Opposition Brief — Casey A. McWhorter, Petitioner v. Jefferson S. Dunn, Commissioner, Alabama Department of Corrections, et al.

No. 20-1302

In the Supreme Court of the United States

──────────────────────────

CASEY A. MCWHORTER,

Petitioner,

v.

COMMISSIONER, Alabama Department of Corrections

Respondent.

──────────────────────────

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

──────────────────────────

BRIEF IN OPPOSITION

──────────────────────────

STEVE MARSHALL

Alabama Attorney General

Edmund G. LaCour Jr.

Alabama Solicitor General

James Roy Houts*

Deputy Attorney General

Morgan Shelton

Assistant Attorney General

OFFICE OF ALABAMA ATTORNEY GENERAL

501 Washington Avenue

Montgomery, AL 36130

(334) 242-7300

James.Houts@AlabamaAG.gov

*Counsel of Record

May 10, 2021

Counsel for Respondent

CAPITAL CASE

QUESTIONS PRESENTED

(Rephrased)

1.

At the time of Casey McWhorter’s trial, Juror Linda Burns was 43 years old,

and she had a 10th-grade education. The juror questionnaire asked if she knew

anyone who had been a victim of a crime, and she listed only her brother-in-law who,

rather than being a victim of a crime, had been arrested for “drugs.” More than thirty

years prior, her father died under mysterious circumstances, but no one was ever

arrested in connection with his death. Burns testified that for a time she thought her

father had been murdered, but that by the time of McWhorter’s trial she was not sure.

She testified that she did not think to list her father when filling out the

questionnaire, in part because no one had been arrested for his murder. The state

court found that Burns had not lied on the questionnaire, and the appellate court

affirmed. Was that determination unreasonable?

2.

To prevail on his juror bias claim, McWhorter needed to prove not only that

Juror Burns lied, but that “a correct response would have provided a valid basis for a

challenge for cause.” McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556

(1984). At McWhorter’s urging, the state court looked to state law to conduct a more

petitioner-friendly prejudice analysis of McWhorter’s claim and then rejected the

claim. Was the state court’s decision contrary to clearly established federal law?

3.

Did the state court unreasonably apply Strickland v. Washington, 466 U.S.

668, 690 (1984)?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED………………………………………………………………………..II

TABLE OF CONTENTS…………………………………………………………………………...III

TABLE OF AUTHORITIES...................................................................................................V

STATEMENT OF THE CASE.................................................................................................1

A. McWhorter ambushes, robs, and murders Williams...................................... 1

B. McWhorter’s trial counsel investigates mitigation evidence and

chooses a strategy based on sympathy for McWhorter’s family, his

youth, clean-cut appearance, and lack of criminal history. ........................... 2

C. McWhorter’s counsel extensively questions the juror venire and

chooses a jury panel that includes Juror Linda Burns .................................. 4

D. McWhorter is convicted of murder in the course of a robbery and

sentenced to death. .......................................................................................... 6

E. The state postconviction court conducts an evidentiary hearing and

denies relief, and the state appellate court affirms. ...................................... 7

F. The federal courts deny habeas relief........................................................... 15

REASONS FOR DENYING THE WRIT.................................................................................16

I.

The Eleventh Circuit’s Decision’s Decision Plainly Establishes That the

Court Reviewed the Entire State Court Record.................................................. 16

II. The State Court’s Ruling on Whether the Prejudice Prong of McWhorter’s

Juror Bias Claim Was Not Contrary to Federal Law. ........................................ 19

III. McWhorter’s Ineffective-Assistance-of-Counsel Claim Lacks Merit and Does

Not Present a Compelling Issue Warranting Certiorari Review ....................... 20

iii

A. The state court reasonably concluded that McWhorter’s counsel

formed a reasonable mitigation strategy based on a reasonable

investigation. ................................................................................................. 21

B. The state court reasonably concluded that McWhorter was not

prejudiced by the lack of additional evidence during his penalty

phase. ............................................................................................................. 26

CONCLUSION ................................................................................................................ 33

iv

TABLE OF AUTHORITIES

Cases

Burger v. Kemp,

483 U.S. 776 (1987) ...................................................................................... 23, 27, 31

Chandler v. United States,

218 F.3d 1305 (11th Cir. 2000) ................................................................................ 21

Cullen v. Pinholster,

563 U.S. 170 (2011) ............................................................................................ 23, 25

Ex parte Dobyne,

805 So. 2d 763 (Ala. 2001) ....................................................................................... 19

Ex parte McWhorter,

781 So. 2d 330 (Ala. 2000) ..................................................................................... 1, 7

Gilreath v. Head,

234 F.3d 547 (11th Cir. 2000) .................................................................................. 29

Gray v. Lucas,

677 F.2d (5th Cir. 1982). .......................................................................................... 30

Grayson v. Thompson,

257 F.3d 1194 (11th Cir. 2001) ................................................................................ 23

Harrington v. Richter,

562 U.S. 86 (2011) .................................................................................................... 21

McDonough Power Equip. v. Greenwood,

464 U.S. 548 (1984) ........................................................................................ ii, 19, 20

McWhorter v. Alabama,

532 U.S. 976 (2001) .................................................................................................... 7

McWhorter v. Dunn,

No. 4:13-CV-02150-RDP, 2019 WL 277385 (N.D. Ala. Jan. 22, 2019) ................... 15

McWhorter v. State,

142 So. 3d 1195 (Ala. Crim. App. 2011) .................................................. 7, 14, 22, 30

v

Putman v. Head,

268 F.3d 1223 (11th Cir. 2001). ............................................................................... 28

Reed v. Sec’y, Fla. Dep’t of Corr.,

593 F.3d 1217 (11th Cir. 2010). ............................................................................... 27

Strickland v. Washington,

466 U.S. 668 (1984) .......................................................................................... passim

Wiggins v. Smith,

539 U.S. 510 (2003) ............................................................................................ 14, 18

Williams v. Taylor,

529 U.S. 362 (2000) ............................................................................................ 14, 26

Wong v. Belmontes,

558 U.S. 15 (2009) .................................................................................................... 28

Statutes

28 U.S.C. § 2254..................................................................................................... 17, 20

28 U.S.C. § 2254(b)(2) .................................................................................................. 17

Rules

Alabama Rules of Criminal Procedure

Rule 32 ........................................................................................................................... 7

Alabama Rules of Evidence

Rule 606 ........................................................................................................... 14, 17, 18

Rule 606(b) ............................................................................................................. 14, 17

vi

STATEMENT OF THE CASE

A. McWhorter ambushes, robs, and murders Williams.

Petitioner Casey McWhorter, Lee Williams, and two other friends conspired to

rob and murder Lee’s father, Edward Williams. Ex parte McWhorter, 781 So. 2d 330,

333 (Ala. 2000). McWhorter and his co-conspirators spent three weeks planning the

murder and, around 3:00 p.m. on February 18, 1993, Lee and one of the other

conspirators dropped McWhorter and the fourth conspirator off at Edward Williams’s

home. Id. at 333. Knowing that Williams would not be home for three to four hours,

McWhorter and his friend passed the time finding the rifles they would use to kill

Williams, creating makeshift silencers for those rifles, test-firing them into a

mattress, and pillaging through the house for items they wanted to steal. Id. When

Williams arrived at his home, McWhorter shot first. He and his co-conspirator

ultimately shot Williams at least eleven times. Id. One of those shots came as

Williams was lying helpless on the floor, when McWhorter fired a shot directly into

Williams’s head.

After killing Williams, McWhorter methodically gathered items from the

home, including retrieving Williams’s wallet from his dead body, before driving away

in Williams’s pick-up truck. Ex parte McWhorter, 781 So. 2d at 333. The coconspirators met at a pre-arranged spot in the woods, divided the stolen items, and

stripped the truck. Id. McWhorter’s only concern was that Edward Williams did not

have as much money on him as his son had promised. CA11 Supp. App. Doc. 6 at 1920, 24-45; CA11 Supp. App. Doc. 7 at 2.

1

After the co-conspirators separated, McWhorter hid his “take” from the

robbery. CA11 Supp. App. Doc. 6 at 1-18. Another co-conspirator almost immediately

went to the police and reported the crime. Id. at 27-30. The day after the murder,

police found McWhorter; he confessed and was arrested. CA11 Supp. App. Doc. 2.

B. McWhorter’s trial counsel investigates mitigation evidence and

chooses a strategy based on sympathy for McWhorter’s family, his

youth, clean-cut appearance, and lack of criminal history.

On May 14, 1993, McWhorter was indicted for capital murder. Two counsel

were appointed to represent him at trial. Lead counsel had been practicing for 11

years and had handled around 25 felony trials, eight to ten of which had been murder

trials. CA11 App. Doc. 13 at 218-19. The second-chair had been practicing for three

to four years and had handled around two hundred criminal cases, with five to ten

going to trial—one of those being a capital case where the defendant received a life

sentence. Id. at 702-03.

Counsel began preparations for trial over a year in advance. CA11 Supp. App.

Doc. 3 at 2. They met with McWhorter and his family—specifically his mother, aunt,

and sister—many times over the course of the investigation. Id. at 2-4. After one of

those interviews with McWhorter’s mother, aunt, and sister, counsel completed a

client background information form, which covered McWhorter’s “early childhood

development, his environmental factors; such as, living conditions, medical issues as

a youth, and relationship information; his institutional data; such as, education

history, his medical and mental health history, his substance abuse history, his

criminal history, and his family history.” CA11 App. Doc. 10 at 46. Throughout the

2

entire process, both McWhorter and his family were fully cooperative. CA11 App. Doc.

13 at 245-46, 735-36, 745-46.

In June and July 1993, the probation office conducted a background

investigation into McWhorter in preparation for his youthful offender status hearing.

CA11 Supp. App. Doc. 5 at 1. That report covered McWhorter’s juvenile record, his

personal/social history (including any alcohol or drug use, mental-health issues,

education- and employment-history), his family (including that his father had been

convicted of statutory rape and had terminal cancer), as well as his reputation in the

community. CA11 Supp. App. Doc. 1 at 3-5. Counsel reviewed the report in early June

1993, spoke with the probation officer who authored it, and carefully went over it

with McWhorter. CA11 Supp. App. Doc. 5; CA11 App. Doc. 13 at 184-85. McWhorter

affirmed in open court that everything in the report was correct. CA11 Supp. App.

Doc. 5 at 3.

In July 1993, counsel subpoenaed McWhorter’s medical records, which detailed

his suicide attempt, and after reviewing those records, met with McWhorter for at

least an hour and a half at the jail to discuss those records. CA11 Supp. App. Doc. 3

at 2. In October 1993—five months before trial—counsel hired a neuropsychologist to

perform a psychiatric exam and evaluate all aspects of McWhorter’s mental health,

including competency and anything that might be helpful in mitigation. Id. at 2-3;

CA11 App. Doc. 13 at 200-01, 372, 762-63. The neuropsychologist performed an allday examination of McWhorter, found he had an IQ of 88, and stated, “[t]here is no

evidence of psychological distress/confounding mental disorder.” CA11 App. Doc. 13

3

at 378; CA11 Supp. App. Doc. 9; CA11 Supp. App. Doc. 10 at 2. Nor did any of the

information from McWhorter’s family or any of McWhorter’s behaviors indicate

mental-health problems. CA11 App. Doc. 13 at 181, 230.

McWhorter’s confession, guilty pleas by two of his co-conspirators, graphic

photos and a graphic video of the crime scene, as well as evidence that McWhorter

was involved in a gang created a penalty-phase deficit. App. Doc. 13 at 738-41. Even

so, based on the extensive investigation they had performed, counsel decided on a

strategy for both the guilt and the penalty phases: they would use McWhorter’s youth

and lack of criminal history to argue that he was a good kid who had gotten involved

with the wrong crowd and, specifically in the penalty phase, play on sympathy for his

family. CA11 App. Doc. 13 at 240, 737.

C. McWhorter’s counsel extensively questions the juror venire and

chooses a jury panel that includes Juror Linda Burns

The trial began on March 13, 1994 with voir dire, which lasted four days. CA11

Supp. App. Doc. 8. First, counsel had the potential jurors answer a 34-question

questionnaire. Next, they questioned them in-person, both as a group and privately.

Linda Burns, who did not complete high school, CA11 App. Doc. 13 at 53, struggled

to complete the questionnaire. Eventually court personnel had to assist her because

everyone else was finished and had left. Id. at 158. Relevant here is her answer to

question 21, which asked: “Have you, any member of your family or anyone you know

ever been the victim of a crime?” CA11 App. Doc. 24 at 2. That question was followed

4

by sub-questions asking, if yes, who, what crime, and had been an arrest or

conviction. Id.

Burns answered question 21 affirmatively, writing her brother-in-law’s name,

that the crime was “drugs,” and that someone was arrested and convicted:

Id.

Question 22 asked: “Have you, any member of your family or anyone you know

ever been accused of a crime?” Burns again answered, “yes,” and again identified her

brother-in-law, Steve Burns, for “drugs.” She also listed her nephew:

Id.

In light of Burns’s confused answer to question 21, McWhorter’s trial counsel

questioned Burns privately. CA11 App. Doc. 23 at 1-2. But they asked only if she

could be fair and impartial given that her brother-in-law had been convicted in a drug

case. Id. at 2. They never asked any questions about whether Burns knew anyone

5

who had been the victim of a crime. Id. at 2-5; CA11 App. Doc. 13 at 152. In the end,

a jury was chosen, and Burns was on it.

D. McWhorter is convicted of murder in the course of a robbery and

sentenced to death.

The guilt phase of the trial began on March 17, 1994, and continued for five

days. After a day of deliberations, McWhorter was convicted of capital murder for an

intentional killing in the course of a robbery. CA11 App. Doc. 26 at 4-7. The penalty

phase of trial began later that same day. McWhorter presented four witnesses, all of

whom offered testimony supporting trial counsel’s strategy to depict McWhorter as a

good kid who had gotten involved with the wrong crowd while evoking sympathy for

his family. McWhorter’s mother testified that he “had never got into anything until

he got in with [the co-conspirators]. He was a good kid.” Id. at 39-40. Similarly, his

aunt testified that McWhorter was “a very bright … young man” and “one of the most

compassionate young men [she] ha[d] ever seen.” Id. at 31. And although “[h]e had

got[ten] involved with the wrong people[,] [he was] not a bad boy at heart.” Id.

McWhorter also presented evidence from a former employer and a former co-worker.

Both testified that McWhorter was a good kid, hard-working, and dependable. Id. at

17-24. His co-worker explained how he would go out of his way to be kind, relaying a

story about how he would massage one of the older worker’s shoulders when she

complained that her back hurt. Id. at 19. The State offered no new evidence.

After closing arguments and instructions, the jury retired to deliberate. Twoand-a-half hours and one Allen-charge later, the jury returned, recommending the

6

sentence of death by a vote of 10-2. Id. at 98. A little over a month later, after hearing

testimony from three witnesses, the trial judge agreed with the jury’s

recommendation. The judge focused on the premeditated and calculated nature of

McWhorter’s crime and how he had shown no remorse, CA11 App. Doc. 28 at 11-12,

and the judge found that “the aggravating circumstance in this case far outweighs

the mitigating circumstances and that the punishment should be death,” CA11 App.

Doc. 21 at 11. McWhorter appealed his conviction and sentence and the Alabama

Court of Criminal Appeals affirmed. McWhorter v. State, 781 So. 2d 257 (Ala. Crim.

App. 1999). The Alabama Supreme Court, on certiorari review, affirmed. Ex parte

McWhorter, 781 So. 2d 330 (Ala. 2000). And this Court denied certiorari. McWhorter

v. Alabama, 532 U.S. 976 (2001).

E. The state postconviction court conducts an evidentiary hearing

and denies relief, and the state appellate court affirms.

McWhorter then sought collateral relief in state court under Alabama Rule of

Criminal Procedure 32. The circuit court on collateral review (the “Rule 32 court”)

held a hearing on McWhorter’s impartial-jury and ineffective-assistance-of-counsel

claims. During those three days, McWhorter presented many witnesses to try to meet

his burden: both of McWhorter’s trial counsel, the neuropsychologist who had

examined him, two jurors (including Burns), a former coach and teacher, and a

collection of relatives and friends, including his aunt (who testified at the penalty

phase of his trial).

7

McWhorter’s impartial-jury claim was based on the premise that Burns had

improperly failed to state on question 21 that her father—who died when Burns was

a young girl—had been the victim of a crime. During the hearing, Burns consistently

testified that she was not sure how her father died. When asked if she could describe

what happened to him, she responded, “Well, I can tell you what I was told.” CA11

App. Doc. 13 at 56. She then explained that when she was a child she had been told

(and believed) that her father had been killed by a man who had murdered her

father’s friend, id. at 61, 65, 77, but as she got older, doubt crept in.

Burns relayed how before McWhorter’s trial, she had dated a law student who

investigated her father’s case. He concluded that her father had not been murdered.1

He told her that her father’s autopsy report showed that her father had drowned. Id.

at 68. After that, she admitted that she continued to believe that the man who

murdered her father’s friend had something “indirectly” to do with her father’s death

1 McWhorter’s collateral review counsel repeatedly and unsuccessfully tried to get

Burns to say the opposite. First, he asked if the lawyer had concluded that “even

though he couldn’t get enough evidence to prove [her] father was murdered, that

having worked on the case he did believe it.” CA11 App. Doc. 13 at 67. Burns,

confused, asked for clarification: “[b]elieve that my father was murdered or that he

drowned?” Id. Counsel clarified that he meant that the lawyer had believed he had

been murdered. Id. Burns responded, “No. You got it backwards.” Id. at 68. A few

questions later she again stated, “[The lawyer I dated] told me that my father had

drowned.” Id. McWhorter’s counsel tried again: “[D]id he explain that because the

autopsy showed that your father had drowned they were unable to prove that he had

been murdered?” Id. at 68-69. And again: “[I]sn’t it true that the man we’re talking

about, the lawyer, said that because the autopsy couldn’t prove the murder because

it said drowned, that he still believed, based on all the evidence he knew about, that

it was a murder?” Id. at 69. Burns answered both questions with a single word—“No.”

Id.

8

and, when pushed, that her father “could have been [intentionally drowned],” but she

stated that she no longer believed he had been murdered. Id. at 77, 146. She was

asked directly, “[A]t the time you served on the jury in Casey McWhorter’s case, did

you believe that your father had been murdered?” She answered, “No. Q. You did not?

A. No.” Id. at 68. And shortly after, when asked a substantially similar question, she

replied, “I do not know. Only God knows that.” Id. at 77. McWhorter then argued—

ultimately unsuccessfully—that the court should also consider statements Burns

made during jury deliberations. Id. at 82-83. McWhorter also elicited testimony from

his trial counsel that if Burns had believed her father was murdered and he had

known it, he “probably would have challenged her for cause.” Id. at 171.

McWhorter also introduced additional mitigating evidence that he contends

should have been presented, which generally fell into one of three categories: his

childhood and family life, his substance abuse, and his reputation at school.

McWhorter’s father abandoned McWhorter at an early age. Id. at 289-90, 46667. But McWhorter considered his stepfather to be his real father. Id. at 229; App.

Doc. 29 at 3. And his stepfather treated him as such. He took McWhorter fishing and

played baseball with him; he cooked out for family barbecues; he tried to adopt

McWhorter; he took him to his dentist appointments; he went to his basketball

games; he loved McWhorter. CA11 App. Doc. 13 at 482-85, 492. On the weekends,

McWhorter would visit his cousins, who lived with his grandfather. Occasionally he

would choose to spend the night. Id. at 503. Sometimes his cousins would spend the

night at his house. Id. at 507, 516.

9

Evidence revealed one occasion in which McWhorter’s mother gave him a

disciplinary whipping that left bruises on his legs and buttocks. Id. at 203-04.

McWhorter’s aunt reported the incident to the state Department of Human Resources

(“DHR”), which performed a brief investigation, found no need for further action, and

closed the case. Id. at 204, 300-01. McWhorter’s Rule-32-hearing mitigation specialist

opined that McWhorter’s punishments were mostly appropriate to what he had done

wrong, and even when they were not, they were normal. Id. at 831.

As McWhorter got older, he became an increasingly difficult child to manage,

Id. at 307-09, 468, but his family remained supportive. His stepfather bought

McWhorter a car—when McWhorter totaled it, his stepfather bought him a second

car so that he could continue attending the school of his choice (only to find out later

that he was actually skipping class so often he failed that grade). Id. at 477-79, 488.

His stepfather allowed McWhorter and some friends to camp at his farm. Instead,

McWhorter and his friends absconded to Bay Minette, stole a Porsche on the way,

and got arrested. Id. at 318, 476. His parents paid to send McWhorter to reform

school. Id. at 473. But it did not help. Id. After McWhorter stole his stepfather’s truck,

McWhorter’s aunt, who had a son around the same age, asked to take McWhorter in

because she thought she could “help get him on the right path.” Id. at 357, 475.

Concerning substance abuse, the testimony showed that McWhorter drank

often. Id. at 313, 430, 655. He huffed gasoline and freon with his cousins starting at

a young age. Id. at 469-71, 504-05. Although one witness testified that McWhorter

used hard drugs, id. at 655, other evidence suggested that McWhorter’s only drug use

10

was occasional use of marijuana, id. at 208, 352-54, 367, 435, 474; CA11 App. Doc. 26

at 28; CA11 Supp. App. Doc. 1 at 3. Importantly, the neuropsychologist who had

examined McWhorter at the time of trial explained that there was no “evidence of

substance abuse related brain damage” or any evidence of brain damage of any kind.

App. Doc. 13 at 365, 394. In fact, “[t]he neuropsychological testing in total was fairly

unremarkable and didn’t suggest anything, in terms of significant impairment, in

terms of neurological function.” Id. at 221-22, 364-65. And more tellingly, the

neuropsychologist that McWhorter retained for the Rule 32 proceedings admitted

that he had not tested McWhorter and had no idea whether he had any brain damage.

Id. at 936.

At school, McWhorter was an average student who worked hard and did not

cause too much trouble. Id. at 545-46, 548, 561-62. A friend from school explained

how he had been a good friend and would still write her supportive letters, even from

prison. Id. at 581. But his ex-girlfriend commented that he had cheated on her with

one of her friends. Id. at 434. McWhorter’s teacher also began to testify about

McWhorter’s behavior on certain Mondays, but that testimony was excluded as

outside the scope of the pleadings. Id. at 562-63.

Trial counsel testified that, given their experience with Marshall County

juries, they would not have introduced evidence about McWhorter’s substance abuse

or his father’s and grandfather’s criminal histories. Id. at 227, 235, 242, 747-49. And

they made clear that they already knew about McWhorter’s drinking, id. at 746, the

DHR incident, id. at 203-04, his father’s criminal history, id. at 204, McWhorter’s

11

history of huffing gas and freon, id. at 205-06, 224, his lack of serious drug use or any

permanent problems from drug use, id. at 208, 225, his grandfather’s drinking, App.

Doc. 29 at 25, his car theft and sentence of probation, id. at 10-11, and that his

parents’ divorce was not “a big thing in Mr. McWhorter’s life,” CA11 App. Doc. 13 at

234-35, and that his father’s absence was “never presented as anything that was

significant,” id. at 265-66, before they made their decision about penalty-phase

strategy. They explained that they only interviewed the people that McWhorter or

his family recommended might offer testimony favorable to him, id. at 197-98, 250, a

list that did not include any of McWhorter’s friends, id. at 184, 227-28.

Further, at the hearing, McWhorter refused to waive attorney-client privilege,

so his trial counsel were unable to reveal exactly what McWhorter had told them

during their many conversations with him. Id. at 719-20. Thus, they could say only

generally that McWhorter told them “about his family, his background his education.

He told [them] all about himself leading up to this event. … Just an all-around,

thorough discussion of everything that [they] considered might have even been

relevant.” Id. at 735-36.

Much of the Rule 32 record is taken up by arguments about whether

statements made during jury deliberations are admissible under Alabama law. At

first the Rule 32 court excluded all of Burns’s statements made during jury

deliberations. CA11 App. Doc. 13 at 51. Later, because Burns had not answered as

McWhorter wished, he asked the court to reconsider its earlier ruling, id. at 82, but

the court refused, id. at 91. Just a short while later, McWhorter again tried to elicit

12

testimony from Burns about her jury-deliberation statements, despite the court’s

ruling. After the objection, McWhorter pleaded, “I do firmly believe that the Court

should reconsider its earlier ruling.” Id. at 107.

Realizing the import of the testimony to McWhorter and accepting its

uncertainty about the correct answer in the throes of the hearing, the court modified

its earlier ruling. Out of an abundance of caution, it stated, “I am going to allow you

to let these other two jurors testify.” Id. at 116. But the court made very clear, “I am

not going to say that I am going to consider it. I will let you guys submit, you know,

any law on just this issue in brief, but I am going to let you go ahead and present it

during this, and we’ll pick it up from there.” Id. The court also clarified that even this

provisional grant was only as to whether “Ms. Burns had shared” the statements “to

prove what Ms. Burns believed;” id. at 587-88, the statements were not even

provisionally accepted to prove prejudice, id. at 587, 592. When the State asked for

an exception to preserve the issue, the court answered, “Absolutely. And I certainly

understand. And you may be right,” and added that they might “find out [the correct

answer] at the close of this on appeal.” Id. at 142-43. And McWhorter agreed that, if

the court was unsure, “the proper course would be to admit the testimony with the

understanding that the Court can always decide later that it should not properly be

the subject of consideration rather than exclude the testimony and run the risk that

it was improperly excluded.” Id. at 591.

After reviewing the law, the Rule 32 court held that Burns’s statements during

jury deliberations were not “extraneous evidence” and were thus not admissible

13

under Alabama Rule of Evidence 606(b). In its order, the Rule 32 court explained that

it had McWhorter to elicit testimony about “so-called extraneous evidence”—Burns’s

story about her father during jury deliberations. The court then held, however, that

“Juror Burns’s story was not extraneous evidence under Alabama law,” and was

therefore “inadmissible under Rule 606(b) of the Alabama Rules of Evidence.” App.

Doc. 10 at 1124-25 n.2 (quoting Bethea v. Springhill Mem’l Hosp., 833 So. 2d 1, 8 (Ala.

2002)). The court then analyzed the evidence without considering that improper

testimony and concluded that McWhorter had not met his burden to prove either that

Burns had intentionally lied during voir dire or that he had been prejudiced by that

lack of information. The trial court denied McWhorter’s state post-conviction petition

and McWhorter appealed to the Alabama Court of Criminal Appeals.

On the impartial-jury claim, the Court of Criminal Appeals agreed with the

Rule 32 court both that McWhorter had failed to prove that Burns had not responded

truthfully, McWhorter v. State, 142 So. 3d 1195, 1218-19 (Ala. Crim. App. 2011), and

that he “failed to establish prejudice,” id. at 1219-20. The court therefore affirmed the

decision below and held McWhorter was “due no relief on this claim.” Id. at 1220. The

Court of Criminal Appeals also held that McWhorter “was due no relief on his claim

that his trial counsel was ineffective” at the penalty phase. Id. at 1250. It stated that

“[t]he circuit court’s finding [were] supported by the record and law,” distinguished

Wiggins v. Smith, 539 U.S. 510 (2003), and Williams v. Taylor, 529 U.S. 362 (2000),

and found “no error in the circuit court’s conclusion that counsel’s performance was

not deficient.” Id. at 1245, 1249. It then independently reweighed the aggravating

14

and mitigating circumstances—including the evidence that was presented at the Rule

32 hearing—and found it “would have had no impact on the sentence.” Id. at 1250.

The Court of Criminal Appeals also explicitly affirmed the Rule 32 court’s

conclusion that Burns’s statements during jury deliberations were inadmissible and

could not be considered: “Juror [Burns’s] story about her father does not qualify under

the exception for ‘extraneous information.’ Therefore, it is insulated from inquiry and

cannot form the basis of a valid claim for postconviction relief under Rule 32.” Id. at

1223 (citing Ala. R. Evid. 606(b)).

Although McWhorter sought discretionary certiorari review in the Alabama

Supreme Court, his petition was denied.

F. The federal courts deny habeas relief.

McWhorter sought habeas corpus relief through a petition filed in the United

States District Court for the Northern District of Alabama. The federal district court

denied relief on both McWhorter’s impartial-jury and ineffective-assistance-ofcounsel claims. The district court found that the State courts’ findings that

McWhorter had failed to establish intentional deception and had failed to establish

prejudice were “consistent with both Irvin and McDonough” and that McWhorter

“ha[d] not shown that the decision of the Alabama Court of Criminal Appeals was

contrary to, or an unreasonable application of either case.” McWhorter v. Dunn, No.

4:13-CV-02150-RDP, 2019 WL 277385, at *26 (N.D. Ala. Jan. 22, 2019). In reaching

that conclusion, the district court noted the state-law evidentiary ruling excluding

jury-deliberation statements and did not consider such statements in its analysis.

15

The district court also denied relief for the McWhorter’s ineffective-assistanceof-counsel claim, holding that “[t]he state court’s determination [that counsel’s

investigation and strategic choice were reasonable] was not unreasonable” and that

it was “not unreasonable to conclude that the additional evidence offered by

[McWhorter] would not have resulted in a different sentence.” Id. at *47-48. The

district court declined to issue a certificate of appealability.

The Eleventh Circuit granted a certificate of appealability on two issues:

whether McWhorter’s constitutional right to an impartial jury was violated because

Ms. Burns was a biased juror and whether trial counsel conducted an inadequate

penalty phase mitigation investigation. After briefing and oral argument, the

Eleventh Circuit affirmed.

REASONS FOR DENYING THE WRIT

McWhorter’s petition does not invoke any of the compelling reasons for

granting certiorari review set forth in Rule 10 of this Court’s rules.

I.

The Eleventh Circuit’s Decision’s Decision Plainly Establishes That

the Court Reviewed the Entire State Court Record.

McWhorter’s

first

question

presented

is

premised

on

a

plain

mischaracterization of the Eleventh Circuit’s decision. McWhorter insists that the

Eleventh Circuit “ignored” “key evidence” in the habeas record (Pet. at 17), but the

court’s opinion clearly identified the evidence that McWhorter contends was ignored:

the testimony of juror Stonechypher (App. 5, 19-20). While the Eleventh Circuit did

hold that it did not have to decide the underlying evidentiary question of whether

16

Stonecypher’s testimony could be considered under Alabama Rule of Evidence 606(b),

the court’s determination rested on the fact that “Ms. Burns’s testimony about her

state of mind during voir dire provides evidence to support the Rule 32 court’s factual

findings and credibility

determinations,”

based on “Ms.

Burns’s lack of

understanding, both at trial and years later at the Rule 32 hearing.” (App. 18-20.)

The Eleventh Circuit’s decision clearly outlined and identified the substance of

Stonecypher’s testimony—the evidence McWhorter contends was ignored. (App. 5,

19-20.) Rather than ignore this evidence, the Eleventh Circuit observed that it need

not resolve the propriety of the state evidentiary ruling because Stonecypher’s

testimony would not change the outcome (i.e., the other evidentiary support for the

state court’s juror bias ruling in the state court record required affirmance). Such

analysis is plainly indicative of the court’s consideration of the weight and importance

of the Stonecypher evidence.

The Eleventh Circuit’s tack was akin to avoiding the resolution of an

exhaustion defense when the underlying claim clearly lacks merit. See 28 U.S.C.

§ 2254(b)(2). Rather than decide an issue involving application of a state court

evidentiary rule to evidence, the court determined that it need not address the state

court’s procedural rulings because doing so would not alter the outcome of the federal

proceeding. This was not the Eleventh Circuit ignoring evidence in the state court

record; rather, it was the Eleventh Circuit exercising appropriate deference and

comity by refusing to unnecessarily review state law matters in a federal habeas

proceeding. The court was right not to do so, because invading the province of

17

Alabama’s evidentiary rules and rulings would not have advanced a legitimate

federal interest or purpose.

As correctly noted by the Eleventh Circuit, a state court reaches an

“unreasonable determination of the facts” only “when the direction of the evidence,

viewed cumulatively, was ‘too powerful to conclude anything but [the petitioner’s

factual claim],’ and when a state court’s finding was ‘clearly erroneous.’” App. 14

(quoting Landers v. Warden, 776 F.3d 1288, 1294 (11th Cir. 2015), quoting in turn,

Miller-El v. Dretke, 545 U.S. 231, 265 (2005); Wiggins v. Smith, 539 U.S. 510, 529

(2003)). The court’s determination that the other evidence in the state court record

would require affirmance of the district court’s denial of relief as to McWhorter’s

juror-bias claim, within this proper legal standard, constituted an ordinary

application of law to the facts that is not appropriate for this Court’s certiorari review.

Finally, pursuant to this Court’s Rule 15(2), the State notes that McWhorter’s

assertion (at 19) that “the Alabama trial court admitted [Stonecypher’s] testimony for

the limited purpose of determining Burns’s state of mind” ignores the finding in the

state court’s final ruling that this testimony was not admissible under Alabama Rule

of Evidence 606. As the court explained, McWhorter’s juror-bias claim was “based on

the same so-called extraneous evidence: Juror Burns’s story of the circumstances

surrounding her father’s death,” but her “story was not extraneous evidence under

Alabama law,” and was thus inadmissible. App. 185-86 n.2; see also App. 66 ( “Juror

[Burns’s] story about her father” was inadmissible under Rule 606(b) and thus was

18

“insulated from inquiry and [could] not form the basis of a valid claim for

postconviction relief under Rule 32.”).

II.

The State Court’s Ruling on Whether the Prejudice Prong of

McWhorter’s Juror Bias Claim Was Not Contrary to Federal Law.

In affirming the denial of relief as to McWhorter’s juror-bias claim, the

Eleventh Circuit recognized that the state court resolution was based on “the

nondisclosure’s ‘effect, if any, to cause the party to forgo challenging the juror for

cause or exercising a peremptory challenge to strike the juror.’” App. at 22 (quoting

McWhorter, 142 So. 3d at 1211). This standard is more favorable than the one set

forth in McDonough. Alabama law says a challenger need show only that the

disclosure of the missing information “would have caused the party either to

(successfully) challenge the juror for cause or to exercise a peremptory challenge to

strike the juror.” Ex parte Dobyne, 805 So. 2d 763, 773 (Ala. 2001) (emphasis added).

Federal law affords relief to only those defendants who could have successfully

challenged for cause. That is precisely why McWhorter told the state postconviction

trial court that “Alabama law is at least as favorable to Casey [McWhorter]’s claim

as federal law on this point, and therefore we have not cited to federal cases in [our

juror-bias claim].” CA11 App. Doc. 17 at 25 n.6.

At its core, McDonough establishes that an impartial jury is one “capable and

willing to decide the case solely on the evidence before it.” McDonough Power Equip.

v. Greenwood, 464 U.S. 548, 554 (1984). The Eleventh Circuit’s decision plainly

establishes that both its decision and the state court decision were rooted in ensuring

19

the integrity of this definition. App. at 21-24. Further, the Eleventh Circuit’s decision

paid the appropriate deference to the trial court’s discretion as mandated in both

McDonough and 28 U.S.C. § 2254. See McDonough, 464 U.S. at 556 (quoting

Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940)).

Finally, certiorari review is unwarranted because the Eleventh Circuit’s

approval of the state court’s application of McDonough’s second prong was only an

additional ground for affirmance. This is because “Mr. McWhorter failed to carry his

burden on the first prong of the McDonough test” and the court “need not reach the

merits of whether there would have been a valid basis to challenge Ms. Burns for

cause.” App. at 24. Under these circumstances, certiorari review of this aspect of the

Eleventh Circuit’s case would be wasteful of the Court’s time, as review is

unnecessary to an affirmance of the lower court’s decision.

III.

McWhorter’s Ineffective-Assistance-of-Counsel Claim Lacks Merit and

Does Not Present a Compelling Issue Warranting Certiorari Review.

In support of his final question presented, McWhorter claims that his trial

counsel’s mitigation investigation was inadequate. This fact-bound request for error

correct presents no ground for certiorari review, not least of all because the state court

reasonably applied this Court’s precedent.

To overcome the strong presumption that counsel acted competently,

Strickland v. Washington, 466 U.S. 668, 690 (1984), a petitioner must show both that

his counsel failed to perform “reasonabl[y] considering all circumstances,” id. at 688,

and must prove the “reasonable probability that, absent the errors, the

20

sentencer … would have concluded that the balance of aggravating and mitigating

circumstances did not warrant death,” id. at 695. And the AEDPA-overlay creates a

doubly deferential standard that precludes federal habeas relief if even one fairminded jurist could believe that even one competent counsel could have performed as

McWhorter’s counsel did under the circumstances at the time. See Harrington, 562

U.S. 86, 102 (2011); Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000).

This case clears that hurdle with ease.

A. The state court reasonably concluded that McWhorter’s counsel

formed a reasonable mitigation strategy based on a reasonable

investigation.

Counsel has a duty to conduct reasonable investigations, basing strategic

choices on those reasonable investigations. Strickland, 466 U.S. at 691. After even a

preliminary investigation, counsel can make strategic decisions about which lines of

mitigation evidence to investigate further. See Chandler, 218 F.3d at 1318 (“[C]ounsel

need not always investigate before pursuing or not pursuing a line of defense.

Investigation (even a nonexhaustive, preliminary investigation) is not required for

counsel reasonably to decline to investigate a line of defense thoroughly.”). These

kinds of strategic decisions are virtually unchallengeable, Strickland, 466 U.S. at

690, especially when they are made by experienced trial counsel. Thus, to assess the

reasonableness of counsel’s strategic decisions, the state court correctly started with

the steps counsel took to investigate.

The Rule 32 court found, and the CCA affirmed, that in this case “[e]xperienced

trial counsel collected the comprehensive background information … and [then]

21

formulated a reasonable strategy that they believed could save McWhorter’s life.”

McWhorter v. State, 142 So. 3d 1195, 1237 (Ala. Crim. App. 2011) (quoting C. 1163–

64). Both the investigation and resulting decision were reasonable. The investigation

involved interviewing McWhorter multiple times as well as his mother, his aunt, and

his sister—more than once in person as well as through follow-up conversations on

the phone. App. Doc. 13 at 246, 716, 744-46. From the interviews with McWhorter’s

family, counsel learned about “McWhorter’s family history, his medical and mentalhealth history, his substance-abuse history, his criminal history, and his education

history.” McWhorter, 142 So. 3d at 1233; see also CA11 App. Doc. 10 at 46. Though

McWhorter refused to waive attorney-client privilege so specifics were not divulged,

CA11 App. Doc. 13 at 719-20, McWhorter generally told his counsel about “his family,

his background his education … all about himself leading up to the event. … Just an

all-around, thorough discussion of everything that [counsel] considered might have

been relevant,” id. at 735-36.

Counsel also employed a neuropsychologist to examine McWhorter and began

conferencing with him in October 1993, nearly five months before trial. Id. at 223;

CA11 Supp. App. Doc. 3 at 2-3. The neuropsychologist’s evaluation found “no evidence

of psychological distress/confounding mental disorder,” CA11 App. Doc. 13 at 378;

CA11 Supp. App. Doc. 10 at 2, no evidence of brain damage, CA11 App. Doc. 13 at

364-65, 394-95, and no other useful mitigation evidence, id. at 221-226; CA11 App.

Doc. 10 at 47. Further, counsel learned from the evaluation that McWhorter had an

IQ of 88—with a performance IQ of 90 and a verbal IQ of 87. CA11 App. Doc. 13 at

22

233, 918-19; CA11 Supp. App. Doc. 9; cf. Grayson v. Thompson, 257 F.3d 1194, 1227

(11th Cir. 2001) (explaining that “a verbal IQ score of 88, a performance IQ of 80, and

a full scale IQ of 83, which suggests average intellectual functioning” could be

harmful at the mitigation stage). Counsel obtained medical records from McWhorter’s

suicide attempt, which revealed that McWhorter had never before been hospitalized

nor had surgery. CA11 Supp. App. Doc. 11 at 1. They also had McWhorter’s youthful

offender investigation report, which detailed his juvenile record as well as a brief

health, educational, and employment history, Supp. App. Doc. 1 at 3-5, and spoke to

the probation officer who authored it, CA11 App. Doc. 13 at 184-85. Counsel also tried

to speak to the mother of one of McWhorter’s friends who he had lived with for a little

while shortly before the murder, id. at 262, and the other boys who had pleaded guilty

to the murder, id. at 717-18, but counsel’s attempts proved unsuccessful.

In short, the investigation was thorough and reasonable. This Court has

cautioned that “[b]eyond the general requirement of reasonableness, specific

guidelines are not appropriate.” Cullen v. Pinholster, 563 U.S. 170, 195 (2011)

(quoting Strickland, 466 U.S. at 688). And this case mirrors cases that found

investigations reasonable, such as Strickland, where counsel could “reasonably

surmise” that certain evidence “would be of little help,” 466 U.S. at 699, and Burger

v. Kemp, 483 U.S. 776 (1987), where counsel’s investigation was reasonable because

he interviewed all the witnesses brought to his attention, 483 U.S. at 794. Similarly,

here counsel reasonably investigated by relying on McWhorter and his three family

members and interviewing people the family members recommended counsel contact.

23

CA11 App. Doc. 13 at 197-98, 250. Counsel also “reasonably surmise[d]” that

testimony of McWhorter’s friends would have been unhelpful as, according to his

family, his friends were either in jail or part of the “Fo[]r Our Lord King Satan” gang,

id. at 227-28, and testimony about his father’s or grandfather’s alcoholism and

criminal history, about which counsel already knew, App. Doc. 29 at 25, would also

have been unhelpful because in Marshall County “[a] lot of people would uncharitably

view that as, well, like father, like son, or just came from the bad family,” App. Doc.

13 at 235, or think “the apple doesn’t fall too far from the tree,” id. at 749. As to

McWhorter’s substance abuse, counsel knew of it but also knew that it had not caused

any impairment. Counsel thus “reasonably surmised” that “the simple fact that a

person has used—has consumed alcohol or used drugs or supposedly huffed gas [does

not] in itself help[]. … [M]ost people who sit on juries [do not] find that to be a virtue.”

Id. at 227.

Thus, as the Rule 32 court found, trial counsel’s investigation yielded

“comprehensive background information.” App. at 74. McWhorter suggests that

counsel should have found more, faulting counsel for “not even discuss[ing] the

information elicited from the interview with McWhorter.” Pet. 25. That accusation is

particularly surprising, however, because counsel was precluded from eliciting that

information based on McWhorter’s refusal to waive attorney-client privilege. See

CA11 App. Doc. 13 at 719-20. McWhorter’s decision precluded his counsel from

answering “any of [the] questions pertaining to anything that [they] talked about,”

24

id. at 725. McWhorter thus cannot meet his burden to show that his counsel made

unreasonable investigative decisions.

Based on trial counsel’s reasonable investigation and their experience—a

combined 15 years and 35 felony trials, id. at 218-19, 702-03—they strategically

decided to focus on evoking sympathy for McWhorter’s family and arguing that he

was a good kid until he got involved with the wrong crowd, id. at 236-40, 245-46, 737.

Such strategy decisions were reasonable in light of the reasonable investigation upon

which they were based. Cf. Cullen, 563 U.S. at 197 (“[I]t certainly can be reasonable

for attorneys to conclude that creating sympathy for the defendant’s family is a better

idea because the defendant himself is simply unsympathetic.”). And the testimony at

the penalty phase tracked that strategy. His mother and aunt testified that he was a

good kid until he started hanging out with the co-conspirators. App. Doc. 26 at 31, 3840. McWhorter’s former employer and a former co-worker both testified that

McWhorter had been a good kid, hard-working, and dependable. Id. at 17-24. Such a

strategy was reasonable, especially given the uphill battle counsel faced—the

confession, guilty pleas by two of his co-conspirators, graphic photos and a graphic

video of the crime scene, as well as evidence that McWhorter and his friends were

involved in a gang. App. Doc. 13 at 738-41.

The federal courts below correctly concluded that the state court reasonably

applied this Court’s precedent when it determined that counsel had performed a

reasonable investigation and then chose a reasonable mitigation strategy based on

that investigation. In short, at least one fair-minded jurist could believe that at least

25

one competent counsel could have performed as McWhorter’s counsel did under the

same circumstances.

B. The state court reasonably concluded that McWhorter was not

prejudiced by the lack of additional evidence during his penalty

phase.

To show prejudice a petitioner must show that “but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland, 466 U.S.

at 694. When the ineffectiveness is alleged to have occurred during the penalty phase

of trial, a court must reweigh “the totality of the available mitigation evidence—both

that adduced at trial, and the evidence adduced in the habeas proceeding” against

the evidence in aggravation. Williams v. Taylor, 529 U.S. 362, 397-98 (2000). Only if

there is a reasonable probability that after the reweighing the sentencer would have

concluded that the new balance did not warrant death can a court find prejudice.

Strickland, 466 U.S. at 695. Here the state court reasonably determined that there

was not a reasonable probability that the outcome would have been different if the

additional evidence had been presented at McWhorter’s penalty phase. The state

court’s prejudice determination was reasonable for three reasons: (1) the additional

evidence was weak, cumulative, or double-edged; (2) the unknown, additional

evidence would not have altered counsel’s decision about what evidence to present or

strategy to employ; and (3) the state court properly considered the nature of the crime

in its prejudice assessment.

1. All of the additional evidence presented to the Rule 32 court was either weak

or cumulative or double-edged such that it did not alter the balance of aggravating

26

and mitigating circumstances. McWhorter argues that the jury should have been

presented with evidence of McWhorter’s “dire family situation when he was a young

child” and his gas-huffing. Pet. at 27. But nearly all of that evidence is double-edged.

Juries react different ways to a disadvantaged childhood. See Burger v. Kemp, 483

U.S. 776, 794 (1987). And a “showing of alcohol and drug abuse … can harm a capital

defendant as easily as it can help him at sentencing.” Reed v. Sec’y, Fla. Dep’t of Corr.,

593 F.3d 1217, 1247 (11th Cir. 2010). Counsel testified that in Marshall County juries

are not sympathetic to defendants who abuse drugs or alcohol, especially when, as

here, there is no lasting brain damage from the abuse. App. Doc. 13 at 227. Counsel

also testified that Marshall County juries often view evidence of familial criminal

history negatively, concluding that “that apple must not have fallen too far from the

tree.” Id. at 749.

And some of the evidence was not only double-edged, it also undercut the

picture of McWhorter’s life that he now tries to paint for this Court. For instance,

McWhorter’s step-father’s testimony described a supportive family that struggled

with a difficult child. Id. at 307-09, 357, 468, 475, 482-85, 492. The stepfather cared

for McWhorter as if he were his own son; he even tried to adopt him. Id. at 482-84.

He described how he loved McWhorter and went out of his way to help him, and also

testified about how McWhorter’s aunt did everything she could to keep McWhorter

on the straight and narrow. Id. at 473-75, 492. Thus, McWhorter’s stepfather’s

testimony cast McWhorter as someone who took advantage of a far from perfect but

loving family. For example, when his stepfather allowed McWhorter and some friends

27

to camp at his farm, they instead absconded to Bay Minette, stole a Porsche on the

way, and got arrested. Id. at 318, 476. This testimony would have cut sharply against

the victim-of-an-unloving-family narrative McWhorter now promotes. It was

reasonable for the state courts to determine that this weak and uneven mitigation

evidence would not have altered the outcome of this case.

McWhorter did submit (though he did not argue before this Court that it was

relevant to the prejudice analysis) some evidence that would have been compatible

with the reasonable strategy that counsel chose, such as the teacher and coach who

testified that he was a hard-working, good kid. Id. at 545-46, 548, 561-62. But that

evidence was cumulative of evidence that was presented during the penalty phase of

trial. And “counsel is not required to present all mitigation evidence, even if

additional mitigation evidence would have been compatible with counsel’s strategy.”

Putman v. Head, 268 F.3d 1223, 1244 (11th Cir. 2001). A petitioner cannot establish

prejudice if the additional mitigating evidence is cumulative of the mitigation

evidence presented. See Wong v. Belmontes, 558 U.S. 15, 22-23 (2009).

And as the Eleventh Circuit noted, there is no reason to think counsel should

have known to contact these additional witnesses:

It does not appear counsel knew to contact Ms. Battle, Mr. Baker, or Mr.

Burns. Rather, when counsel met with Mr. McWhorter’s family to gather

information, the family explained that McWhorter “had a lot of friends”

and his friends’ parents “bragged about how well-behaved he was.”

These family members did not, however, provide any additional

information. Nor is there other information in the record that shows

counsel should have plausibly known to pursue these specific witnesses.

28

App. at 29-30. Therefore, the court could “not say the failure to investigate the

potential mitigation testimony of Ms. Battle, Mr. Burns, and Mr. Baker was

unreasonable.” Id.

Given that nearly all the additional evidence is double-edged, some of it

contradicts the picture McWhorter now tries to paint, and the rest is either

cumulative or weak, the CCA reasonably concluded that there was no reasonable

probability that the additional evidence would shift the balance.

Moreover, to show prejudice, McWhorter must show that the jury would have

actually heard the additional evidence, Gilreath v. Head, 234 F.3d 547, 551 n.12 (11th

Cir. 2000) (“[T]o show prejudice, Petitioner must show that—but for his counsel’s

supposedly unreasonable conduct—helpful character evidence would have been

heard by the jury.”), or that it would have caused his counsel to change their penaltyphase strategy, id. (“[When] a defendant alleges that his counsel’s failure to

investigate prevented his counsel from making an informed tactical choice, he must

show that knowledge of the uninvestigated evidence would have altered his counsel’s

decision.” (quoting Gray v. Lucas, 677 F.2d 1086, 1093 (5th Cir. 1982)). The record is

devoid of any evidence showing that any of the unknown, additional evidence would

have been presented or would have caused his counsel to change their strategy. In

fact, all the evidence points the other way. Counsel testified that they would not have

offered evidence of huffing or alcohol or drug abuse absent lasting mental health

issues, CA11 App. Doc. 13 at 226-27, 747, that they would not have offered evidence

that McWhorter’s father and grandfather were violent alcoholics who had been

29

convicted of rape and murder respectively, id. at 235, 748-49, 766, that they would

not have hired or used a mitigation specialist, id. at 248, 766. In sum, none of “the

bases underlying his counsel’s tactical choice to pursue or forego a particular course

would have been invalidated.” Gray, 677 F.2d at 1093. Because McWhorter failed to

meet his burden to show that the evidence would have been presented, he cannot

argue that he was prejudiced because it was not admitted.

Finally, given the cold and calculated nature of McWhorter’s murder (he

planned for three weeks and waited in his victim’s home for three hours while

preparing for the murder, CA11 Supp. App. Doc. 6 at 26), his depraved behavior when

shooting the victim (firing the first shot as well as the kill-shot directly to the head,

id. at 25), his callousness following the murder (he was upset only because there was

not more money, CA11 Supp. App. Doc. 7 at 2), and the overwhelming evidence of his

guilt (his confession, guilty pleas of his co-conspirators, testimony of his friend, and

video of the crime scene, CA11 App. Doc. 13 at 738-41), the CCA was not unreasonable

when it found, after an independent and complete review, “that the mitigating

evidence presented at the postconviction hearing—but omitted from the penalty

phase of McWhorter’s capital-murder trial—would have had no impact on the

sentence in this case.” McWhorter, 142 So. 3d at 1250. Under AEDPA, this Court

should defer to that reasonable conclusion and deny McWhorter’s claim.

McWhorter claims that the Eleventh Circuit found that trial counsel “did not

even understand the meaning of mitigation evidence.” Pet. at 24-25. McWhorter

again obviously misreads the opinion. The court merely stated in a footnote “that to

30

the extent Mr. McWhorter’s trial counsel suggested this sort of evidence fell outside

the universe of acceptable mitigation evidence, that understanding is at odds with

our precedent.” App. 30 n.4. But the court never found, because McWhorter never

proved, that counsel labored under any misconception of the law. The record showed

that counsel understood the purpose of mitigation evidence, they spent considerable

time gathering such evidence, and they presented a reasonable mitigation case to the

jury. That the jury and judge still decided that McWhorter’s crime warranted the

death penalty speaks only to the heinousness of his actions, rather than the

performance of his counsel.

Thus, unlike in Wiggins, or Burger v. Kemp, 483 U.S. 776 (1987), counsel’s

determination that some mitigation evidence would be double-edged determination

was made by defense counsel after their mitigation investigation had discovered the

potential mitigation evidence. Here, the fact that the mitigation evidence would have

“been at odds with the defense’s strategy,” Burger, 483 U.S. at 793, was a decision

made by informed trial counsel, not by a court attempting to weigh previously

unknown mitigation evidence. Whereas this Court has taken issue with strategic

decisions made without adequate investigation, that is clearly not the situation in

this case. The Eleventh Circuit’s footnote simply clarified that the sort of evidence

counsel did not put forward cannot be deemed categorically outside the universe of

mitigation evidence, not that McWhorter’s counsel took that view nor that such

evidence must always be presented. Here, McWhorter’s counsel made a strategic

decision to forego certain types of known mitigating evidence (including extent and

31

severity) based on a reasonable judgment that the evidence would not be mitigating

in this case, rather than a belief that it could never be mitigating.

For example, turning to McWhorter’s claim that trial counsel missed

information in mitigation pertaining to child abuse, substance abuse, difficult home

life, and mental health, the lower court noted that McWhorter’s counsel did have

knowledge of this information. As the lower court “easily” conceded, counsel made a

strategic decision not to introduce it:

We can easily do away with Mr. McWhorter’s claim that substance abuse

evidence and evidence of his biological father’s problems should have

been presented. Counsel testified that they chose not to present evidence

of Mr. McWhorter’s substance abuse, or about his family members’

substance abuse, or of his biological father’s personal problems because

it may have done more harm than good. This “strategy choice was well

within the range of professionally reasonable judgments.” Strickland,

466 U.S. at 699, 104 S. Ct. at 2070. Similarly, counsel testified about

their reasons for not presenting mental health evidence. Even though

they hired a neuropsychologist, counsel did not have Dr. Robbins testify

because, in Robbins’s opinion, Mr. McWhorter’s neuropsychological

testing results were “unremarkable.” Counsel worried that if Dr.

Robbins testified “there’s absolutely nothing wrong” with Mr.

McWhorter, that would undermine the possibility that the jury might

think he “must have been crazy” to commit such a senseless crime.

Id. at 788 (App. at 32). For these reasons, the court held that counsel’s “choice to

present evidence consistent with their ‘good kid, wrong crowd’ theory and their choice

not to call Dr. Robbins were each tactical . . . and counsel’s investigation into these

witnesses was not unreasonable.” Id. at 788–89 (App. at 33).

In sum, every state and federal court to address McWhorter’s Strickland claim

has rejected it. Counsel conducted a reasonable mitigation investigation and made a

reasonable presentation of evidence as the product of sound, strategic choices.

32

Counsel made strategic decisions to present evidence that would support a “good boy,

wrong crowd” strategy. McWhorter’s fact-specific complaints of misapprehension or

misapplication of Strickland do not implicate a circuit split, do not implicate a failure

to follow this Court’s clearly established holdings, and do not present an opportunity

for this Court to advance federal habeas corpus or Sixth Amendment jurisprudence.

For these reasons, McWhorter’s case is not the rare case in which certiorari is

appropriate.

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

STEVE MARSHALL

Alabama Attorney General

EDMUND G. LACOUR JR.

Alabama Solicitor General

/s James R. Houts

JAMES ROY HOUTS*

Deputy Alabama Attorney General

James.Houts@AlabamaAG.gov

MORGAN B. SHELTON

Assistant Alabama Attorney General

Morgan.Shelton@AlabamaAG.gov

OFFICE OF THE ALA. ATTY GEN.

501 Washington Avenue

Montgomery, Alabama 36130

(334) 242-7300

Counsel for Commissioner/Respondent

May 10, 2021

*Counsel of Record

33