Opposition Brief — Joe Nathan James, Petitioner v. Terry Raybon, Warden, et al.
Supreme Court briefJan 22, 2021
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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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Date Filed: 10/24/2018
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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
vi
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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
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