Opposition Brief — Joe Nathan James, Petitioner v. Terry Raybon, Warden, et al.

Supreme Court briefJan 22, 2021

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Text

No. 20-708

In the

Supreme Court of the United States

──────────────────────────

JOE NATHAN JAMES,

Petitioner,

v.

STATE OF ALABAMA,

Respondent.

──────────────────────────

On Petition for Writ of Certiorari

to the United States Court of Appeals

For The Eleventh Circuit

──────────────────────────

APPENDIX

──────────────────────────

STEVE MARSHALL

Alabama Attorney General

EDMUND G. LACOUR JR.

Alabama Solicitor General

RICHARD D. ANDERSON*

Assistant Attorney General

*Counsel of Record

January 22, 2021

State of Alabama

Office of the Attorney General

501 Washington Avenue

Montgomery, AL 36130-0152

(334) 242-7300 Office

(334) 353-8400 Fax

richard.anderson@alabamaag.gov

TABLE OF CONTENTS

Appendix A

James’ Motion for Certificate of Appealability

Appendix B

James’ Eleventh Circuit Brief

APPENDIX A

James’ Motion for Certificate of

Appealability

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No. 17-11855

In the United States Court of Appeals

for the Eleventh Circuit

__________

JOE NATHAN JAMES,

PETITIONER-APPELLEE

v.

WARDEN, HOLMAN CORRECTIONAL FACILITY,

JEFFERSON DUNN, COMMISSIONER,

ALABAMA DEPARTMENT OF CORRECTIONS, ET AL.

__________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA, NO. 2:10-CV-02929-CLS-HGD

HON. C. LINWOOD SMITH, PRESIDING

__________

PETITIONER’S APPLICATION FOR CERTIFICATE OF

APPEALABILITY

WESLEY A. VAN WINKLE

ATTORNEY AT LAW

P.O. BOX 5216

BERKELEY, CA 94705-0216

TELEPHONE: (510)848-6250

FACSIMILE: (510)848-6251

E-MAIL: tacitus@pacbell.net

COUNSEL FOR PETITIONER/APPELLANT

JOE NATHAN JAMES

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CERTIFICATE OF INTERESTED PERSONS

AND CORPORATE DISCLOSURE STATEMENT (CIP)

Undersigned counsel certifies that the following persons may have an

interest in these proceedings:

Alper, Ty – State Co-Counsel for Petitioner-Appellant

Anderson, Richard D. – Deputy Attorney General, Counsel for RespondentAppellee (federal proceedings)

Brower, William – State Trial Counsel (pre-trial proceedings)

Dunn, Jefferson – Commissioner of Alabama Department of Corrections,

Respondent-Appellee

James, Joe Nathan – Petitioner-Appellant

McCormick, Hon. Michael – Trial Judge (State Criminal Trial and Rule 32)

McIntire, Jeremy– Deputy Attorney General (State Proceedings)

Smith, Hon. C. Lynwood – Judge, District Court for the Northern District of

Alabama

Smith, Faith Hall – Victim

Van Winkle, Wesley A. – Counsel for Petitioner-Appellant

Vinson, Hon. Virginia – State Trial Counsel (lead)

Warren, Gordon – State Trial Counsel (associate)

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Wood, John – State Co-Counsel for Petitioner-Appellant

I certify that the foregoing persons appear to me to fall within the scope of

11th Circuit Rule 26.1-2(a) and may have an interest in these proceedings.

Dated: August 9, 2017

/s/ Wesley A. Van Winkle

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TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PARTIES AND CORPORATE DISCLOSURE STATEMENT

(CIP) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF ISSUES ON WHICH A CERTIFICATE IS REQUESTED . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

FACTUAL SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

I. A Certificate Of Appealability Must Issue When A Petitioner

Surpasses The Absence Of Frivolity Standard Under

28 U.S.C. § 2253(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

II. The Traditional Deference Afforded to State Courts Is Not

Merited and Relief Is Warranted Under 28 U.S.C. § 2254(d)(2)

Because The Circuit Court Adopted The State’s Proposed Findings

Without Independently Evaluating Those Findings . . . . . . . . . . . . . . . . . . 11

III. Jurists of Reason Could Conclude that Petitioner was

Deprived of Effective Assistance of Counsel at the Guilt Phase. . . . . . . . . 13

A. Standards of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

B. Petitioner was Deprived of Effective Assistance at the

Guilt Phase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

1. Counsel’s Performance Fell Below the Standard of Care.. . . . . . 15

2. Counsels’ Incompetent Performance Prejudiced Petitioner’s

Case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

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3. The Order’s Other Findings and Conclusions on Claim I

Were Unreasonable and Clearly Erroneous. . . . . . . . . . . . . . . . . . . . 28

a. The Atlanta Evidence... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

b. The Mental Health Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . 29

IV. Trial Counsel was Plainly Ineffective in the Sentencing Phase

of Petitioner’s Trial, and the State and District Courts’ Conclusions

to the Contrary Were Erroneous and Unreasonable... . . . . . . . . . . . . . . . . . 34

V. Petitioner Should Have Been Granted an Evidentiary Hearing... . . . . . 57

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

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TABLE OF AUTHORITIES

FEDERAL CASES

Anderson v. Bessemer City, 470 U.S. 564 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

Barefoot v. Estelle, 463 U.S. 880 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Battenfield v. Gibson, 236 F.3d 1215 (10th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 43

Blanco v. Singletary, 943 F.2d 1477 (11th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 42, 43

Bobby v. Van Hook, 558 U.S. 4 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 41

Brownlee v. Haley, 306 F.3d 1043 (11th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 35

Carter v. Bell, 218 F.3d 581 (6th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Chandler v. United States, 218 F.3d 1305 (11th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Code v. Montgomery, 799 F.2d 1481 (11th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Depetris v. Kuykendall, 239 F.3d 1057 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

United States v. El Paso Natural Gas, 376 U.S. 651 (1964). . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Evans v. Whitley, 855 F.2d 631 (9th Cir, 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Goodwin v. Balkcom, 684 F.2d 794 (11th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Hughes v. Dretke, 412 F.3d 582 (5th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

James v. State, 532 U.S. 1040 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 20, 27, 31

Jefferson v. Upton, 560 U.S. 292 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 60

Johnson v. Baldwin, 114 F.3d 835 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Melton v. Fla. Dept. Of Corr., 778 F.3d 1234 (11th Cir. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . 10

Miller-El v. Cockrell, 537 U.S. 322 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Roberts v. Dretke, 381 F.3d 491 (5th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

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Rompilla v. Beard, 545 U.S. 374 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 36, 41, 46

Schriro v. Landrigan, 550 U.S. 465 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Sears v. Upton, 561 U.S. 945. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Slack v. McDaniel, 529 U.S. 473 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Strickland v. Washington, 466 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 16, 17, 24,

27, 37, 42, 45

Thompson v. Wainwright, 787 F.2d 1447 (11th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Townsend v. Sain, 372 U.S. 293 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Wiggins v. Smith, 539 U.S. 510 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 35, 36, 46

Williams v. Taylor, 529 U.S. 362 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 35, 36, 46, 49,

50, 51

STATE CASES

Brooks v. State, 630 So.2d 160 (Ala.Crim.App.1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Dickerson v. State, 360 So.2d 1053 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Lackey v. State, 615 So.2d 145 (Ala. Crim. App. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Peraita v. State, 897 So.2d 1161 (Ala. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Sashington v. State, 325 So.2d 205 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Wright v. State, 641 So.2d 1274 (Ala.Crim.App. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26

FEDERAL STATUTES AND RULES

28 U.S.C. § 2253 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 10

28 U.S.C. §2244. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

28 U.S.C. § 2254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4, 11, 12

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Fed. R. App. P. 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 6, 7

Fed. R. App. P. 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

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INTRODUCTION

Petitioner Joe Nathan James respectfully requests a certificate of

appealability from the district court’s Memorandum Opinion and Orders of

September 30, 2014, denying and dismissing all claims in his Petition for Writ of

Habeas Corpus, denying Petitioner’s motion for an evidentiary hearing, and

denying a certificate of appealability. District Court Doc. 27.

Habeas corpus relief is compelled under 28 U.S.C. § 2254(d)(1) and (2)

because the state court ignored or unreasonably applied clearly established federal

law and unreasonably determined the facts in denying Petitioner’s claims of

ineffective assistance of counsel. Petitioner showed that in this capital case trial

counsel performed no investigation and presented no witnesses in either the guilt

or penalty phases. Petitioner also showed that but for these errors it was at least

reasonably probable that a more favorable result would have been obtained in his

case. Petitioner also showed that the state evidentiary hearing was little more than

a kangaroo court in which the Attorney General effectively made all the rulings,

which the evidentiary hearing judge routinely signed without reading. The district

court erred in dismissing the petition and denying Petitioner an evidentiary

hearing.

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STATEMENT OF ISSUES ON WHICH A CERTIFICATE IS REQUESTED

Petitioner respectfully requests that this court issue a certificate of

appealability pursuant to Fed. R. App. P. 22(b), 11th Circuit Rule 22-1, and 28

U.S.C. § 2253, on the following issues:

1. Whether James’s counsel were ineffective in the guilt phase of his trial

for failing to conduct any substantial investigation or present to the jury readily

available evidence, including, inter alia, evidence that James was not stalking the

victim, as the prosecution contended, but that the victim actually had been stalking

James and his fiancee, had attacked them with a tire iron while they waited in line

at a fast-food drive-through window, and had instigated a high-speed automobile

chase of James’s fiancee and her infant child.

2. Whether James’s counsel were ineffective in the penalty phase of his

trial by not investigating and presenting to the jury readily available evidence

regarding James chaotic upbringing and family background; his genetic

predisposition for mental illnesses and other mental deficits; his medical,

psychiatric and neurological impairments, including but not limited to,

schizophrenic spectrum disorder, mood disorder, depression, and debilitating head

and brain trauma; his childhood history of profound neglect, abandonment, abuse

and instability, isolation and imprisonment; and his childhood exposure to

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neurotoxins, substance abuse and severe racial and ethnic discrimination, all of

which have direct bearing on Petitioner’s character, mental functioning and

disabilities and numerous other factors in mitigation.

3. Whether the state court deprived James of a procedurally fair and reliable

evidentiary hearing and whether the district court erred in denying an evidentiary

hearing altogether.

STATEMENT OF THE CASE

Petitioner was convicted and sentenced to death by the Tenth Judicial

Circuit Court in Jefferson County, Birmingham, Alabama, the Honorable Michael

W. McCormick, presiding. Petitioner was convicted of capital murder on June 17,

1999 and was sentenced to death on July 19, 1999. Petitioner timely appealed and

the Court of Criminal Appeals affirmed the judgment in all respects on April 28,

2000, sub nom. James v. State, 532 U.S. 1040 (2001) (USSC Docket No. 009007). Upon a writ of certiorari to the Alabama Supreme Court, that court also

affirmed the judgment in all respects on April 28, 2000, sub nom. James v. State,

788 So.2d 185 (2000).

On May 7, 2002, Petitioner filed a state petition for post-conviction relief

under Rule 32, thereby tolling the running of the one-year federal statute of

limitations with 14 days remaining, pursuant to 28 U.S.C. §2244(d)(1)(A). CR

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159, 233. On December 5, 2003, the court granted an evidentiary hearing with

respect to some of Petitioner’s claims, primarily claims of ineffective assistance of

counsel. CR Supp. 10. On June 6, 2004, an evidentiary hearing was held. In

essence, the evidence showed that counsel conducted virtually no investigation

into either the guilt or sentencing phases of the case and that had counsel done so,

substantial evidence could have been discovered and presented.

On October 28, 2004, the Circuit Court dismissed all Petitioner’s claims by

signing without alteration a 103-page proposed final order prepared by the

Respondent. CR Supp. 2; CR Supp. 270-372. Petitioner’s state appeals were all

ultimately denied on October 15, 2010, when the Alabama Supreme Court denied

certiorari.

On October 29, 2010, Petitioner filed a timely habeas corpus petition in the

District Court for the Northern District of Alabama, seeking relief pursuant to 28

U.S.C. §2254. The district court denied relief in a final judgment entered on

December 30, 2014. Order, 2:10-cv-02929-CLS-HGD, Doc. 27. The district

court also denied a certificate of appealability. Id., Doc. 27. On March 30, 2017,

the district court denied James’s motion to alter or amend the judgment. Id., Doc.

40.

James timely filed his notice of appeal to this Court on April 28, 2017. This

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Court has jurisdiction to determine whether to grant James a certificate of

appealability under 28 U.S.C. § 2253(c), Fed. R. App. P. 22(b), and 11th Cir. Rule

22-1.

FACTUAL SUMMARY

At Petitioner’s trial, the prosecution sought to show that Petitioner had

stalked his former girlfriend, Faith Hall Smith (hereinafter, “Hall”), and ultimately

killed her out of jealousy because he could not have her himself. The

prosecution’s evidence showed that Petitioner and Hall dated for a time in the

early 1990s, but broke up some time in late 1993 or early 1994. Trial RT1 147148. Hall’s mother and daughter testified that during their relationship Petitioner

was violent with Hall. Id., Trial RT2 18. Hall’s mother testified that Hall lived

with her, and that after they broke up Petitioner continued to stalk and harass Ms.

Hall so that Hall’s mother frequently had to “run him off.” Trial RT2 76. Hall’s

ex-husband testified that Petitioner was jealous of his relationship with Hall and

once threatened to kill them both. Trial RT2 25-26.

In August, 1994, Ms. Hall’s friend, Tammy Sneed, lived in the first-floor

apartment of a three-story building at 2208-A 6th Court, near the intersection of

23rd Street in downtown Birmingham. Id. 188, 212, 222. A woman named Bridget

Gregory lived in the second floor apartment immediately above Sneed’s

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apartment, and a woman named Trenicha Holyfield lived on the third floor above

Gregory. Id. 188. Gregory testified that on the evening of August 14, 1994, she

saw Petitioner sitting on the steps of Holyfield’s apartment with a nine-millimeter

pistol between his legs. He told her he was waiting for a friend to come out of one

of the apartments. Trial RT2 39-40.

At about 6 p.m. on the following evening, August 15, 1994, Hall and Sneed

returned to Sneed’s apartment from a shopping trip with Sneed’s three young

children. Trial RT2 122. Seeing Petitioner’s car, a red El Camino, parked in front

of the apartment, they quickly got out of Sneed’s car and ran into the apartment.

Trial RT2 43-44, 122-123. Gregory, who saw them running, came downstairs to

see what was wrong. Hall told Gregory she was afraid Petitioner would kill her

and asked Gregory to call the police because Sneed did not have a telephone.

Trial RT2 43-35.

As Gregory was leaving the apartment, Petitioner came running up to the

door holding a gun in one hand, shoved her out of the way, and pushed his way

into the apartment past Sneed and Hall, who were trying to shut the door on him.

Trial RT2 47-48, 125. Sneed and Hall asked him to put the gun away, and he did

so, placing it in his belt. Trial RT 2 48, 127-128. Hall then ran to the bathroom,

and Petitioner pulled his gun out and followed her. Sneed and Gregory heard

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several gunshots coming from the back of the apartment. Trial RT2 48, 128.

Gregory re-entered the apartment, meeting Sneed at the front door, while

Petitioner ran out the back. Trial RT2 48-49, 129. Petitioner got into his car,

which was still running, and drove off. Trial RT2 50-51. Gregory yelled to a

group of people who had gathered nearby to call the police. Id.

When police arrived, Hall was dead on the bathroom floor in Sneed’s

apartment. A subsequent autopsy revealed that Hall had died as a result of

multiple gunshot wounds: one bullet passed through the biceps and chest, another

struck the abdomen, and the third entered the top of the head. Trial RT2 153, 161162, 195. Three spent lead bullets were found at the scene. Id. 242. A ballistics

witness testified that the bullets were either .38 caliber or .357 magnum bullets,

and were not nine millimeter bullets. Trial RT2 95. It could not be determined

whether they had been fired from the same gun, though they could have been.

Trial RT2 97.

No witnesses were presented by the defense at either the guilt/innocence

phase or the sentencing phase. Petitioner was convicted and sentenced to death.

At the Rule 32 evidentiary hearing in postconviction, Petitioner established

that trial counsel had performed virtually no investigation to prepare for either the

guilt or the sentencing phase of the trial. However, Petitioner presented six

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witnesses who testified that they would have appeared and testified on Petitioner’s

behalf if they had been asked and could have presented extensive evidence

regarding Petitioner’s impoverished, abusive childhood, family history of

schizophrenia, Petitioner’s own mental illness– demonstrated through testing

administered by the Alabama Department of Corrections– and other evidence in

mitigation. Because funding for investigation and experts had been denied by the

court, Petitioner also proffered, in the form of affidavits, the statements of a

psychiatrist, neuropsychologist, and mitigation specialist regarding Petitioner’s

mental illness and background. Petitioner had repeatedly requested funding for

these experts and an investigator, but these requests were all denied.

Petitioner also sought to present the testimony of a witness named Mara

Ruffin, Petitioner’s former fiancee and the mother of his two children, who would

have testified that she and Petitioner had been stalked by the victim, Faith Hall

Smith, for a period prior to the homicide; that Hall had assaulted them by

smashing the window of their pickup truck with a tire iron while they were parked

in line at a McDonald’s restaurant, spraying Ruffin with broken glass; and that

Hall had chased Ruffin across town in her car while her infant daughter was in the

car with her. This testimony would have contradicted the prosecution’s theory at

trial and shown that Hall was not the innocent victim of a stalker but was herself a

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violent stalker involved in a romantic triangle, and also would have helped to

prove that Petitioner went to see Hall on the day of the incident not to kill her but

to warn her to stay away from his fiancee.

However, when Ms. Ruffin failed to appear at the evidentiary hearing in

response to a subpoena, the court denied Petitioner’s request for a bench warrant

to compel her to testify. Petitioner did present court records showing that trial

counsel could have discovered the facts of Hall’s tire iron attack on Petitioner and

Ms. Hall simply by typing in Hall’s name on the public computer on the counter of

the Circuit Court clerk’s office. Petitioner also showed that trial counsel’s

contention that Petitioner would not provide any helpful information to counsel

was not true, and that counsel’s own handwritten notes contained the story of

Hall’s assault on Petitioner and Ruffin which counsel had obtained from Petitioner

during their first meeting. Petitioner also showed that he had given trial counsel

the names and location information of several potential witnesses, including

Ruffin and their two daughters, and that trial counsel had made no effort to contact

them.

In spite of the evidence at the evidentiary hearing, the Circuit Court

dismissed all of Petitioner’s claims by signing, without alteration, a 103-page

order written entirely by the deputy attorney general assigned to the case. A letter

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of instructions from the deputy attorney general to the Circuit Court judge,

obtained by Petitioner, plus numerous obvious typographical errors in the order,

strongly suggest that the judge did not even read the order before signing it.

ARGUMENT

I. A Certificate Of Appealability Must Issue When A Petitioner

Surpasses The Absence Of Frivolity Standard Under 28 U.S.C. § 2253(c)(1)

The standard for issuance of a Certificate of Appealability (“COA”) is

deliberately low. Melton v. Fla. Dept. Of Corr., 778 F.3d 1234, 1238 (11th Cir.

2015). A court should issue a COA so long as “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. “Because this case involves the death penalty, any doubts as to whether

a COA should issue must be resolved in [Mr. James’s] favor.” Hughes v. Dretke, 412

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F.3d 582, 588 (5th Cir. 2005); see also Barefoot v. Estelle, 463 U.S. 880, 893 (1983).

II. The Traditional Deference Afforded to State Courts Is Not Merited

and Relief Is Warranted Under 28 U.S.C. § 2254(d)(2) Because The Circuit

Court Adopted The State’s Proposed Findings Without Independently

Evaluating Those Findings

As noted above, the Attorney General drafted and the state court signed the

Circuit Court order without change, inclusive of typos and other obvious errors. The

Supreme Court, in Jefferson v. Upton, 560 U.S. 292 (2010), discussed arguments

raised by a defendant before this court that a state court’s judgment should not be

afforded deference under the pre-AEDPA version of section 2254. The Court

observed that “[t]hese are arguments that the state court’s process was deficient. In

other words, they are arguments that Jefferson ‘did not receive a full and fair

evidentiary hearing in . . . state court.’” Jefferson, 560 U.S. at 292 (emphasis added).

While Jefferson was decided on the basis of the pre-AEDPA version of section

2254(d), that case, read in conjunction with Taylor v. Maddox, 366 F.3d at 999-1000

(claim may be resolved on the basis of § 2254(d)(2) if, inter alia, “the process

employed by the state court is defective”), compels the conclusion that the state

court’s adoption of findings virtually verbatim from the prevailing party’s proposed

order—absent any indicia that the court actually reviewed and evaluated

them—renders the state court’s process defective and its findings suspect.

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The deference traditionally afforded to the state court findings under section

2254(d) is predicated on the presumption of regularity. That presumption is called

into question whenever a court adopts the State Attorney General’s (or any

litigant’s) proposed findings verbatim. But the presumption of regularity should

not only be called into question but rejected altogether, when the verbatim

findings include obvious typographical and analytical errors that all but guarantee

that the court did not even review (much less analyze) the State’s proposed

findings before issuing its order. Because the court’s findings here were nothing

more than the State’s advocacy, the state court’s fact-finding was inherently

deficient and unreasonable, and habeas relief is appropriate under section

2254(d)(2).

The state court hearing was also outrageously biased and one-sided for

many other reasons set forth in Section V, infra. While Petitioner cannot fully

develop all these errors here due to length limitations, he has more than adequately

demonstrated entitlement to relief under §2254(d)(2) and, at a minimum, should

have been granted a federal evidentiary hearing on his claims.

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III. Jurists of Reason Could Conclude that Petitioner was Deprived of

Effective Assistance of Counsel at the Guilt Phase.

A. Standards of Review

In order to demonstrate the merits of a claim of ineffective assistance of

counsel, a petitioner must show both that counsel’s performance was deficient (the

performance prong) and that the deficiency prejudiced the defense (the prejudice

prong). Strickland v. Washington, 466 U.S. 668, 687 (1984).

In assessing the performance prong, the reviewing court must find that the

deficiency of counsel fell below an objective standard of reasonableness under

prevailing professional norms. Strickland, 466 U.S. at 688; Wiggins v. Smith, 529

U.S. at 521. “Prevailing norms of practice as reflected in American Bar

Association standards and the like, e.g., ABA Standards for Criminal Justice 4-1.1

to 4-8.6 (2d ed. 1980) (“The Defense Function”), are guides to determining what is

reasonable . . .” Strickland, 466 U.S. at 688. In capital cases, the ABA Guidelines

on the Appointment and Performance of Counsel in Death Penalty Cases (2003)

set forth the “well-defined norms” by which the reasonableness of counsel’s

performance should be judged. Wiggins v. Smith, 539 U.S. at 524. Such

professional standards are useful as guides to what is reasonable “to the extent

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they describe the professional norms prevailing when the representation took

place.” Bobby v. Van Hook, 558 U.S. 4, 7 (2009).

In assessing the prejudice prong, the reviewing court must find “a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. A reasonably probability is a

probability sufficient to undermine confidence in the outcome.” Strickland, 466

U.S. at 694. However, “a defendant need not show that counsel’s deficient

conduct more likely than not altered the outcome in the case.” Id. at 693-694. The

standard is thus less than a preponderance of the evidence. “The result of a

proceeding can be rendered unreliable, and hence the proceeding itself unfair,

even if the errors of counsel cannot be shown by a preponderance of the evidence

to have determined the outcome.” Id. at 694.

B. Petitioner was Deprived of Effective Assistance at the Guilt Phase

Claim I of petitioner’s second amended Rule 32 petition alleged that

petitioner was denied the right to effective assistance of counsel during the guilt

phase of his trial. CR 1212-1281. In a self-serving final order prepared by the

Attorney General– petitioner’s opponent in this litigation– and signed by a judge

who did not trouble to actually read it, the court dismissed all these subclaims as

unproven. CR SUPP 330-355.

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The state decision was abusive, erroneous, and objectively unreasonable.

However, the Court of Criminal Appeals, which issued the last reasoned decision

by the state courts, relied entirely upon the factual findings in the order in denying

petitioner the relief to which he was entitled, and the Alabama Supreme Court

affirmed the judgment. The result– a decision that was effectively made by the

Attorney General and then uncritically adopted by the appellate court– was

contrary to and involved an unreasonable application of United Supreme Court

precedents and also constituted an unreasonable determination of the facts. The

district court’s decision defering to the state decision was therefore error.

1. Counsel’s Performance Fell Below the Standard of Care.

The final order signed by the state Circuit Court selectively set forth the

legal analysis for ineffective assistance cases in language taken primarily from

Chandler v. United States, 218 F.3d 1305 (11th Cir. 2000), a 17-year-old case

which at the time of the hearing had been superseded by several major U.S.

Supreme Court cases the order did not cite or discuss. CR 326-330.

With regard to Claim I, the most obvious and serious error committed by the

state court concerned counsel’s failure to investigate and present a coherent guiltphase defense. The order found counsel’s performance during the guilt phase was

“reasonable.” CR 226. In view of the evidence adduced at the hearing, which

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showed that counsel completely failed to investigate or present evidence regarding

the circumstances of the homicide or the victim’s violent background, this finding

was grossly unreasonable.

Foremost among the duties of trial counsel is the duty to investigate.

Strickland v. Washington, supra, 466 U.S. at pp. 690-691; Wiggins v. Smith,

supra, 539 U.S. at p. 527; Goodwin v. Balkcom, 684 F.2d 794, 805 (11th Cir.

1982). Indeed, in order to prepare for a capital trial, counsel must investigate

every possible avenue of defense, investigate and challenge assertions by the state,

and subject the state’s case to a rigorous examination and testing. Strickland v.

Washington, supra, 466 U.S. 668; Code v. Montgomery, 799 F.2d 1481, 1483 (11th

Cir. 1986).

The final order completely failed to discuss the law pertaining to counsel’s

duty to investigate and failed to evaluate the adequacy of counsel’s guilt-phase

investigation according to prevailing standards. With respect to the performance

prong of the Strickland test, the order simply concluded that trial counsel’s

performance was reasonable because “counsel’s strategy was to negate the

burglary element of the capital murder charge.” CR 336. However, counsel did

nothing whatsoever to attempt to negate the burglary element of the charge,

presented no witnesses, and provided the most perfunctory of arguments.

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Moreover, counsel’s failure to investigate cannot be shielded behind a

talismanic invocation of supposed “strategy.” Courts may defer to counsel’s

supposedly “strategic” judgments or tactical decisions only if those judgments or

decisions are themselves based upon reasonable investigation. Wiggins v. Smith,

supra, 539 U.S. at 521. In addition, “[i]n assessing the reasonableness of an

attorney's investigation, however, a Court must consider not only the quantum of

evidence already known to counsel, but also whether the known evidence would

lead a reasonable attorney to investigate further.” Wiggins v. Smith, supra, 539

U.S. at p. 527, emphasis added. A state court judgment which merely concludes

that counsel’s investigation was adequate without assessing whether the decision

to cease investigating at a certain point demonstrated reasonable professional

judgment will itself be held to be “objectively unreasonable” and “an unreasonable

application of Strickland” and will be overturned by a federal court. Id., at pp.

527-528. The state court decision in Petitioner’s case is thus objectively

unreasonable on this basis alone.

The evidence adduced at the evidentiary hearing clearly showed that trial

counsel performed no real investigation. Lead counsel’s time sheets in this case

reflect a total of only 66.25 hours, including the trial itself, and only 42.25 hours

out of court, while associate counsel could not produce any time sheets at all. CR

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1520, 2751-2755; RT 128; 203-204. Counsel did no document gathering and

failed to assemble a defense team. See, ABA Guideline 4.1(A). Lead counsel

admitted that she gathered no documents, did not hire an investigator, did not hire

a mitigation specialist, and did not retain a psychologist, a psychiatrist, or a

neuropsychologist. RT 251. Counsel did not even claim a tactical or strategic

reason for this unprofessional failure; indeed, it “never occurred to” associate

counsel that it might be a good idea to do hire an investigator, and there was no

tactical or strategic reason for counsel’s failure to do so. RT 160-162.

Counsel also conducted no meaningful investigation of their own. None of

lead counsel’s activities in her time sheets were described as investigation. The

one hour she spent checking witness’s records and the one-half hour she spent

talking to petitioner’s grandmother on the phone appear to constitute the entire

investigation lead counsel conducted prior to trial. CR 2751-2755. Associate

counsel primarily assisted lead counsel and reviewed the files of petitioner’s

previous trial. RT 126. Though he initially stated it was partly his responsibility

to conduct a background investigation, that investigation consisted only of

interviewing petitioner, a task he claimed was unproductive. RT 126, 143.

Lean counsel’s pre-hearing affidavit, prepared by the Attorney General and

sworn by counsel under penalty of perjury, attempted to blame petitioner for

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counsel’s failure to investigate, stating that petitioner had refused to provide her

any information regarding the circumstances of the offense itself. CR 1519, 1521.

Lead counsel claimed she never heard that petitioner had a girlfriend and that

petitioner never mentioned the names of any friends when she asked about

potential witnesses. CR 1526. She initially repeated these assertions on the stand.

RT 211, 254. She also testified that she did not recall petitioner ever telling her

that the victim had made threats against him and his girlfriend and had attacked

them previously. RT 211.

However, directed to examine her own notes of her first conversation with

petitioner on December 31, 1998, in the Jefferson County Jail, counsel agreed that

these notes clearly showed petitioner told her all his movements prior to and

during the homicide incident and even told her that at the time of the killing the

“victim charge[d] him from kitchen” before he pulled out the gun and shot. CR

2749; RT 214. In the left hand margin of those notes, counsel wrote the words,

“in a trance,” suggesting that petitioner reported having had a dissociative reaction

of some kind. CR 2749; RT 214. The notes further showed petitioner told

counsel that the “victim had previously made death threats on defendant’s children

and mother of . . . [illegible].” CR 2749; RT 214. He also told her that the victim

had “busted out a window with a jack” while petitioner and his girlfriend were “in

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a truck” and “in front of a police station.” CR 2749; RT 214. Asked whether this

paragraph of her notes showed that petitioner in fact gave her his entire summary

of the facts of the case, she admitted “it appears to, yes.”1 RT 215.

As the foregoing demonstrates, petitioner in fact provided lead counsel with

his version of the events surrounding the homicide and the name of an important

witness regarding his past relationship with her, but counsel did absolutely

nothing to investigate this information. In light of the information petitioner

disclosed to his counsel, her failure to conduct even a cursory investigation was

inexplicable and unreasonable. Though she later claimed on the stand that she

was “sure” she had done something to investigate the victim, she could not say

what that was. RT 215. Indeed, at the evidentiary hearing she could not even recall

the victim’s name, RT 216, and her time-sheets and handwritten notes both show

that the only guilt-phase investigation she performed was one hour spent

On this point, the Alabama Court of Criminal Appeals completely ignored

the facts and testimony set forth in the text and stated only that “Vinson testified

that she did not recall James telling her about Ruffin’s assault charge against Hall

but that James was ‘very uncommunicative.’” James v. State, 61 So.3d 357, 366

(2010). The court simply ignored the fact that counsel herself subsequently

admitted on the stand that petitioner actually told her about this assault and her

own hand-written notes showed that he had done so in their very first meeting, yet

another example of the unreasonable nature of the state court’s decision.

1

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researching the criminal backgrounds of three prosecution witnesses. CR 2750,

2755; RT 216.

Thus, counsel’s repeated self-serving contentions that petitioner would not

cooperate with her or provide her with any information about the crime, as well as

her specific claims that she had never heard about the Brighton incident and the

victim’s assault against petitioner and his girlfriend, and that she had never even

heard that petitioner had a girlfriend, were all false and perjurious. This strongly

suggests that the rest of counsel’s self-protective testimony also cannot be trusted,

and it also does not reflect well on the reliability of the Office of the Attorney

General, which prepared both the false pre-hearing affidavit counsel signed and

the final order signed by the Circuit Court.

However, even if petitioner had failed to be as fully cooperative with his

attorney as her notes clearly show he was, this would still not have justified her

complete failure to conduct an investigation. Capital trial counsel must conduct a

thorough and independent investigation even if the client does not cooperate. See,

e.g., Blanco v. Singletary, 943 F.2d 1477 (11th Cir. 1991). Furthermore, counsel

must always attempt to discover information in the possession of the prosecution

and law enforcement, Rompilla v. Beard, supra, 545 U.S. 374, 387, and in this

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case counsel made no effort even to obtain the Brighton police reports

demonstrating the victim’s prior assault against petitioner and Ms. Ruffin.

In view of the information Petitioner provided her, counsel’s failure to

investigate the victim’s background or interview Ms. Ruffin were patently

unreasonable. Contrary to the state court decision, it is simply unarguable that

counsel failed to meet the standard of even minimal competence at the guilt phase.

2. Counsels’ Incompetent Performance Prejudiced Petitioner’s Case.

It is equally unarguable that counsels’ failure to conduct an investigation

prejudiced petitioner. The prosecution claimed that James had stalked Faith Hall

for days and wanted to kill her because he was jealous of her relationships with

other men. Trial TX 178-179, 181-183, 187; TX (6/17/99) 20-23. However, even

a cursory investigation would have shown that the reverse was the case, and that it

was Hall who had been stalking petitioner and his girlfriend, Mara Ruffin, and the

couple’s two children.

If counsel had gone to the trouble of checking the victim’s criminal record

at the public computer on the counter of the clerk’s office, she would have

discovered that the victim had a history of assault. CR 2732. Furthermore, as

noted above, petitioner himself had told Lead counsel in their first meeting that

Hall had assaulted him and his girlfriend, Mara Ruffin, by smashing the window

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of their pickup truck with a tire iron. CR 2749. Even a cursory investigation

would have completely confirmed the accuracy of petitioner’s story, revealing a

police report on the incident in Brighton Police Department files showing that Hall

had indeed assaulted Ms. Ruffin and Petitioner in Brighton mere weeks before the

homicide. CR 2734-2745.

Had the jury been informed of the evidence of Ms. Hall’s history of assault

against petitioner, it may well have accepted a self-defense or imperfect selfdefense theory, or at least rejected the prosecution theory that petitioner intended

to assault Ms. Hall when he entered the apartment, thereby reducing the crime

from capital murder to a lesser form of homicide. Since the prosecution’s only

theory of capital murder was based on this assault/burglary-murder theory, it is at

least reasonably likely that a more favorable result would have been obtained in

the guilt phase had counsel performed with even minimal competence. Petitioner

was entitled to inform the jury that he had an honest belief that he was in danger

from Ms. Hall, who had assaulted him previously with a tire iron, and therefore

acted reasonably in arming himself before he entered her apartment. See Brooks v.

State, 630 So.2d 160 (Ala.Crim.App.1993).

The state court correctly found that trial counsel did not obtain any of these

records regarding the assaultive history of the victim. CR 332. However, the

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order found all this documentary evidence of the victim’s assaultive history

“irrelevant” on the grounds that the victim’s violent nature cannot be proved by

evidence of specific acts. CR 332-33. This was clearly erroneous.

First of all, the legal question before the court was not whether or not the

Brighton documents were admissible. Rather, the question in this ineffective

assistance of counsel claim was whether it was reasonably probable that a more

positive result would have been obtained had counsel conducted the required

investigation. Strickland, supra, 466 U.S. at p. 695. Petitioner proved at the

hearing that he had informed counsel that the victim had a history of assaulting

petitioner and the mother of his children. A document available on the public

computer on the Court Clerk’s counter would have confirmed this, and a Brighton

Police Department report available through discovery would have provided

precise confirmation of all the details petitioner gave his attorney. Moreover, as

counsel herself confirmed, petitioner had informed her that he had put the gun

away and turned to leave, firing at the victim only when she “charged at him.” RT

214, 219-220. Any reasonable attorney would have continued investigating by

interviewing Ms. Ruffin, the arresting officer, and other potential witnesses to the

Brighton incident to determine whether there was a self-defense defense available,

to present such a defense if possible, and in any event to undermine the

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prosecution’s theory that petitioner was the aggressor. The evidence would also

have helped to support a defense of imperfect self-defense. See, e.g., Depetris v.

Kuykendall, 239 F.3d 1057 (9th Cir. 2001).

Because this evidence completely contradicted and undermined the

prosecution’s theory of the case and showed that it was Hall who was stalking

petitioner, and not the other way around, there is at least a reasonable probability

that this evidence would have resulted in a more favorable verdict for petitioner.

Moreover, even if counsel had concluded that a self-defense defense was not

persuasive, Ms. Ruffin and others would have testified that the victim had a

reputation for violence, a matter which is clearly admissible under Rule 405(a) of

the Alabama Rules of Evidence. Peraita v. State, 897 So.2d 1161, 1186 (Ala.

2003).

Furthermore, contrary to the order, the documentary evidence was itself

admissible to show self-defense. Under Alabama law, evidence of specific acts of

violence is in fact admissible to show the accused’s knowledge of such acts and

his reasonable apprehension of peril. Wright v. State, 641 So.2d 1274, 1280

(Ala.Crim.App. 1994). “The general rule is that such evidence is admissible if the

person toward whom the violence was directed had a very close connection with

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the accused such that there would be a reasonable apprehension of peril on the part

of the accused.” Ibid.

In addition, apart from self-defense, evidence of prior difficulties between

petitioner and Ms. Hall was admissible to negate other elements of the charged

offense, such as the prosecution’s claim that petitioner entered the apartment with

the intent to assault the victim. Dickerson v. State, 360 So.2d 1053, 1054-1055

(1978); Sashington v. State, 325 So.2d 205, 209 (1975). Here the jury would

have been more than justified in concluding from the Brighton Police Report or

testimony about it from the arresting officer or Ms. Ruffin that petitioner had

acted in reasonable apprehension of peril in arming himself and had not entered

the apartment with the intent to commit an assault. Since that was supposedly the

defense theory, it is at least reasonably probable that a more favorable outcome

would have been obtained had the defense investigated and presented actual

evidence in support of this theory, instead of simply asking the jury to accept the

theory on the basis of counsel’s unsupported assertion.

The decision of the Court of Criminal Appeals with respect to this claim

was also unreasonable. The appellate court’s decision uncritically adopted the

factual determinations made by the Attorney General and adopted by a judge who

did not bother to read them. As noted previously, the court simply ignored the fact

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that lead counsel’s story that petitioner would not give him his version of events

was both proved and admitted to be false, and instead assumed that every word

lead counsel had said was true even when she was shown to have been, and

admitted to being, wrong both in her testimony and her signed affidavit. The court

then focused on the facts that the prosecution’s two witnesses did not testify

petitioner acted in self-defense and that petitioner did not present evidence of selfdefense at the Rule 32 hearing. See, e.g., James v. State, 61 So.2d 357, 366-367.

However, rather obviously, there was no such evidence at trial because trial

counsel did not investigate and therefore did not ask the witnesses about facts

indicating self-defense or substantiating petitioner’s statement to counsel that Hall

had lunged at him prior to the shooting, and there was no such evidence at the

hearing because the court repeatedly refused to provide petitioner with the funding

for investigators and experts petitioner needed to make his case.

Moreover, the court never even addressed the possibility that the evidence,

even if insufficient to establish complete self-defense, nevertheless established

imperfect self-defense, nor did the court consider the impact the investigation into

Hall’s background would have had on the penalty phase, nor did the court analyze

prejudice by comparing the totality of the evidence against the evidence presented

at trial, as Strickland requires. Examining the evidence in that light would have

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compelled reversal, for here there was no defense at all, a fact any reasonable juror

would have taken to be a virtual admission by the defense that petitioner was

guilty as charged. The defense did not present any witnesses or question the

state’s witnesses on the facts petitioner had provided to Lead counsel in their first

meeting. It is at least reasonably likely that had the jury seen that the defense

disputed the state’s version of events might have found petitioner either not guilty

or guilty of a lesser included crime. Petitioner submits that relief is required on

the state record alone, but if this court finds the quantum of evidence developed at

the state hearing inadequate, an evidentiary hearing must be granted in the district

court so that petitioner can fully develop the claims he was prevented from

developing at the state level.

3. The Order’s Other Findings and Conclusions on Claim I Were

Unreasonable and Clearly Erroneous.

The length limit on this application prevents Petitioner from setting forth in

detail the many other unreasonable findings and conclusions made by the state

court, but the order made a number of other unreasonable and erroneous findings

regarding counsel’s failure to investigate and present guilt-phase evidence, all of

which were uncritically accepted by the higher Alabama courts. Petitioner will

very briefly note these objectionable findings here.

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A. The Atlanta Evidence. The Rule 32 court found that petitioner failed

to present evidence to support his claim that counsel failed to investigate and

discover that petitioner was in Atlanta the weekend prior to the murders and

therefore could not have been the person allegedly seen outside Ms. Hall’s

apartment with a nine-millimeter weapon the night prior to the homicide. CR 334335. The fault for this lack of evidence, however, lies not with petitioner but with

the Circuit Court, which refused petitioner’s request for a bench warrant to compel

the testimony of Mara Ruffin, who would have testified petitioner was with her in

Atlanta, as the petition alleged. CR 1233-1234. The findings were thus grossly

unreasonable.

B. The Mental Health Evidence. The final order found that petitioner did

not prove his claim that counsel failed to investigate and present evidence of

petitioner’s dissociative reaction at the time of the homicide. CR SUPP 335-336.

However, the order completely failed to address the questions of whether trial

counsel had a duty to investigate their client’s mental state and whether they

performed competently in this respect. Counsel’s own notes show petitioner told

Lead counsel that he had been “in a trance” at the time of the homicide, and that

petitioner’s sister had told Lead counsel her mother told her Petitioner acted like

he was on drugs the morning of the homicide. CR 2749; RT 268. Such suggestive

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information would have triggered further investigation into this matter had

reasonably competent counsel been appointed. Instead, counsel not only failed to

investigate but failed to retain a psychologist or include on the defense team any

person qualified to recognize or diagnose mental illness; and by their own

admission neither attorney had such qualifications. RT 173, 239. In failing to

retain such an expert or conduct any investigation into this matter, counsel plainly

failed to meet the standard of reasonable competence.

The record also shows that the failure to investigate or retain an expert was

prejudicial. Had counsel fulfilled their basic duty to gather records from such

sources as the Alabama Department of Corrections and Holman Prison, where

petitioner had been housed for years prior to this trial, and from petitioner’s

middle school, they would have learned that petitioner had numerous mental

problems, such as schizoid characteristics and a possible thought disorder. RT

226-228; CR 2649-2652. Lay social history testimony revealed that petitioner’s

father and aunt suffered from a mental illness which appears to have been

schizophrenia, RT 22-23, 27, 54-57, and that others on his father’s side of the

family also suffered from mental illness. RT 55-57. Lay social history testimony

also showed that petitioner almost certainly suffered from fetal alcohol syndrome.

His mother drank to excess on the weekends throughout her pregnancy with

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petitioner, and petitioner was born with the characteristic facial features of fetal

alcohol syndrome, including widely spaced eyes and ears, lack of a philtrum, and

deformed eyelids.

The appellate court decision also did not mention the fact that when the

Circuit Court denied petitioner’s repeated requests for funding for mental health

experts, petitioner’s counsel submitted to the court a proffer in the form of three

declarations signed under penalty of perjury by a psychiatrist, a neuropsychologist,

and a mitigation specialist. These declarations showed that based on the evidence

petitioner had presented to them, the mental health experts believed there was a

high probability that Mr. James suffered from schizophrenia or a disease on the

schizophrenia spectrum, such as schizotypal disorder, and had organic brain

impairments, a history of physical abuse, and likely posttraumatic stress disorder.

See Motion to Expand the Record, Declaration of Pablo Stewart, M.D., at pp. 7-8;

Declaration of Karen Bronk Froming, Ph.D., at p. 8. Neither the order nor the

appellate court’s decision discuss any of this evidence.

The Court of Criminal Appeals found that counsel acted reasonably in

relying upon an opinion of Dr. Wendy Rebert because she was an “expert.” James

v. State, supra, 61 So.3d 357, 368. The finding is absurd for a number of reasons.

First, Rebert’s evaluation was for competence to stand trial; its purpose was not to

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diagnose mental illness, and the opinion that he was competent to stand trial

therefore did nothing to rule out the presence of mental illness.2 Rebert

administered a basic competency instrument and an IQ test, but never administered

any instrument such as the MMPI that might have disclosed psychoses, personality

disorders, or other mental illnesses, not an instrument such as the Halstead-Reitan

Neuropsychological Battery that might have disclosed organic brain damage. No

competent expert would have been able to diagnose mental illness on the basis of

the tests Rebert administered.

Second, Rebert was not a defense expert, but a competence expert appointed

to advise the court. Competent counsel specifically on notice of information

suggesting a potential mental defense, as Lead counsel was, cannot rely solely

upon a competence evaluation prepared by a court-appointed expert, but instead

must retain mental health professionals for the defense and conduct an

investigation into the matter. Evans v. Whitley, 855 F.2d 631 (9th Cir, 1988);

Roberts v. Dretke, 381 F.3d 491, 498 (5th Cir. 2004) Third, her competence

evaluation was four years out of date, having been done in 1995, and was hardly

conclusive on petitioner’s mental condition at the time of trial in 1999. Fourth,

A person can be profoundly mentally ill and still be competent to stand

trial. Lackey v. State, 615 So.2d 145, 154 (Ala. Crim. App. 2002).

2

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Rebert lacked any social history documents, the sine qua non of mental health

diagnosis. See, e.g., Kaplan & Sadock, Comprehensive Textbook of Psychiatry,

ch. 7.1, Part IX, “Developmental and Social History,” p. 895. In their

declarations, petitioner’s experts explain the significance of the social history

documents petitioner’s habeas counsel was able to obtain and properly base their

conclusions on that material.

The appellate court’s conclusion that there is “nothing in the record” which

might have prompted counsel to investigate petitioner’s mental health is factually

wrong, objectively unreasonable, and demonstrates that the appellate court relied

solely on the Attorney General’s findings and did not actually review the record of

the hearing itself. The Court of Criminal Appeals did not examine the relevant

evidence or comment on it because the Attorney General conveniently left it out of

his final order, never once mentioning the testing data, and alluding to the other

evidence only in connection with mitigation.

Accordingly, contrary to the state appellate court’s decision, petitioner in

fact did make the requisite showing of evidence of mental illness that would have

compelled any reasonably competent counsel to investigate petitioner’s mental

health. Any shortcomings in the showing of actual mental illness are attributable

not to petitioner but to the state Circuit Court, which denied petitioner the funding

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needed for mental health experts and erred in the other respects set forth in

Petitioner’s district court motion for evidentiary hearing. Relief is compelled.

IV. Trial Counsel was Plainly Ineffective in the Sentencing Phase of

Petitioner’s Trial, and the State and District Courts’ Conclusions to the

Contrary Were Erroneous and Unreasonable.

Petitioner’s Claim II alleged ineffective assistance of counsel in the

sentencing phase of petitioner’s trial based on several errors. However, due to

length limitations, Petitioner will focus here solely on counsel’s failures to

investigate or present mitigation or social history evidence. Habeas corpus relief

on this claim was clearly compelled.

The Sixth, Eighth, and Fourteenth Amendments to the United States

Constitution guarantee a capital defendant competent counsel at the penalty phase

of his trial. Williams v. Taylor, 529 U.S. 362, 394-395 (2000); Brownlee v. Haley,

306 F.3d 1043 (11th Cir. 2002). At a minimum, competent penalty-phase

performance requires that counsel must conduct an investigation into the history

and background of the defendant “to discover all reasonably available mitigating

evidence and evidence to rebut any aggravating evidence that may be introduced

by the prosecutor.” Wiggins v. Smith, 539 U.S. 510, 524 (2003); Rompilla v.

Beard, 545 U.S. 374, 387, n. 7; see also, ABA Guidelines 10.4, 10.7. Counsel

must conduct this investigation well in advance of trial and cannot wait until as

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late as a week before the trial to begin preparing for the penalty phase of the trial.

ABA Guideline 10.7, Comment; Brownlee v. Haley, supra, 306 F.3d at 395.

In recent years, the United States Supreme Court has repeatedly emphasized

that capital counsel perform ineffectively if they fail to conduct a thorough

mitigation investigation. The Supreme Court has also repeatedly reversed other

capital cases in which the quality of the penalty phase representation far exceeded

the quality of the indolent representation petitioner received in this case. See,

Williams v. Taylor, 529 U.S. 362. 395-396 (2000) (death sentence reversed even

though sentencing phase defense was presented because counsel had not “fulfilled

their obligation to conduct a thorough investigation of the defendant's

background,” waited until a week before trial to begin conducting a mitigation

investigation, and then failed to uncover extensive social history records

graphically describing the defendant’s “nightmarish childhood”); Wiggins v.

Smith, 539 U.S. 510 (even though counsel obtained and reviewed a presentence

report containing social history information, gathered records from the Maryland

Department of Social Services recording incidents of the defendant’s physical and

sexual abuse, alcoholic mother, placements in foster care, and borderline

retardation, and also retained a psychologist to administer a number of tests on the

defendant, counsel performed incompetently because they failed to seek out “all

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reasonably available mitigating evidence” and specifically failed to hire a social

worker to prepare a social history. Id., at 524; Rompilla v. Beard, 545 U.S. 374,

381, 387 (2005) (death sentence reversed in spite of the fact that trial counsel had

conducted an extensive investigation, including conducting detailed interviews

with the client and five of his family members and retaining three mental health

experts, and in spite of the fact that the client was not only uncooperative but

actually obstructed their efforts, because trial counsel had failed to examine the

court file on the defendant’s prior conviction).

It should be noted that in all three of the foregoing cases, the United States

Supreme Court reversed decisions of the lower courts which had upheld the

defendants’ death sentences, holding that the state courts’ determinations that

counsel had acted competently or that counsel’s incompetence had not prejudiced

the defendant were not merely incorrect but were also objectively unreasonable.

See, e.g., Williams v. Taylor, supra, 529 U.S. at p. 397-398; Wiggins v. Smith.,

supra, 539 U.S. at pp. 528-529; Rompilla v. Beard, supra, 545 U.S. at 389-390.

As was true in the guilt phase, neither attorney conducted any meaningful

mitigation investigation. Second-chair counsel testified that he conducted no

mitigation investigation at all. He testified, “I don’t think I thought beyond the

trial itself, trying to get to the mitigation phase.” RT 166. He agreed that “it

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would be fair to say” that he was not thinking about mitigation. RT 166. “It

wasn’t on my radar screen.” RT 167. This was a clear admission of incompetent

performance.

Lead counsel did no better. She testified that she had done no recordgathering at all. RT 240, 251. She did not retain an investigator, a mitigation

specialist, a psychologist, a psychiatrist, or a neuropsychologist. RT 251. Thus,

there was no defense team even to begin conducting an investigation. Counsel

also did no meaningful investigation of her own. Prior to trial, she made exactly

one telephone call to petitioner’s step-grandmother and returned one phone call

that had been placed to her by petitioner’s mother. RT 241. Apart from these two

phone conversations, only one of which she originated, she spoke to no members

of petitioner’s family before trial began. RT 241. She admitted that, apart from

her conversations with petitioner himself, this was the entire extent of the

mitigation investigation. RT 251. Thus, under the prevailing standard of care and

binding United States Supreme Court precedent, counsel was grossly incompetent

in failing to investigate. RT 240.

Incredibly, however, the state court found this pathetic non-investigation to

be sufficient to satisfy the competence prong of Strickland. CR SUPP 359. The

Circuit Court order found it “obvious” from the record and the hearing that

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counsel conducted a “limited” investigation and did not present mitigating

evidence. CR SUPP 359. However, the order found this did not constitute

deficient performance because, according to the order, petitioner’s family was

“unwilling to help” and petitioner himself “refused to provide counsel with any

information.” CR SUPP 359. The order concluded that “[t]he absence of nonstatutory mitigation is attributable not to trial counsel, but to Mr. James and his

family.” CR SUPP 360. The order could not be more wrong.

First of all, the order grossly distorted the facts which emerged at the

hearing. The record clearly does not show that petitioner’s family was “unwilling

to help.” To the contrary, it shows that counsel made no meaningful effort to

contact, interview, or even locate petitioner’s family. Lead counsel’s entire effort

to contact petitioner’s family consisted of placing one phone call to petitioner’s

elderly step-grandmother, and returning one other phone call from petitioner’s

mother. RT 241-242. Counsel made no other attempt to contact any of petitioner’s

family, even though all his siblings’ names were listed in the 1996 presentence

report in her file. RT 244-246; Exh, 37. Counsel made no attempt to contact

petitioner’s aunts, and no attempt to track down petitioner’s father or other family

members. Counsel made no attempt to contact Mara Ruffin, the mother of

petitioner’s two children, even though petitioner gave counsel her name and

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number on December 31, 1998, and in spite of the fact that the names of

petitioner’s two daughters were also listed in the 1996 presentence report. RT

247-248; Exh. 37. Each of the social history witnesses who testified at the

hearing, including three of petitioner’s family members, stated that they would

have come to court and testified if they had been contacted by the defense and

asked to do testify, and petitioner’s sister testified she would have given counsel

the names of many other witnesses to interview for mitigation purposes if counsel

had only asked her. All this testimony went uncontradicted and unchallenged. RT

29, 72, 88, 112-113. At most, the evidence shows that petitioner’s mother was

reticent to testify in court, but it also shows that many other family and social

history witnesses were available and willing to help. Thus, the order’s conclusion

that petitioner’s family was unwilling to help contradicts the record.

Secondly, the order’s conclusion that petitioner himself refused to cooperate

with counsel in the sentencing phase or permit counsel to put on mitigating

evidence is also clearly false. Although lead counsel repeatedly sought to blame

her failure to investigate on petitioner’s supposed lack of cooperation, the record

clearly and repeatedly demonstrated that she was lying about this very matter. For

example, while counsel contended in both her testimony and her sworn prehearing affidavit that petitioner refused to cooperate or give her information about

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the homicide, CR 1519; RT 211, it was demonstrated at the hearing that petitioner

had in fact given her a complete explanation of his version of the events of the

killing the very first time they met. This fact was established by handwritten notes

made by lead counsel herself at her first meeting with petitioner on December 31,

1998, notes which completely summarized petitioner’s version of events. When

confronted with these notes, lead counsel admitted that her affidavit was false in

stating that petitioner would not talk about the incident or give her any

information. RT 215; Exh. 37.

Similarly, although lead counsel contended in her affidavit that she had

never heard that petitioner had a girlfriend, CR 1526, she admitted that her own

notes from her first meeting with petitioner also showed he had given her his

girlfriend’s name, telephone number, and even social security number, and that her

affidavit was therefore also false in this respect. RT 246-248; Exh. 37. Although

she initially testified that petitioner had never told her that the victim had attacked

him and his girlfriend with a tire iron, she admitted that her notes showed he had

given her the full story of this incident– a story later confirmed by a police report

on file at the Brighton Police Department, which of course counsel never bothered

to obtain. RT 211, 215; Exh, 37. Although counsel stated in her affidavit and

testimony that petitioner would not give her any names of family members or

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others from whom she could obtain mitigating evidence, she admitted on the stand

that petitioner had given her the name and phone number of his step-grandmother,

and as shown previously her own notes also show he had given her the name and

contact information of his girlfriend, Mara Ruffin. CR 1525; RT 221, 243, 246247, 258; Exh. 37. Accordingly, counsel’s self-serving statements attempting to

place the blame on petitioner for her own lack of investigation were proven and

admitted to be false, and the order’s conclusions to the contrary are clearly

erroneous and objectively unreasonable.

Third, even if the final order had been correct in concluding that petitioner

and his family had refused to cooperate, the law does not excuse counsel from

failing to investigate or present mitigating evidence on this basis. In a capital

case, counsel must conduct an independent investigation of the circumstances of

the case and must seek to obtain all reasonably available evidence in mitigation

even if the defendant does not provide assistance or cooperation, objects to the

presentation of mitigation evidence, and/or refuses to testify. ABA Guideline

10.7(a)(2); see e.g. Rompilla v. Beard, supra, 545 U.S. at p. 377 [counsel found

ineffective “even when a capital defendant’s family members and the defendant

himself have suggested that no mitigating evidence is available” and despite

consulting mental health experts]; Porter v. McCollum, supra, 558 U.S. ___, 130

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S.Ct. 447, 453 [counsel found ineffective despite a “fatalistic and uncooperative”

client who instructed counsel “not to speak with Porter’s ex-wife or son,” because

“that does not obviate the need for defense counsel” to conduct a mitigation

investigation]; Blanco v. Singletary, 943 F.2d 1477 (11th Cir.1991) [trial counsel

ineffective for failing to adequately investigate and present mitigating evidence

even though the defendant, Blanco, instructed his attorneys not to call any family

members or acquaintances to testify at the penalty phase]; Thompson v.

Wainwright, 787 F.2d 1447, 1451 (11th Cir. 1986) [attorney required to investigate

mitigation evidence even if defendant instructs him not to and refuses to testify];

Battenfield v. Gibson, 236 F.3d 1215 (10th Cir. 2001) [defendant’s alleged

“waiver” of right to present mitigating evidence invalid because counsel had not

adequately explained what mitigation evidence was; also, the state court’s holding

that counsel’s duty to investigate mitigation was absolved by defendants lack of

cooperation was an unreasonable application of Strickland]; Carter v. Bell, 218

F.3d 581 (6th Cir. 2001) [fact that family was uncooperative and defendant was

strongly opposed to presenting mitigation evidence does not relieve counsel of

duty to investigate]; Johnson v. Baldwin, 114 F.3d 835 (9th Cir. 1997) [even where

defendant lies to counsel, counsel must still conduct investigation to determine

whether defendant’s story is credible].

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The state court’s conclusion that petitioner somehow “waived” or is

“estopped” from asserting ineffective assistance in failing to investigate due to

petitioner’s alleged failure to cooperate, even if that allegation were true, is not

merely unreasonable but simply absurd. (CR SUPP 360.) Under the Eighth and

Fourteenth Amendments, until counsel has conducted a thorough and

constitutionally adequate investigation, explained to the defendant what evidence

is available, explained to the defendant what the purpose of mitigating evidence is

and why it is significant, and then obtained an express waiver, and until the trial

court has placed all these facts on the record and conducted its own inquiry into

the defendant’s understanding of the significance of his decision, no knowing and

intelligent waiver of the right to present mitigating evidence can be made.

Battenfield v. Gibson, supra, 236 F.3d 1215, 1231-1233, also 1231, n. 8, and

cases there cited. Any state court finding to the contrary will be held “patently

unreasonable.” Id., at p. 1233.

This case bears striking resemblances to this court’s decision in Blanco,

supra. As in Blanco, counsel’s self-serving contentions in this case that petitioner

would not cooperate were revealed at the hearing to be false. It is clear from

counsel’s own notes that petitioner actually did cooperate and provided counsel

with names and contact information for at least his step-grandmother and his

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fiancee, who was also the mother of his two daughters, and that counsel’s

contentions to the contrary were lies. However, even if petitioner had refused to

cooperate or provide the names of any individuals for counsel to interview,

counsel must still conduct an investigation, and the evidence at the hearing

showed that counsel failed to do so even though they had ample leads with which

to begin such an investigation that did not require petitioner’s cooperation.

For example, the presentence report from the first trial, which was in

counsel’s own files the moment she took over the case in December, 1998– six

months prior to trial– contained the names of all of petitioner’s five siblings and

his two daughters, a list of his prior employers, a list of schools he had attended,

and other leads for investigation that counsel never pursued. CR 2729-2731. Had

counsel bothered to do any record gathering at all, or even collect documents in

the possession of the Department of Corrections and Holman Prison, they would

have discovered additional social history information as well as substantial

credible information indicating serious mental problems, including the results of

psychological testing reporting petitioner’s schizoid characteristics and possible

thought disorder. CR 2661-2667. The foregoing are only two of a host of obvious

methods counsel could have used to begin a mitigation investigation without any

information or assistance from petitioner. Under the circumstances, counsel’s

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attempt to blame petitioner for their own lack of investigation smacks of

desperation.

The state court’s conclusion that counsel’s failure to investigate was not

prejudicial is similarly absurd. Although petitioner was severely hampered at the

hearing by the Court’s refusal to provide funds for investigators or mental health

experts, petitioner nevertheless managed to make a very substantial showing of

prejudice from counsel’s failure to investigate or present any mitigating evidence,

a showing much greater than the minimal level required to compel reversal.

The standards of prejudice for an ineffective assistance claim were set forth

in the guilt phase argument above. See Argument III. It bears repeating, however,

that a capital defendant need not show that it is more likely than not that he would

have received a life sentence had his attorneys performed competently. A

reasonable probability is less than a preponderance of the evidence. Strickland,

supra, at p. 698. Even if the new evidence is not entirely favorable to the

defendant or would leave some aggravating evidence (e.g., future dangerousness)

unrebutted, evidence of a defendant’s difficult childhood, poverty, mental

problems, and similar background and character evidence will be sufficient to

establish prejudice from counsel’s failure to perform effectively if that evidence

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“might well have influenced the jury's appraisal of his moral culpability.”

Williams v. Taylor, supra, at p. 398.

Under the foregoing standards, petitioner’s showing of mitigating evidence

was far more than was required to compel reversal. It must be remembered that

counsel in this case presented no mitigating evidence at all at trial. By

comparison, the mitigating evidence presented at trial in Wiggins, Rompilla, and

Sears v. Upton, 561 U.S. 945, was extensive, yet the United States Supreme Court

reversed those decisions because counsel had not discovered and presented “all

reasonably available mitigating evidence.” See, e.g., Wiggins v. Smith, supra,

539 U.S. at p. 524, emphasis in original. Indeed, in Rompilla counsel consulted

three mental health experts, presented five witnesses, and gathered a number of

social history records, yet the Supreme Court reversed because counsel had failed

to examine the prosecution’s file regarding one of the defendant’s prior

convictions which the prosecution intended to use in aggravation. In Sears, the

Court found trial counsel ineffective in a 1993 trial even though they had

presented seven witnesses in the penalty proceedings. Sears v. Upton, supra, 130

S. Ct., at p. 3266. Clearly, if trial counsel’s much more extensive investigation

and presentation in these cases required reversal, a fortiori trial counsel’s

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complete failure to investigate or present a mitigation case at all compels relief

here.

Indeed, one eloquent demonstration of the strength of petitioner’s mitigation

case lies in the fact that even the grossly unreasonable order crafted by the

Attorney General contains sufficient persuasive mitigating evidence to

demonstrate prejudice and compel relief under then existing Supreme Court case

law.

For example, the order found that petitioner had a “difficult childhood,

marked by the instability of constant moves, poverty, a frequently absent mother,

and a completely absent father.” CR SUPP 367. The order noted that petitioner

showed that his father was mentally ill. CR SUPP 363. The order agreed that

petitioner showed that his mother drank heavily, often to excess, while she was

pregnant with petitioner, and that petitioner was born with facial abnormalities,

i.e., a large head, small ears, and drooping upper eyelids which required petitioner

to tip his head backwards in order to see and which required surgery when he was

four or five years of age. CR SUPP 363.3

Though the order did not so find– primarily because petitioner was

prevented from presenting mental health experts or even the proffered declarations

of mental health experts– the evidence on this point strongly suggests petitioner

suffered fetal alcohol syndrome, a lifelong pattern of mental and physical defects

affecting the central nervous system, which typically results in mental retardation,

3

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The order found that petitioner’s mother was so sexually promiscuous that

petitioner and his five siblings were born to five different fathers. CR SUPP 363,

366. The order found that petitioner’s biological father beat his mother,

sometimes in front of him, when he was an infant, and abandoned the family when

petitioner was two years old. CR SUPP 363. From that time on, the order found,

petitioner’s life was filled with “constant moves and instability.” CR SUPP. 366.

The order stated that petitioner’s mother moved the family from apartment to

apartment, so that the family lived in 18 different places when he was a child. CR

SUPP. 364. The order found that when petitioner’s mother was gone, petitioner

took care of his five younger siblings, and was very protective of his sister. CR

SUPP. 364, 366. Finally, the order found that petitioner had a fiancee at the time

of the homicide, and had two daughters by her. CR SUPP 363, 364.

Although petitioner submits that there was much more evidence presented at

the evidentiary hearing which a jury might have found persuasive and which the

order simply omitted, a review of the United States Supreme Court case law

compels the conclusion that even the evidence found to be true in the self-serving

learning disabilities, short attention span, hyperactivity in childhood, and other

mental health issues. Denying petitioner funds for mental health experts placed

petitioner in a Catch 22, unable to show the prejudice from counsel’s failure to

retain mental health experts.

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final order itself, when compared with the total absence of mitigation evidence

presented at trial, was more than adequate to establish the prejudice from

counsel’s ineffectiveness and compel reversal. Any of the foregoing facts “might

well have influenced the jury's appraisal of his moral culpability.” Williams v.

Taylor, supra, at p. 524. It cannot seriously be contended that there is not a

reasonable probability– a standard less than a preponderance of the evidence– that

a more favorable result might have been obtained had this evidence been

presented.

Because trial counsel presented no evidence on his behalf, the jury in

petitioner’s case was given no sense of petitioner as a human being. Instead, they

were asked to determine whether he should live or die based solely on evidence of

the worst thing he had ever done in his life. Without any mitigating evidence to

humanize petitioner, the jury was likely to view petitioner with fear and hostility,

overlook their common humanity with him, and seek solely to avenge the victim’s

death. This likelihood became even greater when the prosecutor falsely portrayed

petitioner as a monster who killed in cold blood, an evil generic killer who was

“mean. Plain old mean.” Trial RT (6/17/99) 23. Indeed, the full impact of

counsel’s ineffective performance is neatly summed up in the following passage of

the prosecutor’s closing penalty phase argument:

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All of us want to sit back and we all want to think, There has to be

something good about this guy. There has to be something good.

But I submit to you there is not.

Ibid.

The prosecutor was able to make this argument, of course, only because trial

counsel never investigated or presented any evidence in petitioner’s favor; and

since the defense had presented absolutely no evidence to contradict the

prosecutor’s contention, the jury had no reason to spare petitioner’s life.

Yet in light of the evidence presented at the hearing, even the Attorney

General’s absurdly self-serving final order agrees that petitioner proved he had a

family, including two infant daughters. A reasonable jury might have decided to

spare petitioner’s life simply so petitioner’s two little girls would have a father

when they grew up, even if the jurors were not willing to spare petitioner for his

own sake. Similarly, even under the Attorney General’s self-serving view of the

evidence, the jury would have heard that petitioner was born to an alcoholic,

sexually promiscuous mother and a mentally ill, schizophrenic father who beat

petitioner’s mother. The jury would have heard that in addition to his family

history of schizophrenia, petitioner suffered from birth defects– facial

abnormalities that set him apart from other children– and might have put two-andtwo together, even without a mental health expert, and figured out that petitioner

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suffered from fetal alcohol syndrome and, possibly, schizophrenia itself. The jury

would have heard that in spite of his deficits, petitioner cared for his younger

siblings when his mother was out carousing with her many boyfriends, and was

also protective of his sister Yosandra. Any of these facts might have persuaded a

reasonable juror to look at petitioner in a more positive or sympathetic light, or at

least to understand that petitioner was not one of the “worst of the worst” and

therefore did not deserve to die. Like the evidence presented in post-conviction in

Williams v. Taylor, supra, the foregoing evidence “might well have influenced the

jury's appraisal of his moral culpability,” Williams v. Taylor, supra, at p. 524, and

reversal of the judgment was accordingly compelled on the Attorney General’s

facts alone.

It must be emphasized that the foregoing findings constitute only the

selective, one-sided view of petitioner’s opponent in the litigation and do not

reflect what a reasonably impartial, unbiased finder of fact would have found.

Indeed, the order’s blatant bias was made immediately apparent by the fact that the

order included no findings with respect to the mitigating impact of any of the

documentary evidence petitioner presented, such as the Department of

Corrections’ own psychological examinations of petitioner, including two MMPI

examinations of petitioner, which showed, inter alia, that petitioner had “schizoid

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characteristics” and a possible “thought disorder” and believed he was possessed

by evil spirits. RT 226-228; Exhs. 12A, 12B. In view of the fact that these two

respected, empirical psychological tests were administered by the state itself, the

state court’s failure to mention them as mitigating evidence or evaluate their

credibility was grossly unreasonable. Plainly, even without the assistance of an

explanation from a mental health expert, a reasonable juror could have concluded

from the combined effect of this documentary evidence, petitioner’s family history

of mental illness, and the argument of competent counsel that petitioner was

mentally ill and therefore less culpable than would be a person with all his

faculties intact.

Similarly, documentary evidence clearly proved that only months prior to

the killing, petitioner and his girlfriend, Mara Ruffin, were attacked with a tire

iron by the victim, Faith Hall, who broke the window of the truck in which they

were sitting, cutting Ms. Ruffin with flying broken shards of glass. In view of the

fact that this information came from a report prepared by a law enforcement

officer, an agent of the state, the order’s complete failure to mention this credible

mitigating evidence is also inexplicable and further demonstrates the biased nature

of the order.

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Plainly, had evidence of the Brighton assault been presented, a reasonable

juror could have concluded that petitioner was not acting maliciously or even

unreasonably in arming himself prior to entering the victim’s apartment, but

instead went prepared to defend himself against someone who had previously

assaulted him and his girlfriend with a deadly weapon. This evidence would have

demonstrated that there was bad blood between the victim and petitioner, and that

the victim was hardly the blameless, saintly, innocent young girl the prosecutor

falsely portrayed her to be. Trial RT (6/17/99) 36.4 At the very least, this

evidence would have effectively countered the prosecutor’s theory that petitioner

had been stalking the victim; in fact, it was the victim who had been stalking

petitioner and his girlfriend. The state court’s failure to mention these facts is

objectively unreasonable.

The state court’s decision also fails to mention other matters which would

have aided the defense. For example, petitioner’s aunt, Consuela James, testified

that petitioner’s father was not the only person in the family who suffered from

mental illness; at least three other paternal relatives were clearly mentally ill, a

powerfully mitigating fact in view of the genetic component in schizophrenic

The prosecutor outrageously suggested to the jury, without any evidentiary

basis, that the victim had been praying when she was killed. Trial RT (6/17/99)

36.

4

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spectrum disorders. RT 57. Ms. James also testified that petitioner’s mother

abandoned the family for long periods of time, and permanently gave up her son,

Hakim, to petitioner’s step-grandmother. RT 66. The order is silent on all these

matters, matters which would have underscored the fact that petitioner suffers

from mental illness and was raised in a bizarre environment, surrounded by

parents and others who were themselves severely mentally ill.

The state court decision was also unreasonable in many other respects. For

example, it supposedly discounted all of the testimony of Petitioner’s sister,

Yosandra Craig, simply because she recalled speaking to a male lawyer rather than

a female lawyer at petitioner’s trial several years earlier. CR SUPP 340, n. 7

(finding Ms. Craig’s “entire testimony . . . incredible”). The order does not

explain how this failure of recollection undermines the credibility of her testimony

regarding her own upbringing with petitioner, nor does the order explain why,

having supposedly discounted her “entire testimony,” the order then selectively

relies upon her testimony for negative findings about petitioner’s background and

for the fact that Ms. Craig succeeded academically even though raised in the same

deprived background as petitioner. CR SUPP 340, n. 7, 367; RT 117. It is also

noteworthy that the order does not find any credibility problems with the

testimony of lead counsel, even though she admitted on the stand that statements

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in her sworn affidavit and even aspects of her live testimony were false. In any

event, petitioner submits that Craig’s testimony regarding petitioner’s childhood

was perfectly credible and that it was manifestly unreasonable of the final order to

selectively discount aspects of that testimony helpful to the defense while relying

upon others perceived helpful to the prosecution.

Finally, petitioner notes that the state court decision reflected not only

unreasonable and demonstrably false factual findings, a lack of legal scholarship,

and an absence of analysis, but also a basic misunderstanding of the purpose and

importance of mitigating evidence. The order concluded that although petitioner

proved he had “a difficult childhood, marked by the instability of constant moves,

poverty, a frequently absent mother, and a completely absent father,” this evidence

must be “afforded little weight” because “many people who experience similar or

even worse childhoods do not grow up and commit capital murder.” CR SUPP

367. This statement not only fails to logically support the conclusion, but also is

legally irrelevant.

The purpose of mitigating evidence is not to excuse or justify the

defendant’s conduct in committing the offense of which he was convicted, or to

show that the offense was itself attributable to the defendant’s background and

character. Instead, the purposes of mitigating evidence are “extremely broad and

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encompass any evidence that tends to lessen the defendant’s moral culpability for

the offense or otherwise support[] a sentence less than death. In particular, a

mitigation presentation may be offered not to justify or excuse the crime ‘but to

help explain it.’” ABA Guideline 10.11, Comment. Thus, evidence about, e.g.,

petitioner’s past relationship with Hall and her previous attacks on petitioner and

his girlfriend– facts proved by official documentary evidence on which the order

makes no findings– were powerfully mitigating.

Mitigating evidence may also be presented to show the jury that the

defendant is a sympathetic human being and to counter arguments, such as those

made by the prosecutor in this case, that the defendant is a cold-blooded killer, is

“plain old mean,” and that there is nothing good about him. RT (6/17/99) 23, 36.

Indeed, one important reason why social history witnesses must be sought and

presented by competent counsel is that such witnesses “humanize the client by

allowing the jury to see him in the context of his family, showing that they care

about him, and providing examples of his capacity to behave in a caring, positive

way, such as attempting to protect other family members from domestic violence

or trying to be a good parent and provider.” ABA Guideline 10.11, Comment.

Thus, the facts that petitioner was caring and protective toward his sister,

took care of his younger siblings when his mother was away, and had two young

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daughters of his own– all of which the order found petitioner proved at the

hearing– served to humanize petitioner and constituted powerfully mitigating

evidence. Particularly in light of the fact that defense counsel presented no

evidence at all to assist petitioner’s cause in the sentencing phase, the order’s

conclusion that the evidence at the evidentiary hearing was inadequate to establish

prejudice is profoundly erroneous and unreasonable.

Petitioner overwhelmingly proved ineffective assistance of counsel at both

the guilt and penalty phases, and reversal of the entire judgment is therefore

mandated.

V. Petitioner Should Have Been Granted an Evidentiary Hearing.

Subject only to modifications enacted by the AEDPA, a federal Court’s

determination of whether to grant an evidentiary hearing is still governed

primarily by Townsend v. Sain, 372 U.S. 293 (1963). See, Schriro v. Landrigan,

550 U.S. 465, 473 (2007). Petitioner was entitled to a hearing because the state

factual determination was not fairly supported by the record as a whole, the factfinding procedure employed by the state court was not adequate to afford a full

and fair hearing, the material facts were not adequately developed at the state court

hearing, and the state trier of fact did not afford petitioner a full and fair fact

hearing. Townsend v. Sain, 372 U.S., at p. 313. Indeed, the state hearing was little

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more than a kangaroo court in which Petitioner was obliged to try his case to the

Attorney General, his opponent in the litigation, who effectively ruled on all issues

before the court. The district court therefore erred in denying Petitioner an

evidentiary hearing.

The Circuit Court judge reflexively signed virtually every proposed order

placed before him by respondent without any alteration or further explanation,

failing to sign only those orders which the state itself superseded with duplicative

orders, leading any reasonable and impartial observer to conclude that throughout

this litigation the judge simply followed the instructions given him by respondent.1

The Attorney General effectively ruled even on such matters as Petitioner’s

requests for funds for investigators and experts– requests that impartial courts

routinely treat as ex parte matters because they necessarily disclose matters of

defense strategy and tactics but which Petitioner was compelled to serve on

Respondent.

1

/ Indeed, the Circuit Court and the Attorney General practically announced that

the Attorney General would be authoring the final decision in this matter even

before the evidentiary hearing was completed. At one point during the hearing,

when a dispute arose as to whether the declarant of a statement was a psychologist

or a licensed professional counselor, the Attorney General suggested that the court

defer resolving the question at that point “as long as we can tie it up in the order . .

.” (RT 227.) The judge obediently nodded and said, “All right.” (RT 227.)

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So routine were these rulings that in some cases, such as when the Circuit

Court granted the state’s motion to prospectively prohibit petitioner from

amending the petition, the court signed respondent’s order without even providing

petitioner with an opportunity to respond to the state’s motion. In other cases,

such as when the Circuit Court purportedly “dismissed” all of petitioner’s claims

and then the petition itself in January, 2003, it was apparent that the court was not

even familiar with the contents of its own file or the current status of the case, had

not even read the current version of the petition, and had not carefully read the

orders it was signing— approving some orders the Attorney General had directed

to the original petition and other orders directed to the first amended petition, all

while petitioner’s second amended petition had been on file with the court for at

least two months. It is also apparent that the court did not bother to read the

Attorney General’s outrageous, overreaching, and clearly erroneous final order

before signing it.

The United States Supreme Court has condemned the mechanical adoption

of verbatim orders drafted by the prevailing party. See, e.g., Anderson v. Bessemer

City, 470 U.S. 564, 72-73 (1985) (noting Court’s prior criticism of verbatim

adoption of findings of fact prepared by prevailing party but holding remand was

unnecessary because court’s findings varied considerably in organization and

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content from those submitted by petitioner’s counsel); United States v. El Paso

Natural Gas, 376 U.S. 651, 56 (1964) (condemning trial court’s verbatim adoption

of findings of fact and conclusions of law written by prevailing party where they

were mechanically adopted.)

Most recently, the United States Supreme Court condemned the practice of

the verbatim adoption of findings of fact prepared by prevailing parties in

Jefferson v. Upton, 563 U.S. 284 (2010). In Jefferson, the federal district court

failed to address the petitioner’s arguments that the state court’s procedure of

adopting findings written entirely by the state attorney general deprived its

findings of the presumption of correctness or the need for deference under section

2254. The high court criticized this failure and referred the case back to the

federal district court to determine whether the findings actually warranted a

presumption of correctness. Id., 563 U.S. at 293-295. The court appeared to be

particularly concerned that the state court may have adopted “findings that contain

internal evidence suggesting that the judge may not have read them.” Id., at 294.

Here it is plain from the document itself and from the circumstances surrounding

its adoption by the Circuit Court that the final order was simply signed by a state

court judge who never read it.

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By denying Petitioner’s repeated requests for funding for a mitigation

specialist and mental health experts, the court effectively created a perfect Catch22– preventing the indigent Petitioner from developing the facts necessary to

prove the prejudice prong of his claim that trial counsel had been ineffective in

failing to consult or retain such experts. When Petitioner finally submitted the

declarations of three such experts, consulted at counsel’s own expense, explaining

that correctional records and other evidence strongly suggested petitioner was

mentally ill and suffered from frontal lobe brain damage, the Attorney General

first requested a week to review the declarations and finally instructed the judge to

sign a final order dismissing them on an absurd basis, never raised in the

evidentiary hearing, to which Petitioner had never been given an opportunity to

respond.

The court granted discovery only days before the hearing and then refused

to grant Petitioner a continuance even though many state agencies had not yet

provided documents in compliance with the order and discovery actually obtained,

including two MMPI tests disclosed by the Alabama Department of Corrections

which confirmed that petitioner was mentally ill, required more time for expert

assistance and other witnesses to explain their results.

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Perhaps most unfair of all, however, was the court’s refusal to issue a bench

warrant to compel attendance of Mara Ruffin, a critical defense witness who

would have testified regarding the prior assaults on her by the victim, Faith Hall,

as well as the fact that Petitioner was in Atlanta with her the night before the crime

and was not the man with the gun Gregory said she saw on the porch– testimony

which would have seriously undermined the prosecution’s theory that Petitioner

was stalking Hall and that he entered her apartment with the intent to commit

assault. Furthermore, as the mother of Petitioner’s two children, Ms. Ruffin was

also a critically important mitigation witness who could have testified, inter alia,

that Petitioner was a positive influence in his daughters’ lives. The court’s wholly

unreasonable ruling deprived Petitioner of his right to compulsory process.

The foregoing paragraphs describe only the tip of the iceberg of unfairness

Petitioner encountered during state proceedings. Space limitations prevent

Petitioner from fully discussing these issues here, but at a minimum he was

entitled to an evidentiary hearing in federal district court to fully develop and

present the evidence he was prevented from presenting in state court.

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CONCLUSION

For the reasons set forth herein, this Court should issue a Certificate of

Appealability to permit Mr. James to appeal his claims of ineffective assistance of

counsel and should remand for a federal evidentiary hearing on those claims.

Dated: August 9, 2017

Respectfully submitted,

/s/ Wesley A. Van Winkle

Wesley A. Van Winkle

Attorney for Petitioner Joe Nathan James

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CERTIFICATE OF COMPLIANCE

In compliance with Fed. R. App. P. 32(a)(7)(C), I verify that this

Application for Certificate of Appealability, including footnotes and excluding the

items set forth in 11th Cir. R. 32-4, contains no more than 14,000 words.

/s/ Wesley A. Van Winkle

Wesley A. Van Winkle

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CERTIFICATE OF SERVICE

I certify that the foregoing Application for Certificate of Appealability was

served on the following by United States mail, postage prepaid, on August 9,

2017:

Richard Anderson

Office of the Attorney General

Alabama State House

11 South Union Street

Montgomery, AL 36130-0152

Jefferson S. Dunn

Commissioner

Alabama Department of Corrections

301 S. Ripley Street

P.O. Box 301501

Montgomery, AL 36130-1501

Joe Nathan James

Z-610, H1-23A

Holman 3700

Atmore, AL 36503

/s/ Carol Friedman

Carol Friedman

65

APPENDIX B

James’ Eleventh Circuit Brief

Case: 17-11855

Date Filed: 10/24/2018

Page: 1 of 59

No. 17-11855

In the United States Court of Appeals

for the Eleventh Circuit

__________

JOE NATHAN JAMES,

PETITIONER-APPELLEE

v.

WARDEN, HOLMAN CORRECTIONAL FACILITY,

JEFFERSON DUNN, COMMISSIONER,

ALABAMA DEPARTMENT OF CORRECTIONS, ET AL.

__________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA, NO. 2:10-CV-02929-CLS-HGD

HON. C. LINWOOD SMITH, PRESIDING

__________

APPELLANT’S OPENING BRIEF

WESLEY A. VAN WINKLE

ATTORNEY AT LAW

P.O. BOX 5216

BERKELEY, CA 94705-0216

TELEPHONE: (510)848-6250

FACSIMILE: (510)848-6251

E-MAIL: tacitus@pacbell.net

COUNSEL FOR PETITIONER/APPELLANT

JOE NATHAN JAMES

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CERTIFICATE OF INTERESTED PERSONS

AND CORPORATE DISCLOSURE STATEMENT (CIP)

Undersigned counsel certifies that the following persons may have an

interest in these proceedings:

Alper, Ty – State Co-Counsel for Petitioner-Appellant

Anderson, Richard D. – Deputy Attorney General, Counsel for RespondentAppellee (federal proceedings)

Brower, William – State Trial Counsel (pre-trial proceedings)

Dunn, Jefferson – Commissioner of Alabama Department of Corrections,

Respondent-Appellee

James, Joe Nathan – Petitioner-Appellant

McCormick, Hon. Michael – Trial Judge (State Criminal Trial and Rule 32)

McIntire, Jeremy– Deputy Attorney General (State Proceedings)

Smith, Hon. C. Lynwood – Judge, District Court for the Northern District of

Alabama

Smith, Faith Hall – Victim

Van Winkle, Wesley A. – Counsel for Petitioner-Appellant

Vinson, Hon. Virginia – State Trial Counsel (lead)

Warren, Gordon – State Trial Counsel (associate)

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Wood, John – State Co-Counsel for Petitioner-Appellant

I certify that the foregoing persons appear to me to fall within the scope of

11th Circuit Rule 26.1-2(a) and may have an interest in these proceedings.

Dated: October 24, 2018

/s/ Wesley A. Van Winkle

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TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PARTIES AND CORPORATE DISCLOSURE STATEMENT

(CIP) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

FACTUAL SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

I. Appellant Was Deprived of the Effective Assistance of Counsel in the

Penalty Phase, and Reversal is Required . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

A. Standards of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

B. Standard of Care for Penalty Phase Counsel . . . . . . . . . . . . . . . . . . 14

C. Trial Counsel Performed Incompetently Under the Standard of

Care Clearly Established by the United States Supreme Court . . . . . . . 18

D. Counsel’s Failure to Investigate Was Prejudicial. . . . . . . . . . . . . . . 30

E. The Traditional Deference Afforded to State Courts Is Not

Merited and Relief is Warranted Under 28 U.S.C. §2254(d)(2) Because

the State Circuit Court Adopted The State’s Proposed Findings

Without Independently Evaluating Those Findings. . . . . . . . . . . . . . . . 43

F. At a Minimum, Appellant Should Have Been Granted an Evidentiary

Hearing on This Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

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CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

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TABLE OF AUTHORITIES

FEDERAL CASES

Anderson v. Bessemer City, 470 U.S. 564 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Battenfield v. Gibson, 236 F.3d 1215 (10th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26

Blanco v. Singletary, 943 F.2d 1477 (11th Cir.1991) . . . . . . . . . . . . . . . . . . . . . 20, 24, 26, 27, 28

Bobby v. Van Hook, 558 U.S. 4 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Brownlee v. Haley, 306 F.3d 1043 (11th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 16

Carter v. Bell, 218 F.3d 581 (6th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Cummings v. Secretary for the Department of Corrections, 588 F.3d 1331 (11th Cir. 2009) . . 30

Dobbs v. Turpin, 142 F.3d 1383 (11th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

United States v. El Paso Natural Gas, 376 U.S. 651 (1964). . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Hamblin v. Mitchell, 354 F.3d 482 (6th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

James v. State, 532 U.S. 1040 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Jefferson v. Upton, 560 U.S. 292 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 44, 48

Johnson v. Baldwin, 114 F.3d 835 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Porter v. McCollum, 558 U.S. 30 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 24

Rompilla v. Beard, 545 U.S. 374 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 17, 18, 24, 32

Schriro v. Landrigan, 550 U.S. 465 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Sears v. Upton, 561 U.S. 945. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Strickland v. Washington, 466 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . . . . . 12, 13, 14, 20, 25, 31

Thompson v. Wainwright, 787 F.2d 1447 (11th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Townsend v. Sain, 372 U.S. 293 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

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Wiggins v. Smith, 539 U.S. 510 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 16, 18, 32

Williams v. Taylor, 529 U.S. 362 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 16, 17, 18, 31,

35, 36, 37

FEDERAL STATUTES

28 U.S.C. §2254. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3-8, 43, 44

Fed. R. App. P. 32(a)(7)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

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No. 17-11855

In the United States Court of Appeals

for the Eleventh Circuit

__________

JOE NATHAN JAMES,

PETITIONER-APPELLEE

v.

WARDEN, HOLMAN CORRECTIONAL FACILITY,

JEFFERSON DUNN, COMMISSIONER,

ALABAMA DEPARTMENT OF CORRECTIONS, ET AL.

__________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA, NO. 2:10-CV-02929-CLS-HGD

HON. C. LINWOOD SMITH, PRESIDING

__________

APPELLANT’S OPENING BRIEF

INTRODUCTION

Appellant and Petitioner Joe Nathan James respectfully appeals the district

court’s Memorandum Opinion and Orders of September 30, 2014, denying and

dismissing all claims in his Petition for Writ of Habeas Corpus and denying

Appellant’s motion for an evidentiary hearing. District Court Doc. 27.

Habeas corpus relief is compelled under 28 U.S.C. § 2254(d)(1) and (2)

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because the state court ignored or unreasonably applied clearly established federal

law and unreasonably determined the facts in denying Appellant’s claim of

ineffective assistance of counsel at the penalty phase of his trial. Appellant

showed that in this capital case trial counsel fell far below the minimum standard

of care required of capital defense lawyers, performing no investigation and

presenting no witnesses in the penalty phase even though many social history

witnesses could have testified and expert mental health professionals could have

given a persuasive and sympathetic explanation of appellant’s conduct. Appellant

also showed that but for these errors it was at least reasonably probable that a

more favorable result would have been obtained in his case and thus established

his entitlement to relief for ineffective assistance of counsel.

Appellant also showed that the state court unreasonably determined the

facts. The state evidentiary hearing was little more than a kangaroo court in which

the Attorney General effectively made all the rulings, which the evidentiary

hearing judge routinely signed without reading. Appellant argued federal

constitutional error in connection with the wholesale adoption of the Attorney

General’s profoundly biased 103-page opinion, but the Alabama Court of Criminal

Appeals rejected the contention and all of Appellant’s substantive claims. The

district court affirmed the state court’s judgment, effectively validating the state’s

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unconstitutional procedure and analytical errors. The district court plainly erred in

dismissing the petition and denying Appellant an evidentiary hearing, and

appellate relief is therefore required.

Although Appellant recognizes that the Court of Criminal Appeals’ decision

is the last reasoned decision of the state court and therefore the decision reviewed

by the district court and this court, that decision uncritically adopted the

profoundly biased and legally and factually incorrect 103-page order drafted by

the Attorney General, an order signed by a Rule 32 judge who obviously failed

even to read it. This procedure was not only a federal constitutional violation but

also rendered the state’s fact-finding process relevant to Appellant’s claim of

penalty phase ineffective assistance invalid and unreasonable under 28 U.S.C.

§2254(d). Accordingly, appellant will respectfully continue to direct this Court’s

attention to the unfairness of the state’s process.

STATEMENT OF THE CASE

Appellant was convicted and sentenced to death by the Tenth Judicial

Circuit Court in Jefferson County, Birmingham, Alabama, the Honorable Michael

W. McCormick, presiding. Appellant was convicted of capital murder on June 17,

1999 and was sentenced to death on July 19, 1999. Appellant timely appealed and

the Court of Criminal Appeals affirmed the judgment in all respects on April 28,

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2000, sub nom. James v. State, 532 U.S. 1040 (2001) (USSC Docket No. 009007). Upon a writ of certiorari to the Alabama Supreme Court, that court also

affirmed the judgment in all respects on April 28, 2000, sub nom. James v. State,

788 So.2d 185 (2000).

On May 7, 2002, Appellant filed a state petition for post-conviction relief

under Rule 32, thereby tolling the running of the one-year federal statute of

limitations with 14 days remaining, pursuant to 28 U.S.C. §2244(d)(1)(A). CR

159, 233. On December 5, 2003, the court granted an evidentiary hearing with

respect to some of Appellant’s claims, primarily claims of ineffective assistance of

counsel. CR Supp. 10. On June 6, 2004, an evidentiary hearing was held. In

essence, the evidence showed that counsel conducted virtually no investigation

into either the guilt or sentencing phases of the case and that had counsel done so,

substantial evidence could have been discovered and presented. Appellant also

sought funding from the court to retain three experts to assist in the evidentiary

hearing and presented declarations signed under penalty of perjury from three

potential expert witnesses. Dr. Pablo Stewart, a psychiatrist, and Dr. Karen

Froming, a neuropsychologist, both explained in their declarations, inter alia, that

Appellant had been born to parents who were mentally ill, in particular a father

who suffered from schizophrenia, and that testing needed to be conducted to

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determine whether Appellant suffered from mental illness himself. A third expert,

Russell Stetler, a mitigation specialist, explained how a mitigation investigation is

conducted, how the investigation conducted by the defense had fallen woefully

short of the standard of care applicable to capital defense counsel, and what steps

would have been taken by competent counsel to investigation appellant’s

background. The Circuit Court denied appellant’s request for expert assistance.

On October 28, 2004, the Circuit Court dismissed all Appellant’s claims by

signing without alteration a 103-page proposed final order prepared by the

Respondent. CR Supp. 2; CR Supp. 270-372. Appellant’s state appeals were all

ultimately denied on October 15, 2010, when the Alabama Supreme Court denied

certiorari.

On October 29, 2010, Appellant filed a timely habeas corpus petition in the

District Court for the Northern District of Alabama, seeking relief pursuant to 28

U.S.C. §2254. The district court denied relief in a final judgment entered on

December 30, 2014. Order, 2:10-cv-02929-CLS-HGD, Doc. 27. The district

court also denied a certificate of appealability (COA). Id., Doc. 27. On March 30,

2017, the district court denied James’s motion to alter or amend the judgment. Id.,

Doc. 40.

James timely filed his notice of appeal to this Court on April 28, 2017,

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seeking a certificate of appealability with respect to his claims of ineffective

assistance of counsel in both the guilt and penalty phases. On June 8, 2018, this

Court denied a COA regarding the claim of ineffective assistance in the guilt

phase but granted a COA as to Appellant’s penalty phase ineffective assistance

claim. 11th Cir. Order (6/8/18).

FACTUAL SUMMARY

At Appellant’s trial, the prosecution sought to show that Appellant had

stalked his former girlfriend, Faith Hall Smith (hereinafter, “Hall”), and ultimately

killed her out of jealousy because he could not have her himself. The

prosecution’s evidence showed that Appellant and Hall dated for a time in the

early 1990s, but broke up some time in late 1993 or early 1994. Trial RT1 147148. Hall’s mother and daughter testified that during their relationship Appellant

was violent with Hall. Id., Trial RT2 18. Hall’s mother testified that Hall lived

with her, and that after they broke up Appellant continued to stalk and harass Ms.

Hall so that Hall’s mother frequently had to “run him off.” Trial RT2 76. Hall’s

ex-husband testified that Appellant was jealous of his relationship with Hall and

once threatened to kill them both. Trial RT2 25-26.

In August, 1994, Ms. Hall’s friend, Tammy Sneed, lived in the first-floor

apartment of a three-story building at 2208-A 6th Court, near the intersection of

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23rd Street in downtown Birmingham. Id. 188, 212, 222. A woman named Bridget

Gregory lived in the second floor apartment immediately above Sneed’s

apartment, and a woman named Trenicha Holyfield lived on the third floor above

Gregory. Id. 188.

Gregory testified that on the evening of August 14, 1994, she saw Appellant

sitting on the steps of Holyfield’s apartment with a nine-millimeter pistol between

his legs. He told her he was waiting for a friend to come out of one of the

apartments. Trial RT2 39-40.

At about 6 p.m. on the following evening, August 15, 1994, Hall and Sneed

returned to Sneed’s apartment from a shopping trip with Sneed’s three young

children. Trial RT2 122. Seeing Appellant’s car, a red El Camino, parked in front

of the apartment, they quickly got out of Sneed’s car and ran into the apartment.

Trial RT2 43-44, 122-123. Gregory, who saw them running, came downstairs to

see what was wrong. Hall told Gregory she was afraid Appellant would kill her

and asked Gregory to call the police because Sneed did not have a telephone.

Trial RT2 43-35.

As Gregory was leaving the apartment, Appellant came running up to the

door holding a gun in one hand, shoved her out of the way, and pushed his way

into the apartment past Sneed and Hall, who were trying to shut the door on him.

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Trial RT2 47-48, 125. Sneed and Hall asked him to put the gun away, and he did

so, placing it in his belt. Trial RT 2 48, 127-128. Hall then ran to the bathroom,

and Appellant pulled his gun out and followed her. Sneed and Gregory heard

several gunshots coming from the back of the apartment. Trial RT2 48, 128.

Gregory re-entered the apartment, meeting Sneed at the front door, while

Appellant ran out the back. Trial RT2 48-49, 129. Appellant got into his car,

which was still running, and drove off. Trial RT2 50-51. Gregory yelled to a

group of people who had gathered nearby to call the police. Id.

When police arrived, Hall was dead on the bathroom floor in Sneed’s

apartment. A subsequent autopsy revealed that Hall had died as a result of

multiple gunshot wounds. One bullet passed through the biceps and chest, another

struck the abdomen, and the third entered the top of the head. Trial RT2 153, 161162, 195. Three spent lead bullets were found at the scene. Id. 242. A ballistics

witness testified that the bullets were either .38 caliber or .357 magnum bullets,

and were not nine millimeter bullets. Trial RT2 95. It could not be determined

whether they had been fired from the same gun, though it was possible that they

could have been. Trial RT2 97.

No witnesses were presented by the defense at either the guilt/innocence

phase or the sentencing phase. Appellant was convicted and sentenced to death.

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At the Rule 32 evidentiary hearing in postconviction, Appellant established

that trial counsel had performed virtually no investigation to prepare for either the

guilt or the sentencing phase of the trial. However, Appellant presented six

witnesses who testified that they would have appeared and testified on Appellant’s

behalf if they had been asked and could have presented extensive evidence

regarding Appellant’s impoverished, abusive childhood, family history of

schizophrenia, Appellant’s own mental illness– demonstrated through testing

administered by the Alabama Department of Corrections– and other evidence in

mitigation. Because funding for investigation and experts had been denied by the

court, Appellant also proffered, in the form of affidavits, the statements of a

psychiatrist, neuropsychologist, and mitigation specialist regarding Appellant’s

mental illness and background. Appellant had repeatedly requested funding for

these experts and an investigator, but these requests were all denied.1

Appellant also sought to present the testimony of a witness named Mara

Ruffin, Appellant’s former fiancee and the mother of his two children, who would

have testified that she and Appellant had been stalked by the victim, Faith Hall

1

/ The state provided no funding for post-conviction counsel or expenses.

Appellant’s post-conviction counsel, a California solo practitioner, personally

provided all funds for travel and investigation expenses and performed most of the

investigation himself.

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Smith, for a period prior to the homicide; that Hall had assaulted them by

smashing the window of their pickup truck with a tire iron while they were parked

in line at a McDonald’s restaurant, spraying Ruffin with broken glass; and that

Hall had chased Ruffin across town in her car while her infant daughter was in the

car with her. This testimony would have contradicted the prosecution’s theory at

trial and shown that Hall was not the innocent victim of a stalker but was herself a

violent stalker involved in a romantic triangle, and also would have helped to

prove that Appellant went to see Hall on the day of the incident not to kill her but

to warn her to stay away from his fiancee.

However, when Ms. Ruffin failed to appear at the evidentiary hearing in

response to a subpoena, the court denied Appellant’s request for a bench warrant

to compel her to testify. Appellant did present court records showing that trial

counsel could have discovered the facts of Hall’s tire iron attack on Appellant and

Ms. Hall simply by typing in Hall’s name on the public computer on the counter of

the Circuit Court clerk’s office. Appellant also showed that trial counsel’s

contention that Appellant would not provide any helpful information to counsel

was not true, and that counsel’s own handwritten notes contained the story of

Hall’s assault on Appellant and Ruffin which trial counsel had obtained from

Appellant during their first meeting. Appellant also showed that he had given trial

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counsel the names and location information of several potential witnesses,

including Ruffin and their two daughters, and that trial counsel had made no effort

to contact them.

In spite of the evidence at the evidentiary hearing, the Circuit Court

dismissed all of Appellant’s claims by signing, without alteration, a 103-page

order written entirely by the deputy attorney general assigned to the case. A letter

of instructions from the deputy attorney general to the Circuit Court judge,

obtained by Appellant, plus numerous obvious typographical errors in the order,

strongly suggest that the judge did not even read the order before signing it.

STATEMENT REGARDING ORAL ARGUMENT

If it would assist the court, Appellant respectfully requests oral argument at

the Court’s convenience. Appellant notes that his counsel would be traveling from

the west coast.

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ARGUMENT

I. Appellant Was Deprived of the Effective Assistance of Counsel in the

Penalty Phase, and Reversal is Required.2

A. Standards of Review

In order to demonstrate the merits of a claim of ineffective assistance of

counsel, a defendant must show both that counsel’s performance was deficient (the

performance prong) and that the deficiency prejudiced the defense (the prejudice

prong). Strickland v. Washington, 466 U.S. 668, 687 (1984).

In assessing the performance prong, the reviewing court must find that the

deficiency of counsel fell below an objective standard of reasonableness under

prevailing professional norms. Strickland, 466 U.S. at 688; Wiggins v. Smith, 529

U.S. at 521. “Prevailing norms of practice as reflected in American Bar

Association standards and the like, e.g., ABA Standards for Criminal Justice 4-1.1

to 4-8.6 (2d ed. 1980) (“The Defense Function”), are guides to determining what is

reasonable . . .” Strickland, 466 U.S. at 688. In capital cases, the ABA Guidelines

on the Appointment and Performance of Counsel in Death Penalty Cases (2003)

2

/ Appellant’s Claim II alleged ineffective assistance of counsel in the

sentencing phase of Appellant’s trial and was based on several errors. However,

due to length limitations, Appellant will focus here solely on counsel’s failures to

investigate or present mitigation or social history evidence. Habeas corpus relief

on this claim was clearly compelled.

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set forth the “well-defined norms” by which the reasonableness of counsel’s

performance should be judged.3 Wiggins v. Smith, 539 U.S. at 524. Such

professional standards are useful as guides to what is reasonable “to the extent

they describe the professional norms prevailing when the representation took

place.” Bobby v. Van Hook, 558 U.S. 4, 7 (2009).

In assessing the prejudice prong, the reviewing court must find “a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Strickland, 466

3

/ The 2003 Guidelines were formally adopted by the ABA four years after

the trial in this case. However, the 2003 Guidelines are merely a more detailed

amplification of principles set out in the 1989 Guidelines and, at least as relevant

to this case, are not materially different. Compare, 1989 ABA Guidelines 11.8.3

and 11.8.6 with 2003 Guideline 10.7 and Comment thereto. “[T]he standards

merely represent a codification of longstanding, common-sense principles of

representation understood by diligent, competent counsel in death penalty cases.

The ABA standards are not aspirational in the sense that they represent norms

newly discovered after Strickland. They are the same type of longstanding norms

referred to in Strickland in 1984 as ‘prevailing professional norms’ as ‘guided’ by

‘American Bar Association standards and the like.’” Hamblin v. Mitchell, 354 F.3d

482, 487 (6th Cir. 2003). It is noteworthy that in ineffective assistance cases, the

United States Supreme Court has implicitly recognized this principle by frequently

applying professional standards and guidelines that were not formally adopted

until after the underlying trial in the case at hand. See, e.g., Wiggins v. Smith,

supra, 510 U.S. at p. 524 (applying 1989 Guidelines to 1986 trial; Strickland v.

Washington, supra, 466 U.S. at 688 (applying 1980 ABA Standards for Criminal

Justice to 1976 trial).

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U.S. at 694. However, “a defendant need not show that counsel’s deficient

conduct more likely than not altered the outcome in the case.” Id. at 693-694. The

standard is thus less than a preponderance of the evidence. “The result of a

proceeding can be rendered unreliable, and hence the proceeding itself unfair,

even if the errors of counsel cannot be shown by a preponderance of the evidence

to have determined the outcome.” Id. at 694.

B. Standard of Care for Penalty Phase Counsel

The Sixth, Eighth, and Fourteenth Amendments to the United States

Constitution guarantee a capital defendant competent counsel at the penalty phase

of his trial. Williams v. Taylor, 529 U.S. 362, 394-395 (2000); Brownlee v. Haley,

306 F.3d 1043 (11th Cir. 2002). At a minimum, competent penalty-phase

performance requires that counsel must conduct an investigation into the history

and background of the defendant “to discover all reasonably available mitigating

evidence and evidence to rebut any aggravating evidence that may be introduced

by the prosecutor.” Wiggins v. Smith, 539 U.S. 510, 524 (2003); Rompilla v.

Beard, 545 U.S. 374, 387, n. 7; see also, ABA Guidelines 10.4, 10.7. Counsel

must conduct this investigation well in advance of trial and cannot wait until as

late as a week before the trial to begin preparing for the penalty phase of the trial.

ABA Guideline 10.7, Comment; Brownlee v. Haley, supra, 306 F.3d at 395.

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Counsel’s investigation must be conducted “regardless of any statement by

the client that evidence bearing upon penalty is not to be collected or presented.”

ABA Guideline 10.7. Counsel must “seek out and interview” all “witnesses

familiar with aspects of the client’s life history,” such as “members of the client’s

immediate and extended family,” and “neighbors friends and acquaintances who

knew the client or his family.” ABA Guideline 10.7; 1989 Guideline 11.8.3.

Immediately upon entry into the case, counsel must explore “the existence

of other potential sources of information relating to . . . , the client’s mental state, .

. . and any mitigating factors.” ABA Guideline 10.7, Comment. Counsel must

“obtain necessary releases for securing confidential records” relating to the

client’s history. ABA Guideline 10.7, Comment. Counsel must gather medical

records, social service records, juvenile and criminal records, and similar

documentary evidence which may shed light on the defendant’s background and

upbringing and provide leads for further investigation. ABA Guideline 10.7,

Comment; Brownlee v. Haley, supra, 306 F.3d at 395. “Records should be

requested concerning not only the client, but also his parents, grandparents,

siblings, and children.” ABA Guideline 10.7, Comment. Counsel must “assemble

the documentary record of the defendant’s life, collecting school, work, and prison

records which might serve as sources of relevant facts.” ABA Guideline 10.7,

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Comment, n. 213. Counsel must conduct this investigation well in advance of trial

and cannot wait until as late as a week before the trial to begin preparing for the

penalty phase of the trial. ABA Guideline 10.7, Comment; Brownlee v. Haley,

supra, 306 F.3d at 395.

In recent years, the United States Supreme Court has repeatedly emphasized

that capital counsel perform ineffectively if they fail to conduct a thorough

mitigation investigation. The Supreme Court has also repeatedly reversed other

capital cases in which the quality of the penalty phase representation far exceeded

the quality of the indolent representation Appellant received in this case. See,

Williams v. Taylor, 529 U.S. 362. 395-396 (2000) (death sentence reversed even

though sentencing phase defense was presented because counsel had not “fulfilled

their obligation to conduct a thorough investigation of the defendant's

background,” waited until a week before trial to begin conducting a mitigation

investigation, and then failed to uncover extensive social history records

graphically describing the defendant’s “nightmarish childhood”); Wiggins v.

Smith, 539 U.S. 510, 524 (even though counsel obtained and reviewed a

presentence report containing social history information, gathered records from the

Maryland Department of Social Services recording incidents of the defendant’s

physical and sexual abuse, alcoholic mother, placements in foster care, and

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borderline retardation, and also retained a psychologist to administer a number of

tests on the defendant, counsel performed incompetently because they failed to

seek out “all reasonably available mitigating evidence” and specifically failed to

hire a social worker to prepare a social history); Rompilla v. Beard, 545 U.S. 374,

381, 387 (2005) (death sentence reversed in spite of the fact that trial counsel had

conducted an extensive investigation, including conducting detailed interviews

with the client and five of his family members and retaining three mental health

experts, and in spite of the fact that the client was not only uncooperative but

actually obstructed their efforts, because trial counsel had failed to examine the

court file on the defendant’s prior conviction).

For counsel to compile a comprehensive, reliable and well-documented

social history, investigation must therefore begin immediately upon counsel’s

entry into the case. (See ABA Guidelines, 11.4.1.) As the United States Supreme

Court noted in Williams, it was unreasonable for counsel to wait until one week

before trial to prepare for the penalty phase, thus resulting in a failure to

adequately investigate and put on mitigating evidence. (Williams v. Taylor, supra,

529 U.S. at p. 395.)

It should be noted that in all three of the foregoing cases, the United States

Supreme Court reversed decisions of the lower courts which had upheld the

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defendants’ death sentences, holding that the state courts’ determinations that

counsel had acted competently or that counsel’s incompetence had not prejudiced

the defendant were not merely incorrect but were also objectively unreasonable.

See, e.g., Williams v. Taylor, supra, 529 U.S. at p. 397-398; Wiggins v. Smith.,

supra, 539 U.S. at pp. 528-529; Rompilla v. Beard, supra, 545 U.S. at 389-390.

It is also important to note that the standard of care on which Appellant relies was

well established long before trial in this case. Indeed, in all the foregoing cases

plus the case of Porter v. McCollum, 558 U.S. 30, 40 (2009), on which Appellant

also relies, the United States Supreme Court found counsel fell below the standard

of care at the time of trials that were held at least ten years before the trial in

Appellant’s case. The trials in these cases respectively date to 1986 (Williams),

1988 (Rompilla and Porter), and 1989 (Wiggins); Appellant’s trial was held in

1999.

C. Trial Counsel Performed Incompetently Under the Standard of

Care Clearly Established by the United States Supreme Court

Although the requirement that counsel investigate to find “all reasonably

available mitigation evidence” applied to all capital trials tried at least as early as

1986, see Wiggins, supra, neither of Appellant’s attorneys conducted any

meaningful mitigation investigation. Second-chair counsel testified that he

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conducted no mitigation investigation at all. He testified, “I don’t think I thought

beyond the trial itself, trying to get to the mitigation phase.” RT 166. He agreed

that “it would be fair to say” that he was not thinking about mitigation. RT 166.

“It wasn’t on my radar screen.” RT 167. This was a clear admission of

incompetent performance.

Lead counsel did no better. She testified that she had done no recordgathering at all. RT 240, 251. She did not retain an investigator, a mitigation

specialist, a psychologist, a psychiatrist, or a neuropsychologist. RT 251. Thus,

there was no defense team even to begin conducting an investigation. Counsel

also did no meaningful investigation of her own. Prior to trial, she made exactly

one telephone call to Appellant’s step-grandmother and returned one phone call

that had been placed to her by Appellant’s mother. RT 241. Apart from these two

phone conversations, only one of which she originated, she spoke to no members

of Appellant’s family before trial began.4 RT 241. She admitted that, apart from

4

/ Counsel also spoke briefly with petitioner’s mother, stepfather, and sister

at the trial itself, but only because these three people came to the trial on their own

and “surprised” counsel, who apparently had not even told them when trial was to

occur. CR 1525. Based upon counsel’s time sheets, it is clear that the

conversations with petitioner’s mother and step-father occurred after the guilt

verdict was returned, and the conversation with petitioner’s sister appears to have

occurred after presentation of the prosecution’s guilt phase case was completed.

CR 2752. Obviously, conversations conducted after the guilt phase is over with

individuals who have contacted counsel on their own do not qualify as

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her conversations with Appellant himself, this was the entire extent of the

mitigation investigation. RT 251. Thus, under the prevailing standard of care and

binding United States Supreme Court precedent, counsel was grossly incompetent

in failing to investigate. RT 240.

Incredibly, however, the state court found this pathetic non-investigation to

be sufficient to satisfy the competence prong of Strickland. CR SUPP 359. The

Circuit Court order found it “obvious” from the record and the hearing that

counsel conducted a “limited” investigation and did not present mitigating

evidence. CR SUPP 359. However, the order found this did not constitute

deficient performance because, according to the order, Appellant’s family was

“unwilling to help” and Appellant himself “refused to provide counsel with any

information.” CR SUPP 359. The order concluded that “[t]he absence of nonstatutory mitigation is attributable not to trial counsel, but to Mr. James and his

family.” CR SUPP 360.

However, the order’s conclusions are flatly contradicted by the facts that

emerged at the hearing. The record clearly does not show that Appellant’s family

was “unwilling to help.” To the contrary, it shows that counsel made no

investigation by counsel. ABA Guidelines 107; Blanco v. Singletary, 943 F.2d

1477, 1501-1502 (11th Cir. 1991).

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meaningful effort to contact, interview, or even locate Appellant’s family. Lead

counsel’s entire effort to contact Appellant’s family consisted of placing one

phone call to Appellant’s elderly step-grandmother, and returning one other phone

call from Appellant’s mother. RT 241-242. Counsel made no other attempt to

contact any of Appellant’s family members, even though all his siblings’ names

were listed in the 1996 presentence report in counsel’s own file. RT 244-246;

Exh, 37. Counsel made no attempt to contact Appellant’s aunts, and no attempt to

track down Appellant’s father or other family members. Counsel made no attempt

to contact Mara Ruffin, the mother of Appellant’s two children, even though

Appellant gave counsel her name and number on December 31, 1998 (see below)

and in spite of the fact that the names of Appellant’s two daughters were also

listed in the 1996 presentence report. RT 247-248; Exh. 37. Each of the social

history witnesses who testified at the hearing, including three of Appellant’s

family members, stated that they would have come to court and testified if they

had been contacted by the defense and asked to testify, and Appellant’s sister

testified she would have given counsel the names of many other witnesses to

interview for mitigation purposes if counsel had only asked her. All this testimony

went uncontradicted and unchallenged. RT 29, 72, 88, 112-113. At most, the

evidence shows that Appellant’s mother was reticent to testify in court, but it also

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shows that many other family and social history witnesses were available and

willing to help. Thus, the order’s conclusion that Appellant’s “family” was

unwilling to help contradicts the record.

Secondly, the order’s conclusion that Appellant himself refused to cooperate

with counsel in the sentencing phase or permit counsel to put on mitigating

evidence is also clearly false. Although lead counsel repeatedly sought to blame

her failure to investigate on Appellant’s supposed lack of cooperation, the record

clearly and repeatedly demonstrated that she was lying about this very matter. For

example, while counsel contended in both her testimony and her sworn prehearing affidavit that Appellant refused to cooperate or give her information about

the homicide, CR 1519; RT 211, it was demonstrated at the hearing that Appellant

had in fact given her a complete explanation of his version of the events of the

killing the very first time they met. This fact was established by handwritten notes

made by lead counsel herself at her first meeting with Appellant on December 31,

1998, notes which completely summarized Appellant’s version of events. When

confronted with these notes, lead counsel admitted that her own sworn affidavit

was false in stating that Appellant would not talk about the incident or give her

any information. RT 215; Exh. 37.

Nor was this lead counsel’s only lie. Although counsel contended in her

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affidavit that she had never heard that Appellant had a girlfriend, CR 1526,

counsel admitted that her own notes from her first meeting with Appellant also

showed he had given counsel his girlfriend’s name, telephone number, and even

social security number, and that her affidavit was therefore also false in this

respect. RT 246-248; Exh. 37. Although counsel initially testified that Appellant

had never told her that the victim had attacked him and his girlfriend with a tire

iron, she admitted that her notes showed he had given her the full story of this

incident– a story later confirmed by a police report on file at the Brighton Police

Department, which of course counsel never bothered to obtain. RT 211, 215; Exh,

37. Although counsel stated in her affidavit and testimony that Appellant would

not give her any names of family members or others from whom she could obtain

mitigating evidence, she admitted on the stand that Appellant had given her the

name and phone number of his step-grandmother, and as shown previously her

own notes also show he had given her the name and contact information of his

girlfriend, Mara Ruffin. CR 1525; RT 221, 243, 246-247, 258; Exh. 37.

Accordingly, counsel’s self-serving statements attempting to place the blame on

Appellant for her own lack of investigation were admitted to be false by counsel

herself, and the order’s conclusions to the contrary are clearly erroneous and

objectively unreasonable.

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Moreover, even if the final order had been correct in concluding that

Appellant and his family had been uncooperative, the law does not excuse counsel

from failing to investigate or present mitigating evidence on this basis. In a capital

case, counsel must conduct an independent investigation of the circumstances of

the case and must seek to obtain all reasonably available evidence in mitigation

even if the defendant does not provide assistance or cooperation, objects to the

presentation of mitigation evidence, and/or refuses to testify. See e.g. Rompilla v.

Beard, supra, 545 U.S. at p. 377 [counsel found ineffective “even when a capital

defendant’s family members and the defendant himself have suggested that no

mitigating evidence is available” and despite consulting mental health experts];

Porter v. McCollum, supra, 558 U.S. 30, 40, [counsel found ineffective despite a

“fatalistic and uncooperative” client who instructed counsel “not to speak with

Porter’s ex-wife or son,” because “that does not obviate the need for defense

counsel” to conduct a mitigation investigation]; Blanco v. Singletary, 943 F.2d

1477 (11th Cir.1991) [trial counsel ineffective for failing to adequately investigate

and present mitigating evidence even though the defendant, Blanco, instructed his

attorneys not to call any family members or acquaintances to testify at the penalty

phase]; Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir. 1986) [attorney

required to investigate mitigation evidence even if defendant instructs him not to

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and refuses to testify]; Battenfield v. Gibson, 236 F.3d 1215 (10th Cir. 2001)

[defendant’s alleged “waiver” of right to present mitigating evidence invalid

because counsel had not adequately explained what mitigation evidence was; also,

the state court’s holding that counsel’s duty to investigate mitigation was absolved

by defendants lack of cooperation was an unreasonable application of Strickland];

Carter v. Bell, 218 F.3d 581 (6th Cir. 2001) [fact that family was uncooperative

and defendant was strongly opposed to presenting mitigation evidence does not

relieve counsel of duty to investigate]; Johnson v. Baldwin, 114 F.3d 835 (9th Cir.

1997) [even where defendant lies to counsel, counsel must still conduct

investigation to determine whether defendant’s story is credible]. See also, 1989

ABA Guidelines 11.4.1(B-C); 2003 ABA Guideline 10.7(a)(2);

The state court’s conclusion that Appellant somehow “waived” or is

“estopped” from asserting ineffective assistance in failing to investigate due to

Appellant’s alleged failure to cooperate, even if that allegation were true, is

objectively unreasonable under United States Supreme Court authority and this

Court’s own caselaw. (CR SUPP 360.) Under the Eighth and Fourteenth

Amendments, until counsel has conducted a thorough and constitutionally

adequate investigation, explained to the defendant what evidence is available,

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explained to the defendant what the purpose of mitigating evidence is and why it

is significant, and then obtained an express waiver, and until the trial court has

placed all these facts on the record and conducted its own inquiry into the

defendant’s understanding of the significance of his decision, no knowing and

intelligent waiver of the right to present mitigating evidence can be made.

Battenfield v. Gibson, supra, 236 F.3d 1215, 1231-1233, also 1231, n. 8, and

cases there cited. Any state court finding to the contrary will be held “patently

unreasonable.” Id., at p. 1233.

This case also bears striking resemblances to this Court’s decision in

Blanco, supra. In Blanco, as in this case, the defendant gave counsel the names of

some potential mitigation witnesses but counsel did not interview them prior to

trial, ask those witnesses for more leads, or conduct any other mitigation

investigation. This Court found this constituted deficient performance.

Blanco's counsel needed to talk to the witnesses suggested by Blanco,

determine whether they could provide helpful testimony, and seek

leads on other possible witnesses. From what we can determine, this

was not done prior to trial. Once trial started, counsel were too

hurried to do an adequate job. To save the difficult and

time-consuming task of assembling mitigation witnesses until after

the jury's verdict in the guilt phase almost insures that witnesses will

not be available. No adequate investigation was conducted in this

case.

Id., at pp. 1501-1502.

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As the attorneys did in this case, the attorneys in Blanco also attempted to

place the blame for their own incompetence on the defendant. In an evidentiary

hearing held after they had been accused of ineffective assistance, the attorneys

contended that when they discussed with the defendant what witnesses to call,

Blanco “started acting irrationally”; “his whole demeanor really

changed at that point.” “He didn't respond. . . . He was not responding

to his attorneys in terms of you would explain something and you

would say, this is the reason for it, and, you know, it would just be

like talking to a wall.” [Attorney] Rodriguez also stated that Blanco

was uncommunicative and easily angered. According to Rodriguez,

after the jury returned its guilty verdict, Blanco became further

depressed and unresponsive. This testimony is confirmed by the

statements Blanco made during his discussions with the trial judge to

the effect that he believed his attorneys were “lying to my face.”

During the precise period when Blanco's lawyers finally got around to

preparing his penalty phase case, Blanco was noticeably morose and

irrational.

Id., at p. 1502.

Accordingly, as the state is attempting to do here, the government in Blanco

argued that Blanco was at fault for the fact that no mitigation was presented

because he had “instructed his attorneys not to call any family members or

acquaintances to testify.” Id., atp. 1502. However, this Court reiterated its earlier

holding that

“a defendant's desires not to present mitigating evidence do not

terminate counsels' responsibilities during the sentencing phase of a

death penalty trial: “The reason lawyers may not ‘blindly follow’ such

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commands is that although the decision whether to use such evidence

is for the client, the lawyer first must evaluate potential avenues and

advise the client of those offering potential merit.”

Id., at p. 1502.

This Court also found that “this case points up an additional danger of

waiting until after a guilty verdict to prepare a case in mitigation of the death

penalty: Attorneys risk that both they and their client will mentally throw in the

towel and lose the willpower to prepare a convincing case in favor of a life

sentence.” Id., at p. 1503. This court concluded that “the ultimate decision that

was reached not to call witnesses was not a result of investigation and evaluation,

but was instead primarily a result of counsels’ eagerness to latch onto Blanco’s

statements that he did not want any witnesses called.” Ibid. With respect to the

attorneys’ contentions that Blanco had acted irrationally, been argumentative, and

been uncooperative with them, this Court found that for these very reasons,

contrary to the state’s argument, “counsel therefore had a greater obligation to

investigate and analyze available mitigation evidence.” Ibid., emphasis added.

As in Blanco, counsel’s self-serving contentions in this case that Appellant

would not cooperate were revealed at the hearing to be false. It is clear from

counsel’s own notes that Appellant actually did cooperate and provided counsel

with names and contact information for at least his step-grandmother and his

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fiancee, who was also the mother of his two daughters, and that counsel’s

contentions to the contrary were lies. However, even if Appellant had refused to

cooperate or provide the names of any individuals for counsel to interview,

counsel must still conduct an investigation, and the evidence at the hearing

showed that counsel failed to do so even though they had ample leads with which

to begin such an investigation that did not require Appellant’s cooperation.

For example, while counsel admitted on the stand that she conducted no

record gathering at all, the presentence report from Appellant’s first trial was in

counsel’s own files the moment she took over the case in December, 1998– six

months prior to trial. This report contained the names of all of Appellant’s five

siblings and his two daughters, a list of his prior employers, a list of schools he

had attended, and other leads for investigation that counsel never pursued. CR

2729-2731. Alternatively, had counsel obtained a discovery order from the court,

they could have collected Appellant’s custodial and medical documents in the

possession of the Department of Corrections and Holman Prison, as postconviction counsel was able to do. Counsel then would have discovered not only

additional social history information but substantial credible information

indicating that Appellant suffered from serious mental problems, including the

results of psychological testing reporting Appellant’s schizoid characteristics and

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possible thought disorder. CR 2661-2667. As this Court noted in Cummings v.

Sec’y for the Dep’t of Corrections, 588 F.3d 1331, 1358 (11th Cir. 2009), the

principle that “an attorney not not ‘blindly follow’ a client’s instructions not to

investigate or use mitigating evidence . . . especially holds true where a possible

impairment prevents the client from exercising proper judgment.” Id., citing

Dobbs v. Turpin, 142 F.3d 1383, 1387-1388 (11th Cir. 1998).

The foregoing are only two of a host of obvious methods counsel could

have used to begin a mitigation investigation without any information or

assistance from Appellant. Under the circumstances, counsel’s attempt to blame

Appellant for their own lack of investigation smacks of desperation, and the state

court’s acceptance of counsel’s contention was objectively unreasonable.

D. Counsel’s Failure to Investigate Was Prejudicial

The state court’s conclusion that counsel’s failure to investigate was not

prejudicial is also objectively unreasonable. Although Appellant was severely

hampered at the hearing by the Court’s refusal to provide funds for investigators

or mental health experts, Appellant nevertheless managed to make a very

substantial showing of prejudice from counsel’s failure to investigate or present

any mitigating evidence, a showing much greater than the minimal level required

to compel reversal.

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The standards of prejudice for an ineffective assistance claim were set forth

above. See Section A, supra. It bears repeating, however, that a capital defendant

need not show that it is more likely than not that he would have received a life

sentence had his attorneys performed competently. A reasonable probability is

less than a preponderance of the evidence. Strickland, supra, at p. 698. Even if

the new evidence is not entirely favorable to the defendant or would leave some

aggravating evidence (e.g., future dangerousness) unrebutted, evidence of a

defendant’s difficult childhood, poverty, mental problems, and similar background

and character evidence will be sufficient to establish prejudice from counsel’s

failure to perform effectively if that evidence “might well have influenced the

jury's appraisal of his moral culpability.” Williams v. Taylor, supra, at p. 398.5

5

/ As this Court correctly noted in its order granting a COA, “the district

court’s conclusion that Petitioner would have had to change the mind of at least

seven jurors to change the outcome of the sentencing was incorrect.” Order

(6/8/18) at 21, n. 6. Under Alabama Code §13A 5-46(f), “[t]he decision of the

jury to recommend a sentence of death must be based on a vote of at least 10

jurors.” Thus, if only three jurors had been persuaded to vote for life, the outcome

would have been more favorable to Appellant.

Moreover, Appellant respectfully submits that the district court’s reasoning

was based upon a faulty premise. No United States Supreme Court decision

Appellant has found suggests that a reviewing court conducting Strickland

prejudice analysis may properly consider the number of jurors that would have

needed to change their verdict for the defendant to prevail on his claim. To the

contrary, under Strickland if there is a reasonable probability, i.e., a probability

less than a preponderance of the evidence, of a more favorable outcome, prejudice

is established and reversal is required. If a reasonable probability exists that one

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Under the foregoing standards, Appellant’s showing of mitigating evidence

was far more than was required to compel reversal. It must be remembered that

counsel in this case presented no mitigating evidence at all at trial. By

comparison, the mitigating evidence presented at trial in Wiggins, Rompilla, and

Sears v. Upton, 561 U.S. 945, was extensive, yet the United States Supreme

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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