due process, fair warning claim. Accordingly, this
Court lacks jurisdiction to consider Petitioner’s Rule 59(e) and 60(b) motion.
CONCLUSION
For the foregoing reasons, Petitioner’s motion to reconsider pursuant to FED.
R. CIV. P. 59 and 60 (Doc. 55), is DISMISSED.
DONE and ORDERED this 4th day of February, 2019.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE
4
51
Appendix C
52
Case 1:10-cv-00120-CG-B Document 69 Filed 03/08/19 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
PHILLIP WAYNE TOMLIN,
Petitioner,
vs.
TONY PATTERSON, Warden,
Holman Correctional Facility,
Respondent.
)
)
)
)
)
) CIVIL ACTION NO. 10-120-CG-B
)
)
)
)
)
ORDER
This case is before the Court on the motion of Petitioner Phillip Wayne
Tomlin (“Petitioner”) for leave to proceed on appeal in forma pauperis, pursuant to
28 U.S.C. § 2250 and Rule 3 of the rules Governing § 2254 Proceedings in the
United States District Courts. (Doc. 65). To appeal a district court’s final order in a
proceeding brought under 28 U.S.C. § 2254, a petitioner must first obtain a
certificate of appealability. See 28 U.S.C. § 2253(c)(1); FED. R. APP. P. 22(b). Such a
certificate may be issued “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
[I]n order to make a substantial showing of the denial of a federal right
a petitioner who has been denied relief in a district court “‘must
demonstrate that the issues are debatable among jurists of reason;
that a court could resolve the issues [in a different manner]; or that the
questions are ‘adequate to deserve encouragement to proceed further.’”
Lozada v. Deeds, 498 U.S. 430, 432 (1991) (emphasis in original) (quoting Barefoot
v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
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Additionally, “[a]n appeal may not be taken in forma pauperis if the trial
court certifies in writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3).
Whether an appeal is taken in good faith is a matter within the discretion of the
trial court. See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331 (1948). In
deciding whether an in forma pauperis appeal is frivolous the district court
determines whether there is "a factual and legal basis, of constitutional dimension,
for the asserted wrong, however inartfully pleaded." Sun v. Forrester, 939 F.2d 924,
925 (11th Cir.1991), (quoting Watson v. Ault, 525 F.2d 886, 892 (5th Cir.1976)).
Petitioner asserts that he has been declared indigent and has proceeded in
forma pauperis in all of the prior state and federal court proceedings in this case
since 1978. (Doc. 65, p. 2). However, “[a] prisoner who seeks to proceed IFP on
appeal must obtain leave to so proceed despite proceeding IFP in the district court.”
Jeffery v. Walker, 113 F.3d 527, 528 (5th Cir. 1997) (citing Jackson, 102 F.3d at
136).
The plaintiff has not stated the basis for his appeal and has not presented
any arguments other than those asserted in his original case. Federal Rule of
Appellate Procedure 24 mandates that a party who desires to appeal in forma
pauperis must file a motion in the district court that “states the issues that the
party intends to present on appeal.” FED. R. APP. P. 24(a)(1)(C). "A plaintiff who has
been told that the claim is foreclosed and then files a notice of appeal without
offering any argument to undermine the district court's conclusion is acting in bad
2
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faith." Newlin v. Helman, 123 F.3d 429, 433 (7th Cir.1997); see also Neitzke v.
Williams, 490 U.S. 319, 327 (1989) (a claim is frivolous if the factual contentions
supporting it are clearly baseless, or if it relies on an indisputably meritless legal
theory). The Court presumes that Petitioner seeks to appeal for the reasons
previously stated in his case and in his motion to reconsider the judgment. After
reviewing the record in this case, the Court concludes that Petitioner has failed to
make a nonfrivolous argument for relief substantially for the reasons set forth in
this Court’s order denying habeas corpus relief. (Doc. 53). The Court finds that the
Petitioner has not demonstrated that the issues in this action are debatable among
jurists of reason, that a Court could resolve these issues in a different manner, or
that they deserve encouragement to proceed further. The Court certifies that the
appeal is not taken in good faith and finds that Petitioner is neither entitled to a
Certificate of Appealability nor to appeal in forma pauperis. Accordingly, plaintiff's
motion to proceed in forma pauperis (Doc. 65), is DENIED.
DONE and ORDERED this 8th day of March, 2019.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE
3
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Appendix D
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05/08/2019
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Appendix E
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No. 19-10494-HH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
__________________________________________
PHILLIP WAYNE TOMLIN,
Petitioner-Appellant,
v.
TONY PATTERSON,
Warden, Holman Correctional Facility,
Respondent-Appellee.
__________________________________________
MOTION FOR RECONSIDERATION
OF THE DENIAL OF A CERTIFICATE OF APPEALABILITY
__________________________________________
Case below: Civil Action 1:10-cv-00120-CG-B
BERNARD E. HARCOURT
COLUMBIA LAW SCHOOL
Jerome Green Hall 603
435 West 116th Street
New York, New York 10027
Phone: (212) 854-1997
Email: beh2139@columbia.edu
June 17, 2019
Counsel for Phillip Tomlin
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No. 19-10494-HH
Tomlin v. Patterson
CERTIFICATE OF INTERESTED PERSONS
Pursuant to Fed. R. App. P. 26.1 and 11th Cir. R. 26.1-1, undersigned
counsel certifies that the following persons may have an interest in the outcome of
this appeal:
Alexander and Knizley – former Law Firm for Petitioner-Appellant;
Alexander, Richard – former Counsel for Petitioner-Appellant;
Allen, Richard – former Commissioner of the Alabama Department of
Corrections;
Brasher, Andrew – Solicitor General of the State of Alabama;
Bivins, Sonja F. – United States Magistrate Judge;
Bjurberg, P. David – Assistant Attorney General;
Carnes, Ed – former Deputy Attorney General and U.S. Circuit Court Judge;
Daniel, Tracy – former Assistant Attorney General;
Deason, Kristi – former Assistant Attorney General;
Evans, James – former Alabama Attorney General;
Forrester, Nathan – former Deputy Attorney General;
Graddick, Charles – former Alabama Attorney General;
C-1 of 3
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Granade, Callie V. S. – United States District Court Judge;
Harcourt, Bernard E. – Counsel for Petitioner-Appellant;
Houts, James – former Assistant Attorney General;
Hughes, W. Gregory – former Counsel for Petitioner-Appellant;
King, Troy – former Alabama Attorney General;
Lackey, James – former Counsel for Petitioner-Appellant;
Madden, Arthur – former Counsel for Petitioner-Appellant;
Marston, Joseph III – former Assistant Attorney General;
McDermott, Edward – Mobile County Circuit Court Judge;
McRae, Ferrill – Mobile County Circuit Court Judge;
Milling, Bert – United States Magistrate Judge;
Poe, Beth – former Assistant Attorney General;
Poole, Andy Scott – Assistant Attorney General;
Pryor, William – former Alabama Attorney General and U.S. Circuit Court
Judge;
Sessions, Jeff – former Alabama Attorney General;
Shows, Stephen – former Assistant Attorney General;
Siegelman, Don – former Alabama Attorney General;
Stewart, Sandra – former Assistant Attorney General;
C-2 of 3
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Strange, Luther – Alabama Attorney General;
Thomas, Herman – Mobile County Circuit Court Judge;
Thomas, Kim – Commissioner, Alabama Department of Corrections;
Tomlin, Phillip – Petitioner-Appellant;
Valeska, Don – Former Assistant Attorney General.
C-3 of 3
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TABLE OF CONTENTS
Page
Certificate of Interested Persons .......................................................... 1
Table of Contents .................................................................................. i
Table of Authorities ............................................................................ iii
Preliminary Statement .......................................................................... 2
Standard of Review .............................................................................. 4
Summary of the Argument ................................................................... 5
Argument.............................................................................................. 8
I.The History of the 1975 Alabama Death Penalty Act and Its
Judicial Interpretations ................................................................... 8
II.
Mr. Tomlin Is Entitled To A Certificate of Appealability
Because Reasonable Jurists Could Debate Whether His Claim of
Retroactivity Entitles Him To Relief ........................................... 25
1. The Plain Words of the 1975 Act ......................................... 30
2. The Structure of the 1975 Act .............................................. 33
3. The Need to Avoid Legal Incoherence................................. 35
III. Reasonable Jurists Could Debate Whether The District Court
Incorrectly Applied Harrington v. Richter to an Explained, But
Erroneous, State Court Decision. ................................................. 37
Conclusion.......................................................................................... 45
i
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Certificate of Compliance .................................................................. 46
Certificate of Service.......................................................................... 47
ii
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TABLE OF AUTHORITIES
Page
Cases
Age-Herald Publ’g Co. v. Huddleston,
92 So. 193 (Ala. 1921).................................32
Anderson v. City of Birmingham,
88 So. 900 (Ala. 1921).................................32
Barnes v. Sec’y, Dep’t of,
888 F.3d 1148 (11th Cir. 2018)...........................43
Beck v. Alabama,
447 U.S. 625 (1980)................................13, 16
Beck v. State,
396 So. 2d 645 (Ala. 1981)...........................Passim
Bell v. Cone,
535 U.S. 685 (2002).................................. 43
Bouie v. City of Columbia,
378 U.S. 347 (1964)...............................Passim
Buck v. Davis,
137 S. Ct. 759 (2017).................................
4
Carroll v. Ala. Pub. Serv. Comm’n,
206 So. 2d 364 (Ala. 1968)...........................
31
Childers v. Floyd,
642 F.3d 953 (11th Cir. 2011)............................43
iii
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TABLE OF AUTHORITIES
(cont’d)
Page
Cases (cont’d)
Early v. Packer,
537 U.S. 3 (2002) ...............................
43
Ex parte Hays,
518 So. 2d 768 (Ala. 1986).......................19, 20, 21, 22
Ex parte Kyzer,
399 So.2d 330 (Ala. 1981)...........................Passim
Ex parte Stephens,
982 So. 2d 1148 (Ala. 2006)..........................Passim
Ex parte Tomlin,
909 So. 2d 283 (Ala. 2003).........................
22
Fuller v. State,
60 So. 2d 202 (Ala. 1952)...............................32
Furman v. Georgia,
408 U.S. 238 (1972).................................. 8
Godfrey v. Georgia,
446 U.S. 420 (1980).................................. 15
Harrington v. Richter,
562 U.S. 88 (2011)..............................37, 38, 42
Hodges v. Attorney Gen., State of Fla.,
506 F.3d 1337 (11th Cir. 2007)............................1
iv
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TABLE OF AUTHORITIES
(cont’d)
Page
Cases (cont’d)
Jacobs v. State,
361 So. 2d 607 (Ala. Crim. App. July 26, 1977)................15
Locklear v. State,
282 So. 2d 116 (Ala. Crim. App. 1973)......................32
Lott v. Att’y Gen. of Fla.,
594 F.3d 1296 (11th Cir. 2010)........................... 4
Magwood v. Warden, Alabama Department of Corrections,
664 F.3d 1340 (11th Cir. 2011)........................Passim
Miller-El v. Cockrell,
537 U.S. 322 (2003)..................................4, 5
Munnerlyn v. Alabama Dep’t of Corr.,
946 So. 2d 436 (Ala. 2006)..............................23
Porter v. McCollum,
558 U.S. 30 (2009)...................................41
Rogers v. Tennessee,
532 U.S. 451 (2001) ...........................27, 38, 40, 44
Rompilla v. Beard,
545 U.S. 374 (2005).................................. 41
Slack v. McDaniel,
529 U.S. 473 (2000)................................
v
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TABLE OF AUTHORITIES
(cont’d)
Page
Cases (cont’d)
Wiggins v. Smith,
539 U.S. 510 (2003).................................. 41
Wilson v. Sellers,
138 S. Ct. 1188 (2018)..............................38, 41
Woodson v. North Carolina,
428 U.S. 280 (1976)................................16, 17
vi
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MOTION FOR RECONSIDERATION
OF THE DENIAL OF A CERTIFICATE OF APPEALABILITY
Phillip Wayne Tomlin has been incarcerated now for forty-one years,
since 1978, at Holman Prison in Alabama—first, on Death Row at Holman
for twenty-six years, from 1978 to 2004, and then, since 2004, in general
population at Holman. Mr. Tomlin is now serving a sentence of life
imprisonment without parole (“LWOP”). Tomlin seeks appellate review of
the denial of his habeas corpus petition, which challenged his sentence as an
improper retroactive judicial reinterpretation of the 1975 Alabama Death
Penalty Act in violation of his right to fair notice protected by the Due
Process Clause of the United States Constitution.
In an order dated May 8, 2019, this Court denied Phillip Tomlin a
Certificate of Appealability (“COA”). Tomlin v. Patterson, No. 19-10494,
Order dated May 8, 2019 (Appendix M). Pursuant to 11th Circuit Rules 221(c) and 27-1(d), and this Court’s decision in Hodges v. Attorney Gen., State
of Fla., 506 F.3d 1337, 1339 (11th Cir. 2007), Mr. Tomlin respectfully
requests panel reconsideration and the grant of a COA limited to one
question:
Whether the final state court judgment in Tomlin’s case,
upholding his LWOP sentence under the 1975 Alabama Death
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Penalty Act, violated Tomlin’s right to fair notice under the
Due Process Clause of the Fourteenth Amendment of the
United States Constitution.
PRELIMINARY STATEMENT
Phillip Tomlin’s retroactivity challenge is practically identical to the
legal claim considered and upheld by this Court in Magwood v. Warden,
Alabama Department of Corrections, 664 F.3d 1340 (11th Cir. 2011), in
which this Court ruled that the petitioner’s sentence rested on an improper
retroactive judicial reinterpretation of the 1975 Alabama Death Penalty Act,
Ala. Code. §§ 13-11-1 et seq. (hereinafter “the 1975 Act,” see Appendix A).
In Magwood, 664 F.3d at 1348, this Court declared that the Alabama
Supreme Court’s judicial decision in Ex parte Kyzer, 399 So.2d 330 (Ala.
1981), rewriting the 1975 Act, was “unexpected and indefensible,” and that
the retroactivity violation constituted an unreasonable application of clearly
established federal law as determined by the Supreme Court, under the
AEDPA. Tomlin raised the identical legal claim in practically the identical
factual context, and nevertheless received a merits denial by the District
Court. See Tomlin v. Patterson, 1:10-cv-00120-CG-B, Order dated April 19,
2018 (Appendix L). His legal claim is not procedurally barred. The
extension of Magwood to Phillip Tomlin’s case—which is one smidgeon
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away, factually—is clearly a close legal question that jurists of reason could
debate.
This Court’s retroactivity analysis in Magwood is identical to what
would apply in Tomlin’s case—in terms of the unexpected and indefensible
retroactive judicial rewriting of the same statute, the 1975 Act. The only
factual difference is that the petitioner in Magwood was sentenced to death,
whereas Tomlin was sentenced to LWOP. However, both were sentenced
under the very same judicial reinterpretation of the same death penalty
statute—namely, the 1975 Act. Under the 1975 Act, there were only two
possible sentences: death or LWOP. The logic of this Court’s decision in
Magwood clearly extends to the only other possible sentence under the 1975
Act: LWOP. Because the two cases are so close—practically identical—
reasonable jurors could debate whether Tomlin is entitled to the same relief
on his retroactivity claim regarding the same statute and the same
unconstitutional judicial reinterpretation of that statute.
In denying Phillip Tomlin a COA, this Court essentially evaluated
Tomlin’s claims on the merits, rather than determining whether reasonable
jurists could debate whether he is entitled to relief. The Court did not apply
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the proper legal standard, which the United States recently reiterated in Buck
v. Davis:
The COA inquiry, we have emphasized, is not coextensive with
a merits analysis. At the COA stage, the only question is
whether the applicant has shown that “jurists of reason could
disagree with the district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” […] A
“court of appeals should limit its examination [at the COA
stage] to a threshold inquiry into the underlying merit of [the]
claims,” and ask “only if the District Court’s decision was
debatable.”
137 S. Ct. 759, 773-74 (2017) (citations omitted).
This Court went beyond the “threshold question” of appealability, id.,
when it denied Tomlin a COA. Here, as in Buck, the Court’s decision should
be overturned and a COA should be granted on the one legal issue raised on
appeal. Id. at 780.
STANDARD OF REVIEW
When a District Court denies a habeas corpus claim on the merits, the
petitioner is entitled to a COA if he can show that “reasonable jurists could
debate whether […] the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement
to proceed further.” Lott v. Att’y Gen. of Fla., 594 F.3d 1296, 1301 (11th
Cir. 2010) (quoting Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)).
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Under binding Supreme Court precedent, the petitioner’s burden is
light. A court should issue a COA where “reasonable jurists would find the
district court’s assessment of the constitutional claims debatable.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). The Supreme Court has held that a
petitioner is not required “to prove, before the issuance of a COA, that some
jurists would grant the petition for habeas corpus.” Miller-El v. Cockrell,
537 U.S. 322, 338 (2003). “The question is the debatability of the underlying
constitutional claim, not the resolution of that debate.” Id. at 342. The
Supreme Court has observed that “a claim can be debatable even though
every jurist of reason might agree, after the COA has been granted and the
case has received full consideration, that petitioner will not prevail.” Id. at
338.
SUMMARY OF THE ARGUMENT
Phillip Tomlin’s case is the companion case to this Court’s decision in
Magwood v. Warden, 664 F.3d 1340 (11th Cir. 2011), in which this Court
ruled that the Alabama Supreme Court improperly rewrote the 1975 Act in
its decision of Ex parte Kyzer, 399 So.2d 330 (Ala. 1981), in violation of the
fair notice requirement of Due Process. As the Alabama Supreme Court
itself held in Ex parte Stephens, 982 So. 2d 1148 (2006), and as this Court
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emphasized in Magwood, the Alabama Supreme Court’s judicial
reinterpretation was “unexpected and indefensible” and violated Magwood’s
right to fair notice under Bouie v. City of Columbia, 378 U.S. 347, 354
(1964) and the Due Process Clause of the United States Constitution. This
Court further held in Magwood that the constitutional error violated clearly
established federal law as determined by the U.S. Supreme Court, thus
satisfying the stringent requirements of the AEDPA. This Court therefore
granted Magwood habeas corpus relief.
Phillip Tomlin’s case is the direct companion case to Magwood
because he, too, was charged and sentenced under the same 1975 Act as
rewritten by the Alabama Supreme Court in Kyzer. The only difference—
which does not affect the legal analysis—is that Tomlin was sentenced to the
only other possible sentence under the 1975 Act, namely LWOP. But that is
a difference without legal consequence because the same fatal error plagues
his sentence: the unconstitutional retroactive reinterpretation and application
of the 1975 Act.
Phillip Tomlin is entitled to the same relief as the petitioner in
Magwood—at the very least, reasonable jurists could debate whether this
Court’s decision in Magwood extends to Tomlin’s situation. The reason is
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simple: At the time of the charged offense, in January 1977, Tomlin was not
death eligible and so could not be charged with a “capital offense” under the
1975 Act—which was the only way under Alabama law that he could be
sentenced to death or LWOP. As a result, Tomlin could only have been
indicted for two counts of murder under the ordinary homicide statute (firstdegree murder under § 13-1-70, see Appendix G), with a maximum sentence
of two life sentences with the possibility of parole. It was only four years
later, in April 1981, that Tomlin became death eligible, as a result of the
Alabama Supreme Court rewriting the statute in Ex parte Kyzer, 399 So. 2d
330 (Ala. 1981) and Beck v. State, 396 So. 2d 645 (Ala. 1981)—two
decisions that judicially expanded the scope of the 1975 Act. Since then, the
Alabama Supreme Court has itself expressly stated that its opinions in Kyzer
and Beck were an “unexpected and indefensible” judicial expansion of the
1975 Act, see Ex parte Stephens, 982 So. 2d 1148 (Ala. 2006); and this
Court in Magwood held that the retroactivity violation is enforceable under
the AEDPA as clearly established federal law determined by the Supreme
Court. This Court’s decision in Magwood entitles Mr. Tomlin to relief as
well, but at the very least, it entitles him to a COA given that reasonable
jurists could surely debate the legal question at length and extensively.
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ARGUMENT
The legal issue at the heart of this motion for reconsideration is
whether the Alabama Supreme Court unexpectedly and indefensibly rewrote
the 1975 Act in such a way as to make Tomlin eligible to be sentenced to
death or LWOP. This legal question is intricate, in large part because of
nearly forty years of judicial reinterpretation of the 1975 Act. In order to
understand the legal question, it is essential to begin with this forty-year
history of judicial reinterpretations of the 1975 Act.
I.
THE HISTORY OF THE 1975 ALABAMA DEATH PENALTY ACT AND ITS
JUDICIAL INTERPRETATIONS
On September 9, 1975, in response to the United States Supreme
Court’s decision striking down capital punishment in Furman v. Georgia,
408 U.S. 238 (1972), the Alabama state legislature enacted the 1975
Alabama Death Penalty Act, §§ 13-11-1 et seq. (“the 1975 Act,” see
Appendix A).1
1
The 1975 Act was codified in two different places, due to Alabama
implementing a revised criminal code in 1978 that removed nearly all of
Title 13 from the Alabama Code of 1975 and created Title 13A. See
Appendix B (1978 Transfer Statute). The general practice has been to cite to
the Title 13 codification.
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As written, the 1975 Act—which is still in effect today for crimes
committed before July 1, 1981, and thus still applies to Tomlin—requires a
mandatory jury verdict of death upon a conviction of capital murder, but
allows the sentencing court to depart downward from the jury’s mandatory
verdict of death and impose an LWOP sentence. After a jury returns a
mandatory death sentence, the sentencing court must conduct a sentencing
hearing pursuant to § 13-11-3 and 4, weigh the aggravated circumstance(s)
listed in § 13-11-6 against the mitigating circumstance(s) listed in § 13-11-7,
and decide whether to impose the jury’s verdict of death or depart downward
and sentence the defendant to LWOP. The sentencing court can only
sentence the defendant to death if it finds the existence of one or more
aggravated circumstances under §13-11-6.
Because there was a mandatory jury verdict of death upon conviction,
only capital defendants who could be sentenced to death were subject to
prosecution under the 1975 Act as written. A provision in § 13-11-2
guaranteed this by requiring the prosecution to “aver[] in the indictment” not
only the capital offense charged under §13-11-2, but “also” the aggravated
circumstance in §13-11-6 that would allow the sentencing court to impose a
death sentence. In other words, the statute required the prosecution to state,
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up front, in the indictment, the grounds that a sentencing court might have to
sentence a capital defendant to death, so that a grand jury could determine
whether the case included an aggravated circumstance and thus whether the
case should proceed—if the defendant were found guilty—to a mandatory
jury verdict of death.
A. The Requirements of the 1975 Act
Under the 1975 Act, the sentencing court imposed the final sentence
and had the possibility of a discretionary downward departure after the
mandatory jury death verdict. In order to ensure that the sentencing court
would have an aggravated circumstance to consider at sentencing, the 1975
Act required the prosecution to aver in the indictment, and thus present to
the grand jury, at least one aggravating circumstance. The 1975 Act
explicitly stated:
Section 2. If the jury finds the Defendant guilty, they shall fix
the punishment at death when the Defendant is charged by
indictment with any of the following offenses and with
aggravation which must also be averred in the indictment, and
which offenses so charged with said aggravation shall not
include any lesser offenses: [list of 14 capital offenses]
§ 13-11-2 (emphasis added).
The use of the words “and” and “also” make clear that the statute was
referring here not merely to the aggravated offense listed in § 13-11-2 (that,
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naturally, had to be averred in the indictment), but to an aggravated
circumstance from § 13-11-6 that could be the basis for a death sentence by
the court.
The 1975 Act contains a list of fourteen (14) capital offenses in § 1311-2, which includes double intentional murder under provision § 13-112(10). However, the 1975 Act contains a list of only eight (8) aggravating
circumstances in § 13-11-6 for the court to consider at sentencing. That list
of eight (8) aggravated circumstances does not include double intentional
murder.
The fact that the list of eight (8) aggravated circumstances does not
include double intentional murder is key to this dispute. The statute was
intentionally written to contain some different capital offenses from
aggravated circumstances, and some different aggravated circumstances
from capital offenses, as evidenced by the following table of
correspondences. In this table, the italicized entries represent either
aggravated offenses that were not included as aggravated circumstances, or
aggravated circumstances that were not included as aggravated offenses; the
gray entries represent overlap in aggravated offenses and aggravated
circumstances:
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§ 13-11-2
aggravated offenses
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§ 13-11-6
aggravated circumstances
Kidnapping for ransom [2(a)]
Robbery [2(b)]
Kidnapping for ransom [6(d)]
Robbery [6(d)]
Rape [2(c)]
Rape [6(d)]
Carnal knowledge or abuse a girl
younger than 12 [2(c)]
Nighttime burglary of occupied
dwelling [2(d)]
Victim is law enforcement official or
on-duty corrections officer [2(e)]
Victim is off-duty corrections officer
and murder is related to some official
job-related act or performance [2(e)]
Offender is serving a life sentence at
time of offense [2(f)]
Pecuniary gain/murder for hire [2(g)]
Indecent molestation of child under 16
[2(h)]
Willful use of explosives [2(i)]
Multiple victims [2(j)]
Victim is public official or public figure
and killing related to status as public
official or figure [2(k)]
Airplane hijacking [2(l)]
Prior conviction of first or seconddegree murder in previous 20 years
[2(m)]
Victim is witness in trial and killing is
intended to prevent witness from
testifying [2(n)]
Burglary [6(d)]
Offender is serving any sentence of
imprisonment [6(a)]
Pecuniary gain [6(f)]
Prior conviction for felony involving
use or threat of violence to the person
[6(b)]
Disruption or hindrance of lawful
governmental
function/law
enforcement [6(g)]
Serving
any
sentence
imprisonment [6(a)]
12
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Prior conviction of felony involving
use or threat of violence to the
person [6(b)]
Knowingly created a great risk of
death to many persons [6(c)]
Attempting to avoid arrest or escape
from custody [6(e)]
Heinous, atrocious, and cruel (6[h])
The 1975 Act defined capital offenses and aggravated circumstances
separately and, in many cases, differently. It was not a mistake that certain
aggravated
offenses
were
not
in
and
of
themselves
aggravated
circumstances; and vice versa. It was no mere inadvertence. In fact, when
the Alabama legislature rewrote the Alabama death penalty law in 1981 after
the United States Supreme Court’s decision in Beck v. Alabama, 447 U.S.
625 (1980), the legislature again intentionally did not include double
intentional murder as an aggravated circumstance for sentencing
consideration. That aggravated circumstance was only added by the
legislature eighteen (18) years later in 1999.
What is clear from the 1975 Act is that, in order for anyone to be
subject to the statute, there had to exist at least one aggravated circumstance
under § 13-11-6 so that, if the jury could return its mandatory verdict of
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death, the sentencing court could possibly impose death after a hearing and
having found, under § 13-11-6, at least one aggravated circumstance.
B.
The First Capital Trial of Phillip Tomlin in 1978
On January 2, 1977, Richard Brune and Cheryl Moore were fatally
shot in Mobile County, Alabama. Two years earlier, Richard Brune had
fatally shot David Tomlin (Phillip Tomlin’s younger brother), and so
suspicion fell on Tomlin. On September 22, 1977, Phillip Tomlin was
indicted by a grand jury of Mobile County for double intentional murder
under the 1975 Act. See Appendix C.
The 1977 indictment carried three counts, including a murder for hire
count for which Tomlin was acquitted. For purposes here, the third count
was the relevant count and it provided:
3.
The Grand Jury of said County further charge, that,
before the finding of this indictment, PHILLIP WAYNE
TOMLIN, did unlawfully, intentionally, and with malice
aforethought kill Richard Brune and Cheryl Moore, by shooting
them with a gun, wherein both Richard Brune and Cheryl
Moore were intentionally killed by PHILLIP WAYNE
TOMLIN by one or a series of acts, in violation of Act Number
213, Section 2, Sub-Section J (Act #213, § 2(j)) and Act
Number 213, Section 6, Sub-Section H (Act #213, § 6(h)) Acts
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of Alabama, Regular Session, 1975, in that said killings were
especially heinous, atrocious or cruel.2
As is clear from this count of the indictment, the State of Alabama
understood and interpreted the 1975 Act as requiring that the aggravated
circumstance—in addition to the capital offense—be “averred” in the
indictment and considered by the grand jury. That is why the indictment
averred the aggravated circumstance in the indictment, stating specifically:
“that said killings were especially heinous, atrocious or cruel.” See
Appendix C.
The aggravated circumstance averred in the indictment was the
“heinous, atrocious and cruel” (“HAC”) aggravator, which, already by the
time of the indictment in September 1977, had been deemed to be
inapplicable to a case like Tomlin’s. See Jacobs v. State, 361 So. 2d 607,
630 (Ala. Crim. App. July 26, 1977); and Godfrey v. Georgia, 446 U.S. 420
(1980). There is no dispute that the HAC aggravator does not apply in
Tomlin’s case and should not have been alleged in the indictment or ever
2
§ 13-11-2(10) was called 2(j) in the original legislation; and § 13-116(8) was called 6(h). These refer to the capital offense of double intentional
murder and the aggravated circumstance of “heinous, atrocious or cruel”
respectively.
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used at trial. There is no dispute in this case that there is no aggravated
circumstance that applies to Tomlin under the 1975 Act.
Mr. Tomlin was tried in Mobile County, and, in March 1978, was
convicted of double intentional murder under § 13-11-2(10). The jury
returned the mandatory sentence of death as required by the 1975 Act. The
sentencing hearing was conducted in November 1978. The sentencing court,
Judge Ferrill McRae, sentenced Tomlin to death on December 8, 1978.
C.
United States Supreme Court Review of the 1975 Act
On June 20, 1980, the United States Supreme Court declared the 1975
Act unconstitutional on the ground that the preclusion clause included in the
1975 Act (which precluded the jury from considering lesser-included
offenses) violated the Due Process Clause. See Beck v. Alabama, 447 U.S.
625 (1980). In another case involving North Carolina’s mandatory death
penalty scheme, Woodson v. North Carolina, 428 U.S. 280 (1976), the
Supreme Court struck down capital statutes that involved mandatory death
verdicts.
The negative implication of Woodson regarding the mandatory jury
verdict of death in the 1975 Act was clear; however, the United States
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Supreme Court did not address the mandatory jury death verdict because the
issue was not raised by the parties.
D.
Alabama Supreme Court Judicially Rewrites the 1975 Act
On March 6, 1981, on remand from the United States Supreme Court,
the Alabama Supreme Court severed the preclusion clause—precluding
lesser-included offenses—from the 1975 Act. Beck v. State, 396 So. 2d 645,
655 (Ala. 1981).
In that same decision, the Alabama Supreme Court also held the
mandatory jury verdict unconstitutional, in light of Woodson. However, the
Alabama Supreme Court was unwilling to and did not sever the jury
participation clause from the statute. Instead, in Beck v. State and a
companion case, Ex parte Kyzer, 399 So. 2d 330 (Ala. Mar. 6, 1981), the
Alabama Supreme Court judicially rewrote and expanded the 1975 Act.
First, the Alabama Supreme Court converted the mandatory jury
verdict of death into a permissive jury verdict of death.
Second, the Alabama Supreme Court, in its own words, “engrafted”
onto the statute a whole new jury sentencing hearing. See Ex parte Kyzer,
399 So. 2d at 339 (“Courts are not powerless to write standards and
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requirements which can be engrafted onto statutes to make the procedures
comport with legislative intent and due process of law”).
Third, the Alabama Supreme Court then declared that the jury and the
sentencing court could consider all of the fourteen (14) possible capital
offenses listed in § 13-11-2 as aggravated circumstances, instead of the more
limited list of eight (8) aggravated circumstances listed in § 13-11-6. As the
court explained in Ex parte Kyzer:
If, on review, the trial judge could not “weigh the aggravating
... circumstance” which was averred in the indictment, and
which was a part of the substantive offense, but which
aggravating circumstance was not included in § 13-11-6, the
sentencing hearing would be a complete and useless endeavor.
We cannot assume that the legislature did a useless act. It is
apparent that the legislature intended to permit the trial judge to
find the same “aggravated circumstances enumerated in
§ 13-11-2.” Code 1975, § 13-11-1. We so hold.
Kyzer, 399 So. 2d at 338.
Under this judicial expansion of the 1975 Act in Kyzer and Beck,
Tomlin all of a sudden became death eligible because, even though there still
was no aggravated circumstance listed expressly under § 13-11-6 that
applied to him, his capital offense under § 13-11-2 was now considered an
aggravated circumstance. As a result, Tomlin all of a sudden became death
and LWOP eligible.
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Alabama Passes a New Death Penalty Act in 1981
That same year, 1981, the Alabama legislature enacted a new death
penalty statute, 1981 Ala. Laws 203 (codified at Ala. Code §13A-5-39 et
seq. (2013)), for crimes committed after July 1, 1981. See Appendix D. The
new 1981 death penalty statute again deliberately did not include double
intentional murder as an aggravated circumstance under the equivalent of §
13-11-6 for the penalty phase jury and sentencing court hearings.
F.
Alabama Supreme Court Grafts Upward Judicial Override
On August 26, 1986, the Alabama Supreme Court further rewrote the
1975 Act to allow an upward judicial override so that the sentencing judge
could override a new jury verdict of LWOP and impose a sentence of death
under the 1975 Act. Ex parte Hays, 518 So. 2d 768 (Ala. 1986).
G.
The Second Capital Trial of Phillip Tomlin
On September 23, 1988, the Alabama Supreme Court reversed
Tomlin’s 1978 conviction of capital murder because of prosecutorial
misconduct on the part of the state prosecutor, Don Valeska. Ex parte
Tomlin, 540 So. 2d 688 (Ala. 1988).
In January and February 1990, Tomlin was retried in Mobile County
and convicted of double intentional murder under § 13-11-2(10). The
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sentencing jury returned a unanimous verdict of LWOP by a vote of 12 to 0.
However, the sentencing judge, Judge Ferrill McRae, overrode the jury’s
unanimous life verdict and sentenced Tomlin to death under the combined
effect of Beck, Kyzer, and Hays. State v. Tomlin, CC-89-000481 (Cir. Ct.
Mobile Cnty. 1990), District Court ECF No. 10-1 at pp. 64-73.
H.
The Third Capital Trial of Phillip Tomlin
On July 26, 1991, the Alabama Court of Criminal Appeals reversed
Tomlin’s conviction and sentence of death on the grounds, again, of
prosecutorial misconduct by, again, Don Valeska. Tomlin v. State, 591 So.
2d 550 (Ala. Crim. App. 1991).
On May 28, 1993, Phillip Tomlin was reindicted by the Grand Jury of
Mobile County in a one-count indictment charging him with double
intentional murder under § 13-11-2(10). See Appendix E. The indictment did
not aver any aggravated circumstances under § 13-11-6. It states as follows:
COUNT I
The GRAND JURY of [Mobile] County charge, that, before the
finding of this indictment, Phillip Wayne Tomlin, whose name
is to the Grand Jury otherwise unknown than as stated, did by
one act or a series of acts, unlawfully, intentionally, and with
malice aforethought, kill Richard Brune by shooting him with a
gun, and unlawfully, intentionally, and with malice
aforethought, kill Cheryl Moore by shooting her with a gun, in
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violation of Code of Alabama 1975, § 13-11-2(10), against the
peace and dignity of the State of Alabama.
This is the indictment under which Phillip Tomlin is presently
sentenced to LWOP. Notice again that it does not aver any aggravated
circumstances under § 13-11-6 because there is none that applies to Tomlin
under the 1975 Act.
Phillip Tomlin was tried on this indictment in Mobile County in
November 1993. He was convicted of the capital charge and received the
benefit of the prior unanimous jury verdict of LWOP. However, the
sentencing judge, Judge Edward McDermott, overrode the unanimous life
verdict and sentenced Tomlin to death on January 21, 1994 under the
combined effect of Beck, Kyzer, and Hays. On June 21, 1996, that conviction
was reversed by the Alabama Court of Criminal Appeals because of juror
misconduct. Tomlin v. State, 695 So. 2d 157 (Ala. Cr. App 1996).
I.
Further Alabama Legislative Action in 1999
In 1999, the Alabama legislature amended the 1981 Alabama death
penalty statute, §§ 13A-5-39 et seq., to include double intentional murder as
an aggravated circumstance for consideration at both the jury and sentencing
court penalty phase hearings. See Appendix F. That amendment applies to
any conduct committed after September 1, 1999.
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The Fourth Capital Trial of Phillip Tomlin in 1999
In June 1999, Phillip Tomlin was again retried under § 13-11-2(10),
pursuant to the May 28, 1993 indictment supra. Tomlin was convicted of
capital murder on June 4, 1999. This is the conviction at issue in this case.
Tomlin received the benefit of the unanimous jury verdict of LWOP.
However, on August 8, 2000, after a lengthy sentencing hearing, the
sentencing judge, Judge Herman Thomas, overrode the unanimous jury
verdict of LWOP and sentenced Tomlin to death under the combined effect
of Beck, Kyzer, and Hays. See State v. Tomlin, CC 93-1494 (Mobile County
Cir. Ct. 2000), District Court ECF 10-1 at pp. 52-62.
On October 3, 2003, the Alabama Supreme Court vacated Phillip
Tomlin’s sentence of death and ordered the Circuit Court of Mobile County
to sentence Tomlin to LWOP. Ex parte Tomlin, 909 So. 2d 283 (Ala. 2003).
The Alabama Supreme Court noted that the sentencing court did not find the
existence of any aggravated circumstance under § 13-11-6, id. at 285, but
decided the case on an entirely independent ground (that the override was
improper because it was based on the death sentence of the co-defendant).
Id. at 286-88. On May 10, 2004, the Circuit Court of Mobile County
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sentenced Phillip Tomlin to LWOP. This is the sentence that is at issue in
this case.
K.
Subsequent Alabama Supreme Court Decision in 2006
On July 28, 2006, the Alabama Supreme Court expressly overruled its
1981 decisions in Ex parte Kyzer and Beck v. State, declaring the relevant
parts of those decisions “unexpected and indefensible.” See Ex parte
Stephens, 982 So. 2d 1148 (Ala. 2006). The Alabama Supreme Court went
out of its way to make clear that its judicial expansion of the 1975 Act was
indefensible, unforeseeable, unexpected, and incomprehensible. The
Alabama Supreme Court explicitly stated in Stephens:
In Kyzer, the Court noted that “[a] literal and technical reading
of the statute” would preclude the consideration of an
aggravating circumstance other than those identified by statute.
399 So. 2d at 337. This would mean that some defendants, such
as Kyzer, could be convicted of capital murder without being
eligible for a death sentence. This Court rejected that
conclusion as “completely illogical.” Id. It is, however, the
Court’s responsibility to give effect to the plain meaning of a
statute, not to substitute its own judgment as to what is logical
or illogical. Munnerlyn v. Alabama Dep’t of Corr., 946 So. 2d
436, 438 (Ala. 2006).
Stephens, 982 So. 2d at 1153 n.6.
As a consequence of the decision in Stephens, at any sentencing
hearing under the 1975 Act, the jury and the sentencing court may only
consider the eight (8) aggravated circumstances explicitly enumerated in
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§ 13-11-6, which do not include double intentional murder. As the Alabama
Supreme Court explained in Stephens:
The statutory scheme clearly permits the trial court and
advisory jury to consider only those aggravating circumstances
listed in § 13A-5-49.
Stephens, 982 So. 2d at 1153.
The Alabama Supreme Court in Stephens was clear that the earlier
decisions in Kyzer and Beck were indefensible3: the Supreme Court noted
that “the discussion of aggravating circumstances in sentencing was
completely irrelevant to our decision”; that “Kyzer did not ‘hold’ anything
with respect to sentencing”; that “[o]ur discussion of aggravating
circumstances in that case was premature”; and that “the dicta in Kyzer
conflicts with the plain language of the Alabama Criminal Code (as the
Kyzer Court itself acknowledged).” Stephens, 982 So. 2d at 1153. The
court’s opinion in Stephens is a total repudiation of Kyzer and Beck.
3
It could be argued that Ex parte Stephens only overrules Kyzer and not
Beck regarding its ruling that the sentencing jury may consider § 13-11-2
aggravated offenses as aggravated circumstances, because Stephens involved
the 1981 Act and not the 1975 Act (and the 1981 Act was more explicit
about jury sentencing). However, this Court ruled out that argument in
Magwood v. Warden, 664 F.3d at 1346 n.6.
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This Court’s Magwood Decision
This Court also declared that the Kyzer and Beck cases were “an
unexpected and indefensible construction of narrow and precise statutory
language.” Magwood v. Warden, 664 F.3d 1340, 1349 (11th Cir. 2011). The
situation in Magwood was practically identical to this case, except that the
petitioner there was sentenced to death rather than LWOP. This Court held
that the application of those cases, Kyzer and Beck, violated the fair notice
principle of the Due Process Clause and that this was well established
federal constitutional law under the AEDPA.
II.
MR. TOMLIN IS ENTITLED TO A CERTIFICATE OF APPEALABILITY
BECAUSE REASONABLE JURISTS COULD DEBATE WHETHER HIS CLAIM
OF RETROACTIVITY ENTITLES HIM TO RELIEF
Jurists of reason could debate whether this Court’s decision in
Magwood applies not only to a death sentence, but to a sentence of LWOP—
the only other possible sentence under the 1975 Act, which was the only
way someone could be sentenced to LWOP in Alabama for conduct prior to
1981.
Just as in Magwood, at the time of Tomlin’s alleged offense on
January 2, 1977, the 1975 Act did not extend to the conduct and
circumstances alleged against Tomlin, because the capital statute did not
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include, as an aggravating factor, double intentional homicide. At that time
in 1977, Tomlin was not death eligible and could not be charged under the
1975 Act, which was the exclusive vehicle for a sentence of death or of
LWOP. As a result, Tomlin could only be indicted for two murders under the
ordinary homicide statute at the time (first-degree murder under § 13-1-70,
see Appendix G), which only provided for a maximum sentence of life with
the possibility of parole.
Mr. Tomlin did not have fair notice under the Due Process Clause of
the United States Constitution that he could be sentenced to LWOP. It was
only as a result of subsequent judicial decisions by the Alabama Supreme
Court—decisions that judicially rewrote the capital statute—that Tomlin
became death and LWOP eligible. Those judicial decisions, however, were
entirely unforeseeable at the time of the offense in 1977. And since then,
they have been overruled by the Alabama Supreme Court. They were
“unexpected and indefensible by reference to the law which had been
expressed prior to the conduct in issue.” Bouie v. City of Columbia, 378 U.S.
347, 354 (1964). Due process prohibits the retroactive application of any
such judicial rewritings of the 1975 Act.
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The United States Supreme Court made clear, in Rogers v. Tennessee,
that the test under Bouie is limited to the simple question whether a judicial
reinterpretation of a statute is “unexpected and indefensible.” Rogers, 532
U.S. at 461. It is under that clarified Rogers standard that this Circuit held
that the Alabama Supreme Court’s decision in Ex parte Kyzer, 399 So.2d
330 (1981), rewriting the 1975 Act, was “unexpected and indefensible,” and
that this is clearly established federal law under AEDPA, see Magwood v.
Warden, 664 F.3d at 1348.
The 1975 Act, as originally written, is crystal clear that Tomlin could
not be reindicted under the Act, as he was in 1993. The plain and literal
language of the 1975 Act states in unambiguous words:
“If the Defendant is re-indicted for an offense wherein the
indictment does not allege an aggravated circumstance, the
punishment upon conviction shall be as heretofore or hereafter
provided by law, however the punishment shall not be death or
life imprisonment without parole.”
§13-11-2 (last sentence; emphasis added) of 1975 Act, see Appendix A at
page A006-A007.
All parties agree that there is no aggravated circumstance in Tomlin’s
case that would make him death eligible. As the District Court held in its
order, see Appendix L, slip op. at p. 3, the “indictment which controls
Petitioner’s present sentence” does not allege an aggravated circumstance.
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That is because double-intentional homicide was not included in Alabama’s
death penalty scheme as an aggravated circumstance until 1999.
The 1975 Act explicitly states what would happen in Tomlin’s case
and literally provides that “the punishment shall not be death or life
imprisonment without parole.” Appendix A at page A006-A007. Therefore it
is inconceivable that Tomlin had fair notice that his sentence could be
LWOP. The words of the statute say otherwise. Even if this Court ultimately
does not agree on a full review on the merits, there is no doubt that
reasonable jurists could debate whether Tomlin is entitled to relief on this
retroactivity claim. Accordingly, this Court should grant a COA.
A.
A Plain Reading of the 1975 Act Demonstrates that Phillip
Tomlin Does Not Fall within the Ambit of the Capital Statute
On a plain reading of the 1975 Act at the time of the charged offense
(January 2, 1977), the statute did not extend to the conduct and
circumstances alleged against Tomlin. At that time—in 1977—the Alabama
Supreme Court had not yet judicially rewritten the statute. At that time, fair
warning was provided entirely by the plain meaning of the 1975 Act. At that
time, under a plain reading of the 1975 Act, with due regard for the rule of
lenity that must be afforded all persons charged with criminal offenses in the
State of Alabama, Tomlin could not have been indicted with a capital
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offense under § 13-11-2(10) and could not have been sentenced to death or
to LWOP.
The reason that Tomlin could not be charged with a capital offense is
that he was not (and is not) death eligible. The 1975 Act, as written, did not
provide for an independent sentence of LWOP (“LWOP”), but allowed
LWOP only as a discretionary downward departure by the sentencing judge
from a jury’s mandatory verdict of death. In order to be charged under the
1975 Act, and in order to receive a sentence of LWOP, a defendant had to
be death eligible so that he could receive a mandatory death sentence from
the jury. For that, there had to exist an aggravated circumstance under
§ 13-11-6 that the sentencing court could find at the sentencing hearing, in
order either to impose the jury’s mandatory death verdict or to depart
downward from the jury’s death verdict and sentence the defendant to
LWOP.
This is clear from the words and the structure of the 1975 Act as
originally written: The jury could not recommend a sentence of LWOP, and
the sentencing judge could only impose such as a sentence as a downward
departure from the jury’s death verdict. The 1975 Act required that the
defendant be sentenced to death by the jury and, therefore, it required that
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the defendant be death eligible. If a defendant was not death eligible, he did
not fit within the scope of the 1975 Act. The statute also literally provided
that if a defendant was re-indicted in a case without an aggravated
circumstance, the punishment could not be death or LWOP. §13-11-2 (last
sentence).
Phillip Tomlin would advance three related arguments to support this
plain reading of the 1975 Act, as written. Jurists of reason could debate these
three arguments:
1.
The Plain Words of the 1975 Act
A plain reading of the statute demonstrates that a defendant could
only be indicted for a capital offense if there existed an aggravated
circumstance that a sentencing court could find in order to sentence the
defendant to death. Section 2 expressly required that a defendant be
“charged by indictment with any of the following offenses [the 14 capital
offenses listed in § 13-11-2] and with aggravation [the 8 aggravated
circumstances listed in § 13-11-6] which must also be averred in the
indictment.” § 13-11-2 (emphasis added). The use of the extra clause “and
with aggravation which must also be averred in the indictment” can only be
understood one way: in addition to the capital offense that must be charged
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in the indictment, the indicting instrument must “also” include an aggravated
circumstance listed in § 13-11-6.
This is the only acceptable plain meaning of the 1975 Act given the
canons of statutory construction—three foundational canons in particular:
(1) First, “every word and clause must be given effect”: 4 this
fundamental canon of construction requires that we read the clause—“and
with aggravation which must also be averred in the indictment”—and
especially the words “and” and “also,” to have meaning. It requires that the
clause not be read as completely redundant—that it not be read to mean that
the indictment “must state the capital offense and must also state the capital
offense.” That would give effect neither to those explicit words, nor to the
clause itself.
(2) Second, the “purpose rule”: this foundational canon of
construction requires that we “interpret ambiguous statutes so as best to
4
See Henry Campbell Black, Handbook on the Construction and
Interpretation of Laws, § 60 (2d ed. 1911); Jabez Grisby Sutherland & John
Lewis, Statues and Statutory Construction § 380 (2d ed. 1904); 2A Norman
J. Singer & Shambie Singer, Sutherland Statutes and Statutory Construction,
§ 46:6 (7th ed. 2014); Carroll v. Ala. Pub. Serv. Comm’n, 206 So. 2d 364
(Ala. 1968); William N. Eskridge, Phillip P. Frickey & Elizabeth Garrett,
The Supreme Court’s Canons of Statutory Construction 389–97, in
Legislation and Statutory Interpretation (2d ed. 2006).
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carry out their statutory purposes.”5 In this case, the only coherent reading of
the extra clause, to carry out the purpose of the capital statute, is to limit
prosecution only to where there is an aggravated circumstance that would
allow a sentencing court to sentence a defendant to death.
(3) Third, and most importantly under Alabama law as it existed in
1977, the “rule of lenity”: this is the fundamental canonical rule that “all
doubts concerning [the interpretation of criminal statutes] are to
predominate in favor of the accused.” Fuller v. State, 60 So. 2d 202, 205
(Ala. 1952); see Anderson v. City of Birmingham, 88 So. 900, 901 (Ala.
1921); Locklear v. State, 282 So. 2d 116 (Ala. Crim. App. 1973). The strong
rule of lenity in Alabama, on which Tomlin was entitled to rely, would
command that the statute be read as requiring that an aggravated
circumstance be averred in the indictment in order to protect defendants.
Under the rule of lenity, the statute must be construed in Tomlin’s favor.
This plain reading of § 13-11-2 should control. Under this reading,
Phillip Tomlin could not have been charged with a capital offense because
the prosecution could not aver in the indictment an aggravated circumstance
5
Eskridge, Frickey, & Garrett, supra, at 395; see Age-Herald Publ’g
Co. v. Huddleston, 92 So. 193, 197–98 (Ala. 1921).
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that would allow a court to sentence Tomlin to death under § 13-11-4. The
one-count indictment issued on May 28, 1993 does not aver an aggravated
circumstance, because there is indisputably none in Tomlin’s case.
Accordingly, Tomlin could not be sentenced to death by the jury, which
means the sentencing court could not depart downward from the death
sentence and impose LWOP. Tomlin did not fall within the ambit of the
1975 Act.
2.
The Structure of the 1975 Act
The structure of the 1975 Act makes clear that the statute, as written,
was only intended to apply to a defendant who was death eligible. The 1975
Act was structured as a mandatory death penalty statute with a discretionary
optional downward departure: the sentence of LWOP was not an
independent option on par with a death sentence, but was instead a safe
harbor for the sentencing court should it find, at its discretion, that a
sentence of death was inappropriate.
This is clear from three structural elements of the 1975 Act that
reasonable jurists could debate:
(i) First, in the very first section of the Act, § 13-11-1, the legislation
makes clear that a defendant in Alabama can only be sentenced to death or
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LWOP if the procedures spelled out in § 13-11-2 are followed. The statute is
clear that a sentence of death or LWOP may only be imposed “in the cases
and in the manner herein enumerated and described in Section 2 of this
Act.” § 13-11-1 (emphasis added). In other words, LWOP cannot be
imposed on a defendant except as per the rules set out in Section 2.
(ii) Second, Section 2 is entirely silent about the sentence of LWOP.
Instead, it addresses only death sentencing, and requires a mandatory jury
verdict of death in the case of conviction. In setting out the procedure,
Section 2 requires two things: first, that the indictment must aver an
aggravated circumstance (to ensure that the grand jury determine whether
the defendant could be sentenced to death); and second, that the jury return a
mandatory sentence of death. In other words, it is only if a defendant can be
sentenced to death by the jury and sentencing court that he falls under the
ambit of the statute. It is only in cases where a defendant can be sentenced to
death that the procedures engage, namely that the jury must return a
mandatory death sentence, and then that the sentencing court would hold a
sentencing hearing under §§ 13-11-3 and 4.
(iii) Third, it is at the court sentencing hearing, pursuant to § 13-11-4,
that the trial court could decide either to follow the jury’s verdict of death
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and sentence a defendant to death, or to depart downward and impose a
sentence of LWOP. In order to sentence a defendant to death, the court has
to find one or more aggravated circumstances under § 13-11-6. For this
reason, in § 13-11-2, the statute requires that the prosecutor allege the
aggravated circumstance(s) in the indictment—precisely to prevent the
situation where a defendant is sentenced to death by the jury, but could not
be sentenced to death by the court.
3.
The Need to Avoid Legal Incoherence
Tomlin’s reading is also the only reasonable reading of the 1975 Act
that would avoid incoherence. It would be unreasonable—and surely violate
the rule of lenity—to read the 1975 Act to require a mandatory jury verdict
of death in a case where the defendant could never, under any circumstance,
be sentenced to death. It would be entirely unreasonable to impose on a jury
the responsibility of sentencing someone to death when the individual could
never, under any circumstance, receive a death sentence.
The Alabama Supreme Court in fact recognized as much in Ex parte
Kyzer (1981), and actually tried to resolve this incoherence—in a manner
that it would regret and repudiate 25 years later in Ex parte Stephens (2006).
In Kyzer, the court expressly acknowledged the incoherence, noting that it
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would be “completely illogical and would mean the legislature did a
completely useless act by creating a capital offense for which the defendant
could not ultimately receive the death penalty.” Kyzer, 399 So. 2d at 337
(emphasis added). The court in Kyzer emphasized:
Why would the legislature require that “aggravation” be averred
in the indictment and authorize the jury to fix the punishment at
death, and then not provide a corresponding “aggravating
circumstance” for the judge to find, and thereby force the judge
at the post conviction hearing to refuse to accept the death
penalty fixed by the jury? We can think of no reason why the
legislature would intend such a result.
Id.
Now, in Kyzer, the Alabama Supreme Court resolved this incoherence
by declaring that the sentencing court could simply use the 14 elements of
aggravation in the definition of the capital offense from § 13-11-2 (in
Tomlin’s case, double intentional homicide) as the aggravated circumstances
under § 13-11-6 (even though they were not all listed there, particularly not
double intentional murder). Twenty-five years later, in 2006, in Ex parte
Stephens, 982 So. 2d 1148, 1153 (Ala. 2006), the Alabama Supreme Court
would repudiate this language in Kyzer, overrule its earlier decision, and
correctly state that this part of the Kyzer opinion was “pure dicta,” was
“completely irrelevant to our decision,” and “conflicts with the plain
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language of the Alabama Criminal Code (as the Kyzer Court itself
acknowledged).”
Today, Ex parte Kyzer is no longer valid law. But the potential
incoherence the court recognized in Kyzer remains—unless, of course, the
statute is read as Tomlin suggests it must. As a matter of fact, the
incoherence actually played out in Tomlin’s case: a fully-empanelled 12person Alabama jury agonized over whether to sentence him to death—and
very possibly could have sentenced him to death—despite the fact that the
court could not have sentenced him to death.
To interpret the 1975 Act in any other way would violate Phillip
Tomlin’s due process right to fair notice, because it amounts to an
unexpected and indefensible interpretation of the 1975 Act, in violation of
Bouie v. City of Columbia, 378 U.S. 347, 354 (1964). Of this, at the very
least, reasonable jurists could debate.
III.
REASONABLE JURISTS COULD DEBATE WHETHER THE DISTRICT
COURT INCORRECTLY APPLIED HARRINGTON V. RICHTER TO AN
EXPLAINED, BUT ERRONEOUS, STATE COURT DECISION.
The District Court improperly accorded AEDPA deference to the
decision of the Alabama Court of Criminal Appeals denying Mr. Tomlin’s
due process claim on state collateral review. The District Court’s error was
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to treat the reasoned decision from the Court of Criminal Appeals as an
“unexplained” decision; then, applying the mode of analysis applicable only
to unexplained decisions, the District Court searched for reasons that “could
have supported [] the state court’s decision,” Harrington v. Richter, 562 U.S.
88, 102 (2011), and accorded AEDPA deference to those reasons.
Because the decision of the Alabama Court of Criminal Appeals was a
reasoned decision, the District Court should instead have evaluated whether
the Alabama Court of Criminal Appeals’ actual reasons for its decision were
contrary to the principles clearly established in Bouie v. City of Columbia,
378 U.S. 347 (1964) and Rogers v. Tennessee, 532 U.S. 451 (2001). They
were. Accordingly, the strict standard of review required under AEDPA
does not apply in this case. At the very least, this could be debated among
jurists of reason, and the Court should issue a COA to review the merits.
A.
In Its AEDPA Analysis, The District Court Incorrectly
Substituted Its Own Reasons with those Actually Given by the
Alabama Court of Criminal Appeals.
The District Court recognized, and Phillip Tomlin agrees, that the
relevant final state court decision, for purposes of this federal habeas action,
is the 2009 decision of the Alabama Court of Criminal Appeals denying
Tomlin’s Rule 32 petition (Appendix I). See Wilson v. Sellers, 138 S. Ct.
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1188, __ (2018) (federal habeas courts generally “look through” to the last
reasoned state court decision on the merits); Tomlin v. Patterson, 1:10-cv00120-CG-B, Slip Op. at 8-9 (Appendix L).
That 2009 Alabama Court of Criminal Appeals decision, in relevant
part, reads as follows:
Finally, with regard to [the claim that Tomlin’s sentence of life
imprisonment without parole was improper], after this court
affirmed the appellant’s conviction and sentence of death, the
Alabama Supreme Court “reverse[d] the judgment of the Court
of Criminal Appeals as to Tomlin’s sentence and remand[ed]
the case for that court to instruct the trial court to resentence
Tomlin, following the jury’s recommendation of life
imprisonment without the possibility of parole.” See Tomlin v.
State, 909 So. 2d 283, 287 (Ala. 2003). On remand, the trial
court complied with the Alabama Supreme Court’s instructions
and sentenced the appellant to imprisonment for life without the
possibility of parole. See Tomlin v. State, 909 So. 2d 290 (Ala.
Crim. App. 2004). Therefore, the appellant’s argument is
without merit.
Tomlin v. State, CR-08-0493 (Ala. Crim. App. Jun. 12, 2009) at 2-3 (second
and third alterations in original), see Appendix I at A070-A071.
“Therefore”: The word “therefore” means “for that reason,” “because
of that,” or “on that ground.” By using the word “therefore,” the Alabama
Court of Appeals indicated that it denied Tomlin’s due process claim for one
particular reason: namely, that the Alabama Supreme Court had previously
ordered that Tomlin be sentenced to life imprisonment without the
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possibility of parole. The Alabama Court of Criminal Appeals clearly
rejected Tomlin’s claim for the reason that the Alabama Supreme Court’s
prior order in Tomlin’s case precluded relief.
The District Court generally recognized as much: it noted “that the
state court’s post-conviction decision provides no reasoning beyond finding
Petitioner’s sentence is as the Alabama Supreme Court ordered.” Slip Op. at
25, see Appendix L at page A106. And the District Court correctly found
that “[t]he Alabama Supreme Court opinion ordering his sentence of LWOP
offers no guidance because Petitioner’s argument regarding his sentence of
death on direct appeal differs from his post-conviction argument, which is
the argument presently before the Court.” Id.
But the District Court’s next sentence goes on to state that “[t]hus, it is
necessary to ‘determine what arguments or theories supported, or . . . could
have supported, the state court’s decision.’” Slip Op. at 25-26 (citing
Richter, 562 U.S. at 102). That was in error. While a District Court
reviewing a federal habeas corpus petition must supply reasons for a state
court that chooses not to provide any, it must not substitute reasons different
from those the state court stated it relied upon.
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This much is now clear from the Supreme Court’s recent decision in
Wilson v. Sellers, 138 S. Ct. 1188 (2018). In Wilson, the Supreme Court
recognized that:
[W]hen the last state court to decide a prisoner’s federal claim
explains its decision on the merits in a reasoned opinion . . . . a
federal habeas court simply reviews the specific reasons given
by the state court and defers to those reasons if they are
reasonable. We have affirmed this approach time and again.
See, e.g., Porter v. McCollum, 558 U.S. 30, 39–44 (2009) (per
curiam); Rompilla v. Beard, 545 U.S. 374, 388–392 (2005);
Wiggins v. Smith, 539 U.S. 510, 523–538 (2003).
138 S.Ct. at 1192 (emphasis supplied). By contrast, “where ‘a state court’s
decision is unaccompanied by an explanation, the habeas petitioner’s burden
still must be met by showing there was no reasonable basis for the state
court to deny relief.’” Id. (quoting Richter, 562 U.S. at 98).
Wilson then made clear the limitations of Richter, noting that:
Had we intended Richter’s “could have supported” framework
to apply even where there is a reasoned decision by a lower
state court, our opinion in Premo [v. Moore] would have
looked very different. We did not even cite the reviewing state
court’s summary affirmance. Instead, we focused exclusively
on the actual reasons given by the lower state court, and we
deferred to those reasons under AEDPA.
Id.
The Wilson Court therefore limited Richter’s rule to a
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