Opposition Brief — Donald Dallas, Petitioner v. Terry Raybon, Warden

Supreme Court briefJun 10, 2021

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No. 20–7589

CAPITAL CASE

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In the SUPREME COURT of the UNITED STATES

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DONALD DALLAS,

Petitioner,

TERRY RAYBON, Warden,

Respondent.

──────────────────────────────────

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

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BRIEF IN OPPOSITION

════════════════════════════════════════

STEVE MARSHALL

Attorney General

Edmund G. LaCour Jr.

Solicitor General

Henry M. Johnson*

Assistant Attorney General

Office of the Attorney General

501 Washington Avenue

Montgomery, Alabama 36130

(334) 242–7300

Henry.Johnson@AlabamaAG.gov

*Counsel of Record

Counsel for Respondent

CAPITAL CASE

QUESTIONS PRESENTED

(Rephrased)

The Eleventh Circuit applied de novo review in adjudicating Donald

Dallas’s penalty-phase ineffectiveness claim. The court of appeals reweighed the

totality of his mitigation evidence, including the new evidence that is essentially

cumulative of the evidence presented at his trial, against the aggravating

circumstances and determined that he failed to establish that he was prejudiced by

his counsel’s performance. Should this Court deny certiorari where the Eleventh

Circuit properly followed Strickland v. Washington, 466 U.S. 668 (1984), and its

progeny and correctly denied Dallas’s claim?

The Alabama Court of Criminal Appeals denied Dallas’s claim that his

right to conflict-free counsel was violated where his lead counsel simultaneously

represented the Alabama Department of Mental Health and Mental Retardation at

the time of his trial.

Applying AEDPA’s deferential standard of review, the

Eleventh Circuit determined that the state court’s denial of his claim was neither

contrary to nor an unreasonable application of then-existing clearly established

federal law or based on an unreasonable determination of the facts. 28 U.S.C. §

2254(d). Should this Court deny certiorari where this case is a poor vehicle for

deciding whether federal habeas courts can consider precedent from this Court postdating a state-court decision in determining whether that decision was reasonable

because the Eleventh Circuit properly applied this Court’s precedents as of the time

of the state court’s decision in correctly denying his claim?

RELATED CASES

Underlying Trial and Direct Appeal:

State of Alabama v. Donald Dallas, CC–94–2142, Circuit Court of Montgomery

County, Alabama.

Judgment Entered: November 16, 1995.

State v. Dallas, CR–95–354, 711 So. 2d 1101 (Ala. Crim. App. 1997), Alabama Court

of Criminal Appeals.

Judgment Entered: March 21, 1997.

Rehearing Denied: May 23, 1997.

Ex parte Dallas, No. 1961457, 711 So. 2d 1114 (Ala. 1998), Alabama Supreme

Court.

Judgment Entered: March 13, 1998.

Dallas v. Alabama, No. 97–9579, 525 U.S. 860 (1998) (mem.).

Supreme Court.

Judgment Entered: October 5, 1998.

United States

State Postconviction Proceeding (Rule 32) and Appeal:

Dallas v. State, CC–94–2142.60, Circuit Court of Montgomery County, Alabama.

Judgment Entered: September 25, 2001.

Dallas v. State, CC–94–2142.60, Circuit Court of Montgomery County, Alabama.

Motion to Alter, Vacate, or Amend Denied: October 29, 2001.

Dallas v. State, CR–01–0488, Alabama Court of Criminal Appeals.

Appeal Dismissed: December 7, 2001.

Dallas v. State, CC–94–2142.60, Circuit Court of Montgomery County, Alabama.

Granting Motion to Toll Time for Appeal: February 12, 2002.

Dallas v. State, CR–01–1088, Alabama Court of Criminal Appeals.

Appeal Stricken: March 1, 2002.

Ex parte Dallas, No. 1011134, (Ala. 2002), Alabama Supreme Court.

Judgment Entered: June 28, 2002.

iii

Federal Habeas (2254) and Appeal:

Dallas v. Dunn, No. 2:02–cv–00777, United States District Court for the Middle

District of Alabama, Northern Division.

Judgment Entered: July 14, 2017.

Dallas v. Warden, No. 17–14570, 964 F.3d 1285 (11th Cir. 2020), Eleventh Circuit

Court of Appeals.

Judgment Entered: July 13, 2020.

TABLE OF CONTENTS

QUESTIONS PRESENTED.........................................................................................ii

RELATED CASES .......................................................................................................iii

TABLE OF CONTENTS............................................................................................... v

TABLE OF AUTHORITIES .......................................................................................vii

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

Statement of the Facts ................................................................................. 1

The Proceedings Below ................................................................................ 3

REASONS FOR DENYING THE PETITION ............................................................. 7

I. The Eleventh Circuit correctly followed Strickland and this Court’s

other precedents and did not create a circuit split in holding that

Dallas failed to establish that he was prejudiced by his counsel’s

performance at the penalty phase of his trial. ...................................................... 8

The Eleventh Circuit’s decision does not conflict with

Strickland or this Court’s other precedents. ............................................... 9

The Eleventh Circuit’s decision neither contributed to nor

created a circuit split.................................................................................. 20

II. This case is a poor vehicle for deciding whether federal habeas

courts can consider precedent from this Court post-dating a

state-court decision in determining whether the decision was

reasonable because the Eleventh Circuit based its correct

determination that the CCA’s denial of Dallas’s conflict-ofinterest claim was reasonable on this Court’s precedent as of the

time of the CCA’s decision. ............................................................................... 26

This case is a poor vehicle for deciding the question

presented because the Eleventh Circuit applied this Court’s

precedents as of the time of the CCA’s decision in holding

that the CCA’s denial of Dallas’s claim was reasonable........................... 27

The Eleventh Circuit correctly held that the CCA’s denial of

Dallas’s conflict-of-interest claim was reasonable. ................................... 30

III. This Court should deny certiorari because Dallas did not file a

timely certiorari petition. ................................................................................. 37

CONCLUSION............................................................................................................ 40

TABLE OF AUTHORITIES

Cases

Abdul-Salaam v. Sec’y, Penn. Dep’t of Corr.,

895 F.3d 254 (3d Cir. 2018)...................................................................................... 24

Anderson v. Kelley,

938 F.3d 949 (8th Cir. 2019) .................................................................................... 22

Beets v. Scott,

65 F.3d 1258 (5th Cir. 1995) .................................................................................... 34

Bond v. Beard,

539 F.3d 256 (3d Cir. 2008)...................................................................................... 24

Broom v. Mitchell,

441 F.3d 392 (6th Cir. 2006) .................................................................................... 21

Busby v. Davis,

925 F.3d 699 (5th Cir. 2019) .................................................................................... 21

Clark v. Mitchell,

425 F.3d 270 (6th Cir. 2005) .................................................................................... 21

Cooper v. Sec’y, Dep’t of Corr.,

646 F.3d 1328 (11th Cir. 2011) ................................................................................ 23

Cullen v. Pinholster,

563 U.S. 170 (2011) ............................................................................................ 10, 11

Cuyler v. Sullivan,

446 U.S. 335 (1980) ...................................................................................... 27, 33, 34

Dallas v. State,

711 So. 2d 1101 (Ala. Crim. App. 1997), aff’d, 711 So. 2d 1114

(Ala. 1998), cert denied, 525 U.S. 860 (1998)................................................. 5, 34, 36

Dallas v. Warden,

964 F.3d 1285 (11th Cir. 2020) .................................................................................. 6

Eddmonds v. Peters,

93 F.3d 1307 (7th Cir. 1996) .................................................................................... 24

vii

Escamilla v. Stephens,

749 F.3d 380 (5th Cir. 2014) .................................................................................... 21

Garcia v. Bunnell,

33 F.3d 1193 (9th Cir. 1994) .................................................................................... 34

Glasser v. United States,

315 U.S. 60 (1942). ............................................................................................. 31, 32

Griffin v. Pierce,

622 F.3d 831 (7th Cir. 2010). ................................................................................... 25

Harrington v. Richter,

562 U.S. 86 (2011) .............................................................................................. 27, 30

Hill v. Mitchell,

400 F.3d 308 (6th Cir. 2005) .................................................................................... 21

Hilton v. Braunskill,

481 U.S. 770 (1987) .................................................................................................. 38

Holloway v. Arkansas,

435 U.S. 475 (1978) ...................................................................................... 27, 32, 34

Holmes v. Trout,

32 U.S. 171 (1833) .................................................................................................... 13

Holsey v. Warden, Ga. Diagnostic Prison,

694 F.3d 1230 (11th Cir. 2012) ................................................................................ 22

Johnson v. Sec’y, Dep’t of Corr.,

643 F.3d 907 (11th Cir. 2011) .................................................................................. 23

Kernan v. Cuero,

138 S. Ct. 4 (2017) .............................................................................................. 30, 34

Kimmelman v. Morrison,

477 U.S. 365 (1986) .................................................................................................... 9

Lawn v. United States,

355 U.S. 339 (1958) .................................................................................................. 13

Leavitt v. Arave,

646 F.3d 605 (9th Cir. 2011). ................................................................................... 25

viii

Marshall v. Rodgers,

569 U.S. 58 (2013). ................................................................................................... 31

Mickens v. Taylor,

240 F.3d 348 (4th Cir. 2001) .................................................................................... 34

Mickens v. Taylor,

535 U.S. 162 (2002) ............................................................................................ 27, 29

Miles v. Ryan,

713 F.3d 477 (9th Cir. 2013) .................................................................................... 25

Missouri v. Jenkins,

495 U.S. 33 (1990). ................................................................................................... 38

Moormann v. Ryan,

628 F.3d 1102 (9th Cir. 2010). ................................................................................. 25

Morales v. Mitchell,

507 F.3d 916 (6th Cir. 2007). ................................................................................... 22

Parker v. Matthews,

567 U.S. 37 (2012) .................................................................................................... 34

Parr v. Quarterman,

472 F.3d 245 (5th Cir. 2006) .................................................................................... 21

Paul v. United States,

534 F.3d 832 (8th Cir. 2008) .................................................................................... 22

Pike v. Gross,

936 F.3d 372 (6th Cir. 2019); ................................................................................... 21

Pruitt v. Neal,

788 F.3d 248 (7th Cir. 2015) .................................................................................... 25

Riley v. South Carolina,

82 F.Supp.2d 474 (D. S.C. 2000) .............................................................................. 34

Shelton v. Carroll,

464 F.3d 423 (3d Cir. 2006)...................................................................................... 23

Simmons v. Luebbers,

299 F.3d 929 (8th Cir. 2002)..................................................................................... 22

Stankewitz v. Woodford,

365 F.3d 706 (9th Cir. 2004) .................................................................................... 25

Stankewitz v. Wong,

698 F.3d 1163 (9th Cir. 2012) .................................................................................. 26

Stevens v. McBride,

489 F.3d 883 (7th Cir. 2007) .................................................................................... 25

Strickland v. Washington,

466 U.S. 668 (1984) .................................................................................... ii, 9, 10, 33

Trevino v. Davis,

861 F.3d 545 (5th Cir. 2017) .................................................................................... 21

Williams v. Allen,

542 F.3d 1326 (11th Cir. 2008). ............................................................................... 23

Williams v. Beard,

637 F.3d 195 (3d Cir. 2011)...................................................................................... 23

Williams v. Taylor,

529 U.S. 362 (2000) .................................................................................................. 10

Wong v. Belmontes,

558 U.S. 15 (2009) .............................................................................................. 10, 11

Woods v. Donald,

575 U.S. 312 (2015) ............................................................................................ 30, 34

Woods v. McBride,

430 F.3d 813 (7th Cir. 2005) .................................................................................... 24

Wright v. Van Patten,

552 U.S. 120 (2008) .................................................................................................. 30

Statutes

Code of Alabama

13A–5–40(a)(1) and (a)(2) .............................................................................................. 4

13A–5–49(2) ................................................................................................................. 18

13A–5–49(4) ................................................................................................................. 18

13A–5–49(8) ................................................................................................................. 18

United States Code

28 U.S.C. § 2101(c)................................................................................................. 37, 38

28 U.S.C. § 2101(d). ..................................................................................................... 38

28 U.S.C. § 2254(d) ...................................................................................... ii, 27, 30, 34

Rules

Supreme Court Rule 13.2 ............................................................................................ 38

Supreme Court Rule 29.2 ............................................................................................ 38

STATEMENT OF THE CASE

Statement of the Facts

On the afternoon of July 12, 1994, Dallas observed 73-year-old Hazel Liveoak

loading groceries into her car at the Food World in Prattville, Alabama. Doc. 13–2

at C. 357–58.1 Dallas shoved his way into her car, forcing her face down on the

floorboard. Id. at 358. He demanded money from her, but when she told him that

she had only $10, he and Carolyn “Polly” Yaw, his codefendant, abducted her. Id.

With Mrs. Liveoak sitting in the front passenger seat and Yaw sitting in the back

seat, Dallas drove to Greenville, Alabama. Id. Mrs. Liveoak prayed for him during

this trip. Doc. 13–6 at R. 795. Once there, he stopped the car at the end of a dirt

road, ordered Mrs. Liveoak to give him her credit cards, and put her in the trunk of

her vehicle. Doc. 13–2 at C. 358.

Dallas and Yaw then drove Mrs. Liveoak’s car to the Am-South Bank located

near the K-Mart on East South Boulevard in Montgomery, Alabama. Id. Dallas

parked the car in a remote area of the K-Mart parking lot, and Yaw used Mrs.

Liveoak’s credit card eleven times at the ATM that was located at the bank. Id.

While Yaw was using Mrs. Liveoak’s credit card, Dallas exited the vehicle, sat on

the trunk of the car, and spoke with her. Id. She told Dallas that she had a heart

condition and prayed for him again. Id. at 358, 458. She also told him that he could

call her son and gave him the number, but he did not write it down. Doc. 13–6 at R.

798. He promised her that he would call the police to make sure that she was

released from her car. Id. at 798–99.

1 Document numbers refer to the district court proceedings below.

Dallas then called a cab, and he and Yaw went to a crack house. Doc. 13–7 at

R. 822. Dallas testified at his trial, and when asked how many pay phones he

passed on his way from the bank to the crack house, he replied, “Five hundred.” Id.

Although he passed a number of pay phones, he never called the police to obtain

help for Mrs. Liveoak despite promising her that he would send help. Doc. 13–2 at

C. 359; Doc. 13–7 at R. 822–23. Dallas “had hundreds of opportunities to get help

for Mrs. Liveoak if his intention was to release her; instead, he chose to leave Mrs.

Liveoak in the trunk of the car.” Doc. 13–2 at C. 359.

After purchasing crack with the money that they stole from Mrs. Liveoak,

Dallas and Yaw went to a motel where they smoked crack all night. Id. at 359. On

the following day, Dallas bragged to a friend that he had abducted an elderly lady,

placed her in the trunk of a car, and left her. Id. Dallas was very sarcastic during

this conversation and stated that he “hoped the old lady would die.” Id. Mrs.

Liveoak was never released from the trunk of her vehicle, and she died as a result of

homicide by heart attack. Id. When asked on cross why he left Mrs. Liveoak in the

trunk of her car knowing that she had a heart condition, Dallas stated that he did

not want to get caught. Doc. 13–7 at R. 824.

On the evening of July 13, Montgomery Police Department Corporal Steve

Saint and Montgomery Police Department Detective David Hill received a call to

respond to the K-Mart on the East South Boulevard. Doc. 13–6 at R. 625. They

arrived at approximately 8:10 p.m. Id. at 669–70. Millbrook Police Chief Danny

Pollard arrived thereafter, and he provided the keys to Mrs. Liveoak’s car to

Corporal Saint. Id. at 628–29. Corporal Saint opened the trunk, and they found

her body. Id. Evidence presented at trial showed that she lived for hours and had

numerous bruises and cuts on her hands that were consistent with attempting to

free herself and banging on the lid of the trunk to draw attention to her precarious

situation. Doc. 13–2 at C. 359.

Three days before he abducted Mrs. Liveoak, Dallas abducted Wesley

Portwood, an elderly man, from the K-Mart parking lot in Prattville. Id. at 360.

Dallas forced Mr. Portwood face down on the floorboard of his vehicle, drove him to

a remote area, and ordered him out of his car. Id. Dallas told Mr. Portwood to lie

down in some weeds, and when he objected, Dallas offered to put him inside the

trunk of his car. Id. Mr. Portwood declined, stating that he would “smother inside

there.” Id. Dallas allowed Mr. Portwood to lie down in the weeds while he robbed

him, and Mr. Portwood survived the abduction. Id.

The Proceedings Below

Algert Agricola, Dallas’s lead counsel, was appointed to represent him on

February 1, 1995. Doc. 13–1 at C. 134. On that same day, Agricola was appointed

by the Alabama Attorney General as a Special Deputy Attorney General for the

limited purpose of representing the Alabama Department of Mental Health and

Mental Retardation (“DMHMR”) in an entirely unrelated civil matter. Id. at 140.

Agricola moved the trial court for leave to withdraw as Dallas’s counsel and

filed a supporting affidavit in which he asserted that there is a potential conflict of

interest because the “Attorney General . . . will represent the State of Alabama on

appeal from a conviction in this matter.” Pet. App. D; Doc. 13–1 at C. 135–39. He

did not cite any caselaw in support of his motion to withdraw. Doc. 13–1 at C. 135–

37. In addition, he informed the court that he “had conferred with the Disciplinary

Commission of the Alabama State Bar Association concerning the possibility of a

conflict of interest posed in these circumstances” and that “counsel for the

Disciplinary Commission does not believe there exists a conflict under the Rules of

Professional Conduct in these circumstances.” Id. at 135–36.

The trial court held a hearing on his motion to withdraw. Doc. 126–1. At the

hearing, Agricola assured the trial court that he would represent Dallas to the best

of his ability if he remained on the case.

Pet. App. A6. After listening to the

arguments of counsel and considering the opinion of the Alabama State Bar

Association, the court determined that there was no actual conflict of interest that

would prevent Agricola from zealously representing Dallas and denied his motion.

Id. at A37. In its Order denying his motion, the court expressly stated that it had

held a hearing at which it heard argument from counsel and considered the

applicable law. Doc. 13–1 at C. 141 (“hearing having been held and argument and

applicable law considered”).

A Montgomery County, Alabama jury found Dallas guilty of the capital

offenses of murdering Hazel Liveoak during the course of a kidnapping and during

the course of a robbery, in violation of sections 13A–5–40(a)(1) and (a)(2) of the Code

of Alabama. Doc. 13–1 at C. 7–8, 24. The jury recommended by a vote of eleven to

one that Dallas should be sentenced to death. Id. at 5. The trial court followed the

jury’s recommendation and sentenced him to death. Doc. 13–2 at C. 369.

Dallas’s convictions and death sentence were affirmed on direct appeal.

Dallas v. State, 711 So. 2d 1101 (Ala. Crim. App. 1997), aff’d, 711 So. 2d 1114 (Ala.

1998), cert denied, 525 U.S. 860 (1998) (mem.).

Dallas next filed his Rule 32 petition for postconviction relief in the state

circuit court. Doc. 13–12 at Tab 13A. The circuit court held an evidentiary hearing

at which Jeffery Duffey, one of his trial counsel, and Susan James, his mitigation

investigator, testified. Id. at Tab 13. The parties deposed Algert Agricola, his lead

counsel.2 Doc. 13–13 at Tab 14. After the circuit court denied his petition, Dallas

moved the court to alter, amend, or vacate its judgment. Id. at Tab 14A, Tab 15.

The court denied his motion. Doc. 13–16 at Tab 66.

Because Dallas did not file a timely notice of appeal, the State moved the

Court of Criminal Appeals (“CCA”) to dismiss his appeal. Doc. 13–14 at Tab 18.

The CCA granted the State’s motion, dismissed Dallas’s appeal, and entered the

Certificate of Judgment. Doc. 13–16 at Tab 68.

2 Dallas asserts that his “defense team candidly confessed their abject failure to prepare for either

phase of trial, in primary part, because of lead counsel’s conflict.” Pet. 10. It is unsurprising that he

fails to cite any record support for that allegation because it is patently false. As the district court

correctly found, his counsel testified that they consulted with and obtained valuable information

from Dallas, investigated his crime, learned about his horrific home life and upbringing, developed

and pursued the strategy of presenting evidence at the guilt phase of the trial showing that he

lacked the intent to kill Hazel Liveoak, and presented mitigation evidence at both phases of the trial

regarding his dysfunctional family, traumatic childhood, long-term substance abuse, intoxication at

the time of the crime, domination by his codefendant, and remorse for Mrs. Liveoak’s death. Pet.

App. B183 n.156. The district court also correctly found that James testified at length about her

investigation into and development of mitigation evidence. Id. So, again, Dallas’s counsel and

mitigation investigator never testified that they failed to prepare for his trial.

Dallas returned to the circuit court and moved that court to enter an order

holding that his post-judgment motion tolled the time for filing his notice of appeal.

Id. at Tab 70. The court granted his motion, and he filed a second notice of appeal.

Id. at Tabs 71, 73. But the CCA struck his appeal, holding that the court “has

already dismissed the appellant’s attempted appeal of the judgment herein for lack

of a timely notice of appeal.” Id. at Tab 75. The Alabama Supreme Court denied

certiorari. Doc. 13–14 at Tab 27.

Dallas next filed a petition for writ of habeas corpus in the Middle District of

Alabama. Doc. 1. Respondents answered Dallas’s petition. Doc. 49. In 2007,

Dallas submitted affidavits that were executed by his mother, siblings, and others

to the district court in an effort to support his claim that his counsel were ineffective

at the penalty phase of his trial. Doc. 87, Ex. 4–16. The district court denied and

dismissed his habeas petition. Pet. App. B1–B263. The court did not grant him a

certificate of appealability. Id. at B263.

Dallas moved the Eleventh Circuit to grant him a certificate of appealability.

The court granted his motion as to two of his claims and instructed the parties to

address whether the second claim—his penalty-phase ineffectiveness claim—is

procedurally defaulted.

After briefing and oral argument, the court of appeals

affirmed the district court’s judgment. Pet. App. A1–A56 (Dallas v. Warden, 964

F.3d 1285 (11th Cir. 2020)).

REASONS FOR DENYING THE PETITION

This Court should not grant certiorari on either of the questions presented by

Dallas. The Eleventh Circuit’s denial of his penalty-phase ineffectiveness claim

does not conflict with Strickland and its progeny or create a circuit split. Contrary

to Dallas’s assertions in his petition, the Eleventh Circuit did not exclude any of his

mitigation evidence when it reweighed that evidence against the aggravating

circumstances. Instead, the court of appeals, applying de novo review, reweighed

the totality of his mitigation evidence, including the new evidence that it found to

be essentially cumulative of evidence presented at his trial, against the aggravating

circumstances and determined that he is not entitled to relief because he failed to

establish that he was prejudiced by his counsel’s performance. That decision is

correct and should not be disturbed.

Dallas’s second claim likewise is unworthy of certiorari review. The Eleventh

Circuit applied AEDPA deference in determining that the CCA’s denial of his claim

that his right to conflict-free counsel was violated where his lead attorney, Algert

Agricola, simultaneously represented the DMHMR at the time of his trial was

reasonable.

In holding that the CCA’s decision was neither contrary to nor an

unreasonable application of clearly established federal law or based on an

unreasonable determination of the facts, the Eleventh Circuit applied precedent

from this Court that existed at the time of the CCA’s decision. Because the court of

appeals properly applied then-existing precedent to the facts of his case in correctly

resolving his claim, this case is a poor vehicle for deciding whether federal habeas

courts can consider precedent from this Court that post-dates a state-court decision

in determining whether that decision was reasonable.

This Court accordingly

should deny Dallas’s petition.

The Eleventh Circuit correctly followed Strickland and this Court’s

other precedents and did not create a circuit split in holding that

Dallas failed to establish that he was prejudiced by his counsel’s

performance at the penalty phase of his trial.

Dallas seeks certiorari review of the Eleventh Circuit’s denial of his claim

that his counsel were ineffective at the penalty phase of his trial for failing to

adequately investigate and present mitigation evidence.

Pet. 16–31.

But he

misreads the decision below. Although the Eleventh Circuit found that much of his

new mitigation evidence is essentially cumulative to the evidence that his counsel

presented at his trial, the court did not “ignore” or “disregard” that evidence in

adjudicating his claim. Pet. 23–31. And the court certainly did not “exclude” any of

his new mitigation evidence when it reweighed the totality of the mitigation

evidence against the aggravating circumstances. Id. at 28.

Instead, the Eleventh Circuit, applying de novo review, properly reweighed

the totality of the mitigation evidence, the old and the new, against the aggravating

circumstances and correctly held that, even if the new mitigation evidence had been

presented at his trial, there is no reasonable probability that the outcome of his

sentencing would have been different.

Based on that determination, the court

correctly concluded that Dallas is not entitled to relief because he failed to establish

that he was prejudiced by his counsel’s performance.

Dallas’s argument that the Eleventh Circuit’s decision conflicts with this

Court’s precedents and creates or contributes to a circuit split is based on a

misunderstanding of the decision below. For that reason and because his claim is

without merit, this Court should deny certiorari.

The Eleventh Circuit’s decision does not

Strickland or this Court’s other precedents.

conflict

with

Dallas argues that the Eleventh Circuit’s decision conflicts with Strickland v.

Washington, 466 U.S. 668 (1984), and this Court’s other precedents because the

court failed to consider all of his new mitigation evidence in determining whether he

established prejudice. Dallas is mistaken. The Eleventh Circuit faithfully applied

Strickland and its progeny in resolving his claim.

To prevail on a claim of ineffective assistance of counsel, a defendant must

establish that counsel’s performance was deficient because it fell below an objective

standard of reasonableness and that counsel’s deficient performance prejudiced the

defendant by depriving him of “a trial whose result is reliable.” Strickland, 466

U.S. at 687–88. “The benchmark for judging any claim of ineffectiveness must be

whether counsel’s conduct so undermined the proper functioning of the adversarial

process that the trial cannot be relied on as having produced a just result.” Id. at

686; see also Kimmelman v. Morrison, 477 U.S. 365, 374 (1986) (“The essence of an

ineffective-assistance claim is that counsel’s unprofessional errors so upset the

adversarial balance between defense and prosecution that the trial was rendered

unfair and the verdict rendered suspect.”).

Under Strickland’s prejudice prong, “[i]t is not enough for the defendant to

show that the errors had some conceivable effect on the outcome of the proceeding.”

466 U.S. at 693.

Instead, “[t]he question is whether there is a reasonable

probability that, absent the errors, the sentencer . . . would have concluded that the

balance of aggravating and mitigating circumstances did not warrant death.” Id. at

695. “A reasonable probability is a probability sufficient to undermine confidence in

the outcome.”

Id. at 694.

“That requires a ‘substantial,’ not just ‘conceivable,’

likelihood of a different result.”

Cullen v. Pinholster, 563 U.S. 170, 189 (2011)

(quoting Harrington v. Richter, 562 U.S. 86, 112 (2011)).

To determine whether a defendant has established prejudice, courts must

“evaluate the totality of the available mitigation evidence—both that adduced at

trial, and the evidence adduced in the habeas proceeding in reweighing it against

the evidence in aggravation.” Williams v. Taylor, 529 U.S. 362, 397–98 (2000). In

reweighing the mitigating and aggravating factors, courts must consider all of the

evidence, including harmful evidence that the State could have elicited to rebut the

new mitigation evidence. Wong v. Belmontes, 558 U.S. 15, 26 (2009).

So, to

establish prejudice, a defendant “must show a reasonable probability that the jury

would have rejected a capital sentence after it weighed the entire body of mitigating

evidence . . . against the entire body of aggravating evidence.” Id. at 20.

This Court repeatedly has held that new mitigation evidence that is

essentially cumulative of evidence that was presented at trial is not sufficient to

meet Strickland’s high bar for establishing prejudice.

In Pinholster, the Court

found that the petitioner’s counsel presented evidence at trial about his “troubled

childhood and adolescence,” including evidence that he was run over by a car, was

sent to a school for emotionally-handicapped children, spent time in juvenile halls

and boys’ homes, suffered from epilepsy, and that his eldest brother died. 563 U.S.

at 199–200. Nevertheless, he argued that his counsel were ineffective for failing to

present evidence showing that his brother committed suicide, that he was neglected

by and did not receive much love from his mother and step-father because they

worked so much and focused on themselves, and that neither parent was concerned

about his education. Id. at 201–02. In holding that he failed to establish prejudice,

the Court reasoned that the new mitigation evidence “largely duplicated” and

“basically substantiate[d]” the trial evidence and that it was “not so significant . . .

to show a ‘substantial’ likelihood of a different sentence.” Id. at 200–02.

In Wong, the Court found that the petitioner’s trial counsel presented

“substantial” mitigation evidence. 558 U.S. at 20. His counsel presented evidence

regarding his tragic childhood, his successful tenure as a firefighter during which he

rose from the lowest person in his unit to second-in-command, his religious

conversion and good works in prison, and the petitioner’s own testimony taking

responsibility for his crimes.

Id. at 21.

In holding that he failed to establish

prejudice, this Court reasoned that “[s]ome of the [new mitigation] evidence was

merely cumulative of the humanizing evidence” presented at trial, that the jury was

“well aware” of his “background and humanizing features,” and that “[a]dditional

evidence on these points would have offered an insignificant benefit, if any at all.”

Id. at 22–23.

Here, Dallas argues that the Eleventh Circuit “dismissed” the new mitigation

evidence that it found to be cumulative of the evidence that was presented at his

trial and reweighed “only” the new allegation that he was sexually abused and his

new ADHD diagnosis against the aggravating evidence. Pet. 28. That is not so.

The Eleventh Circuit properly reweighed the totality of the mitigation

evidence, the old and the new, against the aggravating circumstances and correctly

held that there is no reasonable probability that the outcome of his sentencing

would have been different if the jury and trial court had heard the new evidence.

Pet. App. A51–A52 (“In short, we readily conclude that there is no reasonable

probability that Benedict’s testimony, even when added together with the additional

(and largely cumulative) postconviction testimony of Dallas’s family members,

would have changed Dallas’s sentence.”); id. at A56 (“[T]here is no reasonable

probability that, had the jury known the limited additional details presented in

postconviction, they would have spared his life.”). Thus, the court correctly applied

Strickland and its progeny in adjudicating his claim.

Moreover, the Eleventh Circuit correctly found that Dallas’s counsel

presented a wealth of mitigation evidence at the guilt phase of his trial from Dr.

Guy Renfro, Susan James, and Dallas himself and from Cindy Knight (“Cindy”),

Paul Dallas (“Paul”), Pam Cripple, and Rhonda Chavers at the penalty phase of his

trial. Pet. App. A7–A18. To begin, the jury and trial court were aware that Dallas

was the youngest of four siblings who were raised in an impoverished, chaotic, and

violent household with an alcoholic, abusive, and absentee father and an alcoholic,

mentally unstable, and abusive mother.3 Id. They were aware that his parents

divorced when he was young and that he, his mother, and two of his siblings, Cindy

and Paul, then resided with an alcoholic man in an unstable environment. Id.

The jury and trial court knew that Dallas and his siblings had little to no

adult supervision which caused them to go hungry and regularly miss school. Id.

Cindy testified that their mother and step-father paid very little attention to the

children, explaining, “They did what they wanted. Nobody cared.” Doc. 13–7 at R.

959. She further testified that she and her siblings were left to raise themselves

from a young age and that she was molested as a result of their neglect and

indifference. Id. The jury and court also learned from Cindy that police officers

came to their house on several occasions to take their mother “to an insane asylum.”

Id. at 960. Dallas similarly testified that nobody in his family attended church, that

no one taught him right from wrong, and that he “pretty much did what [he] wanted

to do” because he did not have any positive role models. Doc. 13–6 at R. 780, 783.

Although there is no dispute that his mother was physically abusive to her children at times,

Dallas alleges that she beat him and his siblings “with her hands, bats, and belt buckles,” “kicked

the children as they lay prone on the floor,” “pick[ed] [him] up by one arm and lash[ed] him

repeatedly with a belt,” and used “a cattle prod-type device” to “shock [him] and his siblings.” Pet.

12, 27. He does not cite any record support for those factual allegations. That is because there is no

evidence in the record to support them. For example, the affidavits that he submitted to the district

court do not contain any evidence supporting those allegations. Doc. 87, Ex. 4–16. At most, his

mother’s affidavit reveals that she “began to spank her children with a paddle” at some point after

her drinking escalated. Doc. 87, Ex. 14 at ¶ 22. That, of course, is a far cry from beating, kicking,

and shocking her children with a cattle prod. Because those factual allegations are not supported by

any evidence in the record, this Court should not consider them. Lawn v. United States, 355 U.S.

339, 354 (1958) (“We must look only to the certified record in deciding questions presented.”); Holmes

v. Trout, 32 U.S. 171, 210 (1833) (“No evidence can be looked into in this court, which exercises an

appellate jurisdiction, that was not before the circuit court; and the evidence certified with the record

must be considered here, as the only evidence before the court below.”).

Cindy also testified that the family never had meals together and added, “We

was lucky we got food sometimes. Sometimes it would be a week before we would

get to eat.” Doc. 13–7 at R. 960. The children attended school only if their mother

woke them up in time to ride the bus and, even then, only if they had clean clothes.

Id. at 961. Dallas dropped out of school in the sixth grade, Paul dropped out in the

seventh grade, and Cindy is illiterate. Id. at 956, 971.

Just like Dallas, Paul faced troubles with the law as an adult. At the time of

his testimony, Paul was on probation for possession of marijuana, and he admitted

that he has several DUIs. Id. at 968–69. By contrast, Jimmy Dallas, the eldest of

the Dallas siblings, has seen success in his life. Id. at 968. According to Paul, he

attended college and is a juvenile counselor. Id. Unlike his younger siblings, he

was allowed to choose where he lived after their parents divorced, and he decided to

live with his paternal grandparents. Id. at 956–57, 967.

The jury and trial court also knew that Dallas started drinking alcohol at the

tender age of seven or eight, began using marijuana at the age of twelve or thirteen,

and began using cocaine and crystal methamphetamine intravenously when he was

thirteen or fourteen. Pet. App. A8. In fact, when asked to identify all of the drugs

that he used as a child and adolescent, Dallas replied, “Well, it would be probably

easier to answer which ones I didn’t use.” Doc. 13–6 at R. 785.

In addition, the jury and trial court were aware that Dallas married Pam

Cripple and had two daughters with her. Doc. 13–7 at R. 961–62. During that

period of his life, Dallas worked as an electrician, maintained steady employment,

and treated Cripple and their daughters well. Id. at 969, 972, 974. Cindy testified

that he never got in trouble while he was married to Cripple, that she was a good

influence on him, and that “he was a kind, considerate person” while they were

together. Id. at 962. Echoing her testimony, Paul explained that Dallas, when he

was married to Cripple, “would do anything for people. I have seen him go help

people, work on their houses when they couldn’t get nobody to do it and didn’t have

the money. He has fixed people’s cars. He has went to trailer parks and cut grass

for the old people.” Id. at 970.

But Dallas’s behavior drastically changed after he met and began using crack

cocaine with Carolyn “Polly” Yaw, a “vicious psychopath.”

Pet. App. B253.

Cindy explained, “It was like before he met her, he was a kind, considerate person.

He would do anything for anybody. But when he got with her, he got with the

drugs, and it was like a different person. You didn’t know him.” Doc. 13–7 at R.

962. Paul testified that Yaw was a bad influence on Dallas and that his behavior

changed for the worse after he met her. Id. at 969–70.

The jury and trial court learned from Dr. Guy Renfro, Susan James, and

Dallas about the devastating effects of crack addiction. They were aware that Yaw

introduced Dallas to crack and that he quickly became addicted to that drug. Doc.

13–6 at R. 786. During the two weeks before they abducted, robbed, and killed

Hazel Liveoak, he and Yaw were binging on crack. Id. at 757–58. With regard to

Dallas’s state of mind at the time of the offense, Dr. Renfro testified, “My opinion is

that he was binging on [crack], that he did want more and more of the drug, and

that he was in a process of disregarding a lot of other circumstances to do whatever

he could to obtain money for the drug.” Id. at 757. He further testified that Dallas

has below average intelligence and expressed remorse for Mrs. Liveoak’s death. Id.

at 759. So, the jury and court knew about his crack addiction and cognitive deficits

and how those factors, among many others, contributed to his offense.

In short, the Eleventh Circuit correctly found that the jury and trial court

were well aware that Dallas was raised in a dysfunctional environment that was

marked by violence, physical abuse, extreme neglect, substance abuse, poverty,

hunger, their mother’s mental illness, and a lack of positive role models. Pet. App.

A7–A18, A45–A49.

Indeed, Cindy powerfully and succinctly described their

upbringing and home life in three words—“it was hell.” Doc. 13–7 at R. 958.

The Eleventh Circuit correctly found that most of the mitigation evidence

that is contained in the affidavits that he submitted to the district court is

cumulative to the evidence that the jury and trial court heard and, thus, serves only

to amplify, expand on, and provide more details about the mitigation issues that

were presented by his trial counsel. Pet. App. A44–A49. And the court properly

followed this Court’s precedent in holding that he was not prejudiced by his

counsel’s failure to present that cumulative evidence because it just “substantiates,

supports, or explains more general testimony provided at trial.” Id. at A45 (quoting

Pinholster, 563 U.S. at 200–01) (cleaned up); id. at A49.

The Eleventh Circuit also examined the two new pieces of mitigation

evidence that are found in those affidavits—Dr. Ken Benedict’s diagnosis that

Dallas has ADHD and learning disorders and Paul’s allegation that he and Dallas

were sexually abused.

Pet. App. A49–A52.

The court correctly found that Dr.

Benedict’s testimony that children who have ADHD and learning disabilities are

more likely to develop problems with substance abuse, exhibit “passive-dependent”

behavior, and drop out of school, while “marginally helpful,” would have added little

to Dallas’s mitigation case because the jury and trial court were well aware that he

abused substances from a young age, had difficulties in school and dropped out in

the sixth grade, was known to be passive and unassertive, and was dominated by

Yaw. Id. at A50–A51.

The court further correctly found that Dr. Benedict’s testimony “would have

come at the cost of undermining part of Dr. Renfro’s helpful trial testimony.” Id. at

A51.

Dr. Renfro testified that Dallas has below average intelligence, but Dr.

Benedict stated in his affidavit that he “demonstrates average intellectual ability.”

Id. If Dallas’s counsel had called Dr. Benedict, the State no doubt would have

elicited his opinion that Dallas has average intelligence and, thereby, undermined

Dr. Renfro’s beneficial testimony about his low intelligence. Id.

Turning to Paul’s allegation that he and Dallas were sexually abused, the

Eleventh Circuit correctly noted that Paul was in the courtroom during Cindy’s

testimony and heard her state that she was molested but made no mention of

sexual abuse when he testified. Id. at A52. The court also found that there is no

evidence in the record showing that Dallas told his counsel that he was sexually

abused and correctly held that his counsel cannot be found ineffective for failing to

“discover and develop evidence of childhood abuse” that he did not mention to them.

Id. (quoting Williams v. Head, 185 F.3d 1223, 1237 (11th Cir. 1999)).

Additionally, in reweighing the totality of the mitigation evidence against the

aggravating circumstances, the Eleventh Circuit correctly held that there is no

reasonable probability that the outcome of Dallas’s sentencing would have been

different even if the jury and court had heard about the sexual-abuse allegations.

Id. at A53. As the court explained, his case is highly aggravated. Id.

The trial court found the existence of the following four, not three,

aggravating circumstances: (1) the capital offense was committed while the

defendant was engaged in the course of a robbery, pursuant to section 13A–5–49(4)

of the Code of Alabama, (2) the capital offense was committed while the defendant

was engaged in the course of a kidnapping, pursuant to section 13A–5–49(4) of the

Code of Alabama, (3) Dallas was previously convicted of a felony involving the use

or threat of violence to the person, pursuant to section 13A–5–49(2) of the Code of

Alabama, and (4) the capital offense was especially heinous, atrocious, or cruel

compared to other capital offenses, pursuant to 13A–5–49(8) of the Code of

Alabama.

Doc. 13–2 at C. 361–64.

With regard to the fourth aggravating

circumstance, the trial court made the following findings of fact:

This Court cannot imagine a more depraved and cruel murder of a

person than what Mrs. Liveoak suffered at the hands of Dallas. He left

her in the trunk of her automobile on a summer afternoon so that she

would die simply because he did not want to get caught. He literally

entombed her in the trunk of her car. The suffering of Mrs. Liveoak is

unimaginable. She lay helpless in the hot, stuffy trunk and fought to

escape, until the conditions that she was left in caused her death. Yet,

even as torturous as her death, the cruelest act committed by Dallas

was that he gave Mrs. Liveoak false hope; he told her, as she was

praying for him, that he would send help. The help never arrived

because the evidence clearly showed that he had no intention of

sending her help. Mrs. Liveoak was tortured at the hands of Dallas.

Id. at 363–64.

The Eleventh Circuit, in reweighing the totality of the mitigation evidence

against the aggravating circumstances, similarly emphasized the heinous nature of

Dallas’s crime and the brutality of Mrs. Liveoak’s death:

[T]he jury also necessarily found when it convicted him of capital

murder that Donald Dallas placed an elderly woman in the trunk of a

car and intended for her to die there. That is, that he intended for her

to suffer a slow and agonizing death in the sweltering trunk of a car.

That he intended for her to bear the mental anguish of being

essentially buried alive. Of waiting in vain for hope that would never

arrive despite his promises to her. That he intended for her to endure,

in the words of Edgar Allen Poe, “a degree of appalling and intolerable

horror from which the most daring imagination must recoil”: the

“unendurable oppression of the lungs . . . —the clinging to the death

garments—the rigid embrace of the narrow house—the blackness of

the absolute Night—the silence like a sea that overwhelms . . . —these

things, with the thoughts of the air and grass above, with memory of

dear friends who would fly to save us if but informed of our fate.”

Pet. App. A53 (quoting Edgar Allen Poe, The Premature Burial (1850)).

Applying de novo review, the Eleventh Circuit properly reweighed the totality

of the mitigation evidence against the aggravating circumstances and correctly held

that there is no reasonable probability that the outcome of Dallas’s sentencing

would have been different if the jury and trial court had heard his new mitigation

evidence. Id. at A56. That determination is all the more correct in light of the

highly aggravated nature of Dallas’s crime and the relative weakness of his new

evidence. Id. As the Eleventh Circuit aptly stated, it is “wholly unlikely that the

additional evidence would have changed the jury’s” death recommendation or the

trial court’s decision to sentence him to death. Id.

Moreover, the Eleventh Circuit’s opinion is a straightforward application of

Strickland and this Court’s other precedents to the facts of Dallas’s case. Because

the court properly applied Strickland and its progeny in adjudicating his claim and

correctly held that he failed to establish that he was prejudiced by his counsel’s

performance at the penalty phase of his trial, this Court should deny certiorari.

The Eleventh Circuit’s decision neither contributed to nor

created a circuit split.

Dallas argues that the Eleventh Circuit’s decision contributed to and created

a circuit split regarding how federal habeas courts decide whether a petitioner was

prejudiced by trial counsel’s failure to present mitigation evidence that is raised for

the first time in a postconviction proceeding. Pet. 17–23. In his telling, the Fifth,

Sixth, Eighth, and Eleventh Circuits have held that a petitioner cannot establish

prejudice where the new mitigation evidence relates to evidence that was presented

at trial, even where the new evidence is more detailed or persuasive, while the

Third, Seventh, and Ninth Circuits have held that a petitioner can establish

prejudice where the new evidence relates to the trial evidence. Id. at 17–18.

But there is no meaningful divergence in how those courts approach that

question. Each of those courts has required a fact-specific inquiry into a petitioner’s

claim that he was prejudiced by his counsel’s failure to present adequate mitigation

evidence. That inquiry involves reweighing the totality of the mitigation evidence

against the aggravating factors. And each of those courts has recognized that a

petitioner cannot establish prejudice where the new mitigation evidence both is

cumulative to that presented at trial and insufficient when combined with the old to

create a reasonable probability of a different sentencing outcome. Because the split

that Dallas identifies is illusory, this Court should deny certiorari.

Fifth Circuit.

The Fifth Circuit has held that a petitioner cannot

establish prejudice where the new mitigation evidence, although more detailed, is

cumulative to the evidence presented at trial and, when combined with the old, does

not create a reasonable probability of a different outcome. Busby v. Davis, 925 F.3d

699, 726 (5th Cir. 2019); see also Trevino v. Davis, 861 F.3d 545, 550–51 (5th Cir.

2017); Parr v. Quarterman, 472 F.3d 245, 257–58 (5th Cir. 2006). But the Fifth

Circuit granted a certificate of appealability based on its finding that reasonable

jurists could debate whether the state court unreasonably applied federal law in

denying the petitioner’s ineffectiveness claim where the new evidence depicting his

disadvantaged childhood was of greater quality and quantity than the evidence

presented at trial. Escamilla v. Stephens, 749 F.3d 380, 393 (5th Cir. 2014).

Sixth Circuit. The Sixth Circuit has held that, to prove prejudice, a

petitioner must show that the new mitigation evidence “differ[s] in a substantial

way—in strength and subject matter—from the evidence actually presented at

sentencing.” Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir. 2005); see also Pike v.

Gross, 936 F.3d 372, 382 (6th Cir. 2019); Broom v. Mitchell, 441 F.3d 392, 410–11

(6th Cir. 2006); Clark v. Mitchell, 425 F.3d 270, 287 (6th Cir. 2005). The Sixth

Circuit also has held that a petitioner established that he was prejudiced by his

counsel’s failure to adequately investigate mitigation evidence where “the volume

and compelling nature” of the new evidence regarding his dysfunctional family and

troubled life was much greater than the evidence that was presented regarding that

subject at trial. Morales v. Mitchell, 507 F.3d 916, 933, 935–36 (6th Cir. 2007).

Eighth Circuit. The Eight Circuit has held that a petitioner cannot

establish prejudice where the new mitigation evidence, albeit more extensive than

that presented at trial, was similar to the trial evidence, where some of that

evidence would have harmed the petitioner, and where the new evidence, when

combined with the old, would not have “detract[ed] from the government’s strong

case in aggravation.” Paul v. United States, 534 F.3d 832, 843 (8th Cir. 2008); see

also Anderson v. Kelley, 938 F.3d 949, 958 (8th Cir. 2019). The Eighth Circuit also

has held that a petitioner established that he was prejudiced by his counsel’s

deficient performance where the new mitigation evidence painted a much more

“vivid” picture of his abusive, traumatic, and poverty-stricken childhood. Simmons

v. Luebbers, 299 F.3d 929, 939 (8th Cir. 2002).

Eleventh Circuit. The Eleventh Circuit has held that a petitioner

cannot establish prejudice where the new mitigation evidence merely presents “a

more detailed version of the same story told at trial or provides more or better

examples or amplifies the themes presented to the jury.” Holsey v. Warden, Ga.

Diagnostic Prison, 694 F.3d 1230, 1260–61 (11th Cir. 2012). The Eleventh Circuit

also has held that a petitioner established prejudice where his new mitigation

evidence “far exceeded” what was presented at trial regarding the horrific abuse

and neglect that he suffered as a child. Johnson v. Sec’y, Dep’t of Corr., 643 F.3d

907, 936–37 (11th Cir. 2011); see id. at 936 (“The picture [counsel] painted for the

jury was of Johnson having cold and uncaring parents, something in the nature of

the ‘American Gothic’ couple. With a reasonable investigation, though, he could

have painted for the jury the picture of a young man who resembled the tormented

soul in ‘The Scream.’”).4

Third Circuit. The Third Circuit has held that a petitioner failed to

establish prejudice even where his new mitigation evidence was greater in both

detail and credibility than the evidence presented at trial because there was no

reasonable probability that the new evidence, when combined with the old, would

have resulted in a different outcome in light of the State’s highly aggravated case.

Shelton v. Carroll, 464 F.3d 423, 440 (3d Cir. 2006); see also Williams v. Beard, 637

F.3d 195, 234–36 (3d Cir. 2011).

The decisions cited in Dallas’s petition are not to the contrary. In AbdulSalaam v. Sec’y, Penn. Dep’t of Corr., the Third Circuit held that the petitioner

4 According to Dallas, the Eleventh Circuit applies a “test for assessing prejudice” providing that “if

new mitigation evidence . . . concerns the same theme as old evidence . . . the new evidence is

necessary cumulative and cannot establish prejudice” and that this “test” applies “regardless of

whether the omitted evidence is more detailed, more extensive, or more persuasive than the penalty

phase evidence that the jury actually heard.” Pet. 17–18. Dallas’s failure to cite any authority for

that proposition is telling; the Eleventh Circuit applies no such test in determining whether a

petitioner has established that his new mitigation evidence, when combined with the old and

weighed against the aggravating circumstances, creates a reasonable probability of a different

sentencing outcome. To the contrary, the Eleventh Circuit repeatedly has held that a petitioner

established prejudice where the new mitigation evidence included more details about the same

themes that were the focus of trial counsel’s mitigation presentation. See, e.g., Cooper v. Sec’y, Dep’t

of Corr., 646 F.3d 1328, 1337, 1354 (11th Cir. 2011) (holding that petitioner established prejudice

where counsel presented evidence at trial showing that his father physically abused him and his

siblings by beating them with a belt because the new mitigation evidence regarding the abuse far

exceeded that presented to the jury); Williams v. Allen, 542 F.3d 1326, 1329, 1342 (11th Cir. 2008).

established prejudice where new mitigation evidence revealing that his childhood

was “dominated by severe and pervasive violence at the hands of his father and

poverty that often rose to the level of severe deprivation” was “of a totally different

quality” than the evidence presented at his trial depicting his abuse “as an

uncommon, instead of dominant, feature of [his] childhood.” 895 F.3d 254, 270–72

(3d Cir. 2018). So, the court found that the petitioner was entitled to habeas relief

because his counsel presented a woefully incomplete and materially misleading

account of his tragic childhood to the jury. Id. Similarly, in Bond v. Beard, the

court granted habeas relief where the petitioner’s counsel presented a materially

misleading account of his life that gave the jury the false “impression that [he] came

from a supportive (if poor) family but went on a crime spree after the type of

disappointments many people face in life.” 539 F.3d 256, 291 (3d Cir. 2008).

Seventh Circuit. The Seventh Circuit has held that a petitioner failed

to establish prejudice where his new mitigation evidence revealed additional details

about his upbringing but was essentially cumulative to the trial evidence. Woods v.

McBride, 430 F.3d 813, 825–26 (7th Cir. 2005). Similarly, the court, in Eddmonds

v. Peters, held that the petitioner could not establish prejudice where his new

mitigation evidence included more details about his horrible past because his crime

was “abominable—almost unspeakable.” 93 F.3d 1307, 1321–22 (7th Cir. 1996).

The decisions cited by Dallas are not to the contrary. In Pruitt v. Neal, the

Seventh Circuit held that the petitioner established prejudice where his new

mitigation evidence would have supported two statutory mitigating circumstances.

788 F.3d 248, 274 (7th Cir. 2015); see also Stevens v. McBride, 489 F.3d 883, 888,

897–98 (7th Cir. 2007).

Similarly, in Griffin v. Pierce, the court held that the

petitioner established prejudice where the new mitigation evidence depicting his

tragic childhood, mental illness, suicide attempts, and good deeds was inherently

mitigating and where the evidence presented at trial was misleading and

incomplete. 622 F.3d 831, 845 (7th Cir. 2010).

Ninth Circuit. The Ninth Circuit has held that a petitioner could not

establish that he was prejudiced by his counsel’s failure to present additional

evidence regarding his brain abnormality in light of the “exceptional depravity” of

his crime which involved “the surgical mutilation of the victim’s body.” Leavitt v.

Arave, 646 F.3d 605, 615–16 (9th Cir. 2011).

The court also has held that a

petitioner did not establish that he was prejudiced by his counsel’s failure to

present more evidence about his drug addiction, which the court noted “could be

characterized as merely another element of social history,” because the case

“involved significant aggravating factors.” Miles v. Ryan, 713 F.3d 477, 489 (9th

Cir. 2013); see also Moormann v. Ryan, 628 F.3d 1102, 1114 (9th Cir. 2010).

The decisions cited by Dallas are not to the contrary.

In Stankewitz v.

Woodford, the Ninth Circuit remanded the petitioner’s case to the district court

with instructions to hold a hearing on his claim that he was prejudiced by his

counsel’s failure to present additional mitigation evidence. 365 F.3d 706, 725 (9th

Cir. 2004). When that case returned to the Ninth Circuit, the court held that the

petitioner established prejudice because the new mitigation evidence was so

substantial that, when combined with the old, it created a reasonable probability of

a different outcome. Stankewitz v. Wong, 698 F.3d 1163, 1167, 1174 (9th Cir. 2012).

Thus, rather than establishing a circuit split, Dallas has done the opposite.

In light of the foregoing decisions, the consensus among the circuit courts is that a

petitioner who claims that he was prejudiced by his counsel’s failure to present

adequate mitigation evidence must present new mitigation evidence that is of much

greater quality and quantity than the evidence that was presented at trial or new

evidence revealing that counsel presented a materially misleading and inaccurate

life story to the jury and trial court. In addition, the petitioner must show that the

new evidence is so substantial that, when combined with the old, it creates a

reasonable probability of a different sentencing outcome. And contrary to Dallas’s

assertions in his petition, the circuit courts are unanimous in holding that a

petitioner can establish prejudice where his new mitigation evidence relates to

mitigation themes that were presented by trial counsel. Because Dallas has failed

to establish a split with regard to this issue, the writ should be denied.

II.

This case is a poor vehicle for deciding whether federal habeas

courts can consider precedent from this Court post-dating a statecourt decision in determining whether the decision was reasonable

because the Eleventh Circuit based its correct determination that

the CCA’s denial of Dallas’s conflict-of-interest claim was reasonable

on this Court’s precedent as of the time of the CCA’s decision.

Dallas’s second question presented is based on a clear misrepresentation of

the Eleventh Circuit’s decision. Pet. i, 31–39. The Eleventh Circuit did not base its

determination that the CCA reasonably denied his claim that his right to conflictfree counsel was violated where his lead attorney, Algert Agricola, simultaneously

represented the DMHMR at the time of his trial on precedent from this Court that

post-dates the CCA’s decision. Instead, the Eleventh Circuit correctly held, under

28 U.S.C. § 2254(d), that the CCA’s decision was neither contrary to nor an

unreasonable application of then-existing clearly established federal law and was

not based on an unreasonable determination of the facts. Harrington v. Richter,

562 U.S. 86, 100 (2011). In any event, if the CCA’s opinion does not conflict with

the Sixth Amendment as more recently interpreted by this Court, then there were

no “extreme malfunctions in the state criminal justice systems,” id. at 102

(quotations omitted), and thus habeas relief was not warranted. For those reasons,

certiorari should be denied.

This case is a poor vehicle for deciding the question presented

because the Eleventh Circuit applied this Court’s precedents

as of the time of the CCA’s decision in holding that the CCA’s

denial of Dallas’s claim was reasonable.

According to Dallas, the Eleventh Circuit “relied solely” on Mickens v. Taylor,

535 U.S. 162 (2002), in determining that the CCA’s denial of his conflict-of-interest

claim was reasonable. Pet. 36. That is decidedly untrue. The Eleventh Circuit

based that determination on its interpretation of Holloway v. Arkansas, 435 U.S.

475 (1978), and Cuyler v. Sullivan, 446 U.S. 335 (1980), and its application of

Sullivan to the facts of Dallas’s case. Pet. App. A33–A40.

In determining that the CCA’s denial of Dallas’s claim was neither contrary

to nor an unreasonable application of then-existing clearly established federal law,

the Eleventh Circuit correctly reasoned:

Dallas says that because Agricola represented Alabama’s

Department of Mental Health and Mental Retardation (the “DMHMR”)

in an unrelated civil matter, while at the same time defending him

against Alabama’s prosecution, he was deprived of his Sixth

Amendment right to the effective assistance of counsel. He argues that

the Alabama Court of Criminal Appeals erroneously applied [Cuyler v.]

Sullivan[, 446 U.S. 335 (1980),] instead of Holloway v. Arkansas, 435

U.S. 475 (1978), in adjudicating the alleged conflict. In Holloway, the

Supreme Court held that “whenever a trial court improperly requires

joint representation over timely objection reversal is automatic.” 435

U.S. at 488. The problem with this argument, however, is that

Holloway’s automatic reversal rule is limited only to those

circumstances where a trial court improperly requires the joint

representation of codefendants over[] timely objection. In the absence

of the joint representation of codefendants, the appropriate legal

standard is found in Sullivan, which requires a showing that an actual

conflict of interest adversely affected defense counsel’s performance.

446 U.S. at 349–50. The Court of Criminal Appeals’ reliance on

Sullivan was neither contrary to nor an unreasonable application of

clearly established Supreme Court law. Moreover, nothing in the state

court’s findings amounted to an unreasonable determination of the

facts.

Pet. App. A33–A34.

In adjudicating Dallas’s conflict-of-interest claim, the Eleventh Circuit closely

examined Holloway and Sullivan and determined that, even though his counsel

objected to the alleged conflict before trial, the Sullivan standard, rather than

Holloway’s automatic reversal rule, applied to his claim because his case did not

involve the joint representation of codefendants.

Id. at A5–A6, A33–A34.

The

Eleventh Circuit concluded that Holloway applies only to cases involving the joint

representation of codefendants based on its independent analysis of Holloway and

Sullivan and its interpretation of the language that this Court used in deciding

Holloway. Id. at A33–A34. And having found that the Sullivan standard applies to

Dallas’s claim, the Eleventh Circuit correctly held that the CCA’s application of

Sullivan in resolving his claim was neither contrary to nor an unreasonable

application of then-existing clearly established federal law. Id.

True, the Eleventh Circuit briefly mentioned Mickens v. Taylor, 535 U.S. 162

(2002), in addressing Dallas’s claim but only to the extent that Mickens summarized

the Court’s earlier holdings in Holloway and Sullivan. Id. at A35–A36. After all,

the narrow question presented in Mickens was about “the effect of a trial court’s

failure to inquire into a potential conflict upon the Sullivan rule that deficient

performance of counsel must be shown.” 535 U.S. at 174. Having correctly found

that the trial court “adequately discharged its duty” by investigating the alleged

conflict after Dallas’s counsel brought it to the court’s attention, Pet. App. A36–A37,

the Eleventh Circuit had no reason to consider, much less apply, Mickens in

resolving Dallas’s claim and did not do so. Instead, the court relied solely on its own

interpretation of Holloway and Sullivan in determining that the CCA’s denial of his

claim was reasonable. Pet. App. A33–A34.

Dallas has failed to show that the Eleventh Circuit erred in holding that the

CCA’s denial of his claim was not contrary to or an unreasonable application of

then-existing clearly established federal law. And he entirely has failed to show

that the Eleventh Circuit relied on any precedent from this Court that post-dates

the CCA’s decision in reaching that result.

Additionally, Dallas does not point to a single case in which a federal court

has granted habeas relief where a state court applied a rule of constitutional law

that was later embraced by this Court. Granting the extraordinary writ in such a

case would be unwarranted for “habeas corpus is a guard against extreme

malfunctions in the state criminal justice systems, not a substitute for ordinary

error correction through appeal.” Richter, 562 U.S. at 102–03 (quotation omitted).

There is no “extreme malfunction” present in such circumstances.

For those reason, his case is a poor vehicle for deciding whether federal

habeas courts can consider precedent post-dating a state-court decision in

determining whether that decision was reasonable. The writ should be denied.

The Eleventh Circuit correctly held that the CCA’s denial of

Dallas’s conflict-of-interest claim was reasonable.

The Eleventh Circuit properly applied AEDPA deference in correctly holding

that the CCA’s denial of Dallas’s conflict-of-interest claim was neither contrary to

nor an unreasonable application of then-existing clearly established federal law and

was not based on an unreasonable determination of the facts. Pet. App. A33–A40.

For that additional reason, certiorari should be denied.

As a critical threshold matter, a state-court decision cannot be contrary to

clearly established federal law, under 28 U.S.C. § 2254(d)(1), where this Court has

not confronted the specific question presented. Woods v. Donald, 575 U.S. 312, 317

(2015); see also Kernan v. Cuero, 138 S. Ct. 4, 9 (2017). Likewise, where this Court’s

“cases give no clear answer to the question presented, . . . it cannot be said that the

state court unreasonably applied clearly established Federal law.” Wright v. Van

Patten, 552 U.S. 120, 126 (2008) (cleaned up). Precedent from the courts of appeals

cannot “be used to refine or sharpen a general principle of Supreme Court

jurisprudence into a specific legal rule that this Court has not announced.”

Marshall v. Rodgers, 569 U.S. 58, 64 (2013).

Long before Holloway and Sullivan were decided, this Court established the

principle that the joint representation of codefendants who have conflicting

interests by one attorney violates the Sixth Amendment right to the effective

assistance of counsel. Glasser v. United States, 315 U.S. 60 (1942). There, the

district court appointed the defendant’s attorney to represent one of his

codefendants over the defendant’s objection that he and his codefendant had

divergent interests.

Id. at 68–69, 72.

This Court held that the district court

violated the defendant’s right to the effective assistance of counsel by requiring his

attorney to represent his codefendant and reversed his conviction. Id. at 76.

In reaching that result, the Court reasoned that “the ‘Assistance of Counsel’

guaranteed by the Sixth Amendment contemplates that such assistance be

untrammeled and unimpaired by a court order requiring that one lawyer shall

simultaneously represent conflicting interests.” Id. at 70. The Court emphasized

that trial courts are duty-bound to ensure that “an accused has the assistance of

counsel” and “to refrain from . . . insisting, or indeed, even suggesting that counsel

undertake to concurrently represent interests which might diverge from those of his

first client, when the possibility of that divergence is brought home to the court.”

Id. at 76. And notably, the Court presumed that the defendant was prejudiced by

the conflict of interest, reasoning that “[t]he right to have the assistance of counsel

is too fundamental and absolute to allow courts to indulge in nice calculations as to

the amount of prejudice arising from its denial.” Id. at 75–76.

In Holloway, a single public defender was appointed to represent three

codefendants who were charged with robbing and terrorizing employees at a

restaurant. 435 U.S. at 477. Recognizing that his clients had divergent interests,

the attorney timely and repeatedly objected that he could not adequately represent

them and moved the trial court to appoint separate counsel for each defendant to

alleviate the conflict of interest. Id. at 477–78. The court denied his motions and

objections and refused to permit him to cross-examine any of the defendants on

behalf of the others. Id. at 477–80.

This Court reversed the defendants’ convictions, holding that the trial court’s

failure “to appoint separate counsel or to take adequate steps to ascertain whether

the risk [of conflicting interests] was too remote to warrant separate counsel”

violated their right to the assistance of counsel. Id. at 484. In so ruling, the Court

interpreted its decision in Glasser, 315 U.S. at 75–76, “as holding that whenever a

trial court improperly requires joint representation over timely objection reversal is

automatic.” Id. at 488. But in announcing that automatic reversal rule, the Court

was careful to confine its reach only to cases involving the joint representation of

codefendants who have conflicting interests. Id. at 488–89.

Two years later, this Court was confronted with the scenario in which a

defendant and his codefendants were represented by the same attorneys, but the

defendant, who was tried separately, did not object to the joint representation.

Sullivan, 446 U.S. at 337–38. The Court held that a trial court “need not initiate an

inquiry” into the propriety of joint representation absent an objection or unless the

court “knows or reasonably should know that a particular conflict exists.” Id. at

346–47. Applying that holding to the facts of the case, the Court concluded that the

trial court did not have an affirmative duty to inquire whether there was a conflict

of interest. Id.

Significantly, the Court declined to extend Holloway’s automatic reversal rule

to cases where a defendant did not object to joint representation at trial. Id. at 348.

Instead, the Court held that a defendant who failed to object “must demonstrate

that an actual conflict of interest adversely affected his lawyer’s performance” to

establish a Sixth Amendment violation. Id. If a defendant makes that showing,

then prejudice is presumed. Id. at 349–50; see also Strickland, 466 U.S. at 692.

Here, the Eleventh Circuit correctly determined that the CCA’s application of

Sullivan in resolving Dallas’s conflict-of-interest claim was neither contrary to nor

an unreasonable application of then-existing clearly established federal law and

that its decision was not based on an unreasonable determination of the facts. Pet.

App. A33–A40. That is so for at least three reasons.

First, the Eleventh Circuit correctly held that it was reasonable for the CCA,

in light of then-existing precedent, to conclude that Holloway’s rule applied only in

the context of the joint representation of codefendants and to apply Sullivan’s

standard instead in adjudicating Dallas’s claim. Pet. App. A33–A34, A40. The CCA

denied his claim in its 1997 decision affirming his convictions and sentence. Dallas,

711 So. 2d at 1111.

At that time, this Court had decided that a defendant’s

conviction must be reversed “whenever a trial court improperly requires joint

representation over timely objection.” Holloway, 435 U.S. at 488. But the Court

had not applied Holloway’s rule in any other scenario and had declined to extend it

to cases where a defendant fails to object to joint representation at trial.5 Sullivan,

446 U.S. at 348.

Indeed, the CCA’s application of the Sullivan standard to Dallas’s claim

cannot have been contrary to or an unreasonable application of then-existing clearly

established federal law because this Court, at the time the CCA rendered its

decision, had not confronted the specific question of whether Holloway’s automatic

reversal rule applies to conflicts of interest arising outside the context of the joint

representation of codefendants. See, e.g., Woods, 575 U.S. at 317; Kernan, 138 S. Ct.

at 9. In fact, this Court has yet to confront that question.

Dallas asserts that “pre-Mickens circuit court cases applying Holloway outside the codefendant

context demonstrate . . . that clearly established law at the time of [his] direct appeal extended

Holloway’s automatic reversal rule to cases outside the codefendant context.” Pet. 37–38 & n.80.

That is both beside the point and wrong. This Court’s decisions, not the decisions of the courts of

appeals, constitute clearly established federal law under 28 U.S.C. § 2254(d)(1). Parker v. Matthews,

567 U.S. 37, 48–49 (2012). And federal courts, pre-Mickens, routinely declined to apply Holloway’s

rule outside the context of the joint representation of codefendants. See, e.g., Mickens v. Taylor, 240

F.3d 348, 358 (4th Cir. 2001) (“The Sullivan Court did not extend the Holloway reversal rule,

however, beyond the facts of Holloway to all circumstances in which the defense did not object to a

conflict of interest at trial.”); Beets v. Scott, 65 F.3d 1258, 1260 (5th Cir. 1995) (en banc) (“Strickland

more appropriately gauges an attorney’s conflict of interest that springs not from multiple client

representation but from a conflict between the attorney’s personal interest and that of his client.”);

id. at 1265 (“The position adopted by this court en banc may be easily summarized. Strickland offers

a superior framework for addressing attorney conflicts outside the multiple or serial client context.”);

Garcia v. Bunnell, 33 F.3d 1193, 1198 n.4 (9th Cir. 1994) (“The vast bulk of the caselaw in the

attorney conflict area involves alleged conflicts arising out of representation of multiple defendants

by a single attorney who may not be able simultaneously to serve optimally the interests of each. It

is not logically necessary that the approach of these cases also apply to conflicts between a

defendant’s and the attorney’s own personal interests.”); Riley v. South Carolina, 82 F.Supp.2d 474,

480 (D. S.C. 2000) (holding that Holloway’s automatic reversal rule “is relevant only in the context of

an attorney representing multiple defendants”).

Second, the Eleventh Circuit correctly held that it was reasonable for the

CCA to apply Sullivan’s standard in resolving Dallas’s claim because the very

language that this Court employed in announcing the automatic reversal rule in

Holloway limited the application of that rule to cases where a trial court improperly

requires the joint represent of codefendants over timely objection. Pet. App. A34.

Even Dallas must have interpreted Holloway as applying only to cases involving the

joint representation of codefendants because he argued in his direct appeal brief

that the CCA should apply Sullivan, not Holloway, in resolving his conflict-ofinterest claim. Doc. 13–10 at Tab 2, p. 51.

Third, the Eleventh Circuit correctly held that the CCA’s conclusion that

Dallas failed to establish that an actual conflict of interest adversely affected his

counsel’s performance was based on a reasonable determination of the facts. Pet.

App. A37–A40. After he was appointed to represent Dallas, Agricola was appointed

as a Special Deputy Attorney General to represent the DMHMR “in a wholly

unrelated civil case” involving a “class action relating to conditions in Alabama’s

mental-health institutions.” Id. at A37. Agricola moved to withdraw as Dallas’s

counsel, citing a possible conflict of interest. Pet. App. D; Doc. 13–1 at C. 135–39.

The trial court held a hearing on his motion during which Agricola assured the

court that he would represent Dallas to the best of his ability if he remained on the

case. Doc. 126–1; Pet. App. A6. After listening to the arguments of counsel and

considering the Alabama State Bar Association’s opinion that his representation of

Dallas and the DMHMR did not present a conflict of interest, the court found that

there was no actual conflict of interest that would prevent Agricola from zealously

representing Dallas and denied his motion.6 Pet. App. A37.

As the Eleventh Circuit found, the CCA’s denial of Dallas’s claim not only

was reasonable but correct as well, and he fails to show otherwise. Pet. App. A38

(“Most critically, Dallas has failed to show that this supposed conflict had any

bearing on his counsel’s performance, much less that it amounted to an

unreasonable application of Sullivan or an unreasonable determination of the facts

for the [CCA] to conclude as much.”). In resolving his claim, the CCA correctly

found that Dallas failed to show that his interests were adverse to those of the

DMHMR and, thus, did not establish the existence of an actual conflict of interest.

Dallas, 711 So. 2d at 1111. The CCA further correctly found that Dallas did not

“establish[] by any evidence that his attorney’s performance was adversely affected”

by the alleged conflict of interest. Id. The CCA correctly applied those factual

findings to the law as set forth in Sullivan in denying his claim. Id.

Nevertheless, Dallas seeks to manufacture a conflict of interest by arguing

that Dr. Guy Renfro, the psychologist who conducted his court-ordered evaluation,

was contracted by the DMHMR and that Agricola, due to his representation of that

state agency, felt constrained to use Dr. Renfro as Dallas’s expert witness instead of

6 Dallas asserts that the Eleventh Circuit should not have considered the transcript of that hearing

because the CCA “found that no such hearing took place.” Pet. 38–39. That is misleading. The CCA

simply noted in passing that the trial court did not hold a hearing on Agricola’s motion to withdraw.

Dallas, 711 So. 2d at 1111. But in its Order denying his motion, which was before the CCA on direct

appeal, the trial court expressly stated that it had held a hearing at which it heard argument from

counsel and considered the applicable law. Doc. 13–1 at C. 141 (“hearing having been held and

argument and applicable law considered”). So, the CCA’s incorrect statement that the trial court did

not hold a hearing is, at most, a scrivener’s error or a simple oversight. And in any event, the

Eleventh Circuit’s determination that the CCA’s denial of his claim was reasonable clearly was not

premised on the contents of that transcript.

hiring an independent mental-health expert. Pet. App. A37–A40. The Eleventh

Circuit made short shrift of that argument. Id. The court correctly found that Dr.

Renfro’s testimony “was altogether beneficial to Dallas” and that the state-court

record is devoid of any evidence suggesting that his counsel chose Dr. Renfro as

their expert witness because of Agricola’s alleged conflict.7 Id. at A39–A40.

Simply put, Dallas has failed to show that the Eleventh Circuit erroneously

determined that the CCA’s decision was neither contrary to nor an unreasonable

application of then-existing clearly established federal law and was not based on an

unreasonable determination of the facts. He likewise has failed to show that the

Eleventh Circuit’s decision conflicts with any decision of this Court or creates a

circuit split. His claim, therefore, is meritless and unworthy of certiorari review.

III.

This Court should deny certiorari because Dallas did not file a timely

certiorari petition.

Dallas’s petition for writ of certiorari was due on or before February 26, 2021.

His certiorari petition was not timely filed because the Clerk did not receive his

petition in paper form until the following day. Because this Court lacks jurisdiction

to consider his untimely petition, certiorari should be denied.

Title 28 U.S.C. § 2101(c) requires a party in a civil case to file a petition for

writ of certiorari within ninety days of the entry of the judgment below, but a justice

7 Dallas asserts that the Eleventh Circuit should not have considered Jeffery Duffey’s testimony at

the state postconviction hearing that he and Agricola “weren’t concerned about a conflict” when they

selected Dr. Renfro to be their defense expert because the transcript of that hearing was not before

the CCA on direct appeal. Pet. 36. Because the Eleventh Circuit mentioned Duffey’s testimony in

just one sentence in its decision, there can be no doubt that the court would have reached the same

correct conclusion absent his testimony. Pet. App. A39–A40 (“Quite simply, there is no basis in this

record to suggest, let alone find, that the defense team chose to use Dr. Renfro and not another

expert because of any claimed conflict of interest.”).

of the Court, upon a showing of good cause, may extend the time for filing the

petition up to but no more than sixty days. The time period for filing a certiorari

petition in a civil case is “mandatory and jurisdictional.” Missouri v. Jenkins, 495

U.S. 33, 45 (1990). And Supreme Court Rule 13.2 provides that “[t]he Clerk will not

file any petition for a writ of certiorari that is jurisdictionally out of time.”

In 2017, this Court began requiring parties who are represented by counsel to

submit their filings both in paper form and through this Court’s electronic-filing

system. Critically, Supreme Court Rule 29.2, as of July 1, 2019, provides that “[a]

document is timely filed if it is received by the Clerk in paper form within the time

specified for filing.” So, under that rule, a petition for writ of certiorari is timely

only if the Clerk receives the petition in paper form within the specified time for

filing, regardless of whether or when the petition is filed electronically.

Dallas is not challenging a state-court judgment affirming his convictions and

sentence under 28 U.S.C. § 2101(d). Instead, he is seeking certiorari review of the

Eleventh Circuit’s decision affirming the district court’s denial of his petition for

writ of habeas corpus. It is well-settled that “habeas corpus proceedings are civil in

nature.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987). For that reason, he is a

civil litigant, and the jurisdictional time period for filing a certiorari petition set

forth in 28 U.S.C. § 2101(c) applies to his case.

The Eleventh Circuit denied Dallas’s petition for panel rehearing and

rehearing en banc on September 29, 2020. Pet. App. C. Pursuant to this Court’s

Order of March 19, 2020, Dallas had 150 days, or until February 26, 2021, to file a

timely petition for writ of certiorari. Because the Clerk received his petition in

paper form on February 27, 2021, his petition was not timely. Dallas then moved

this Court for leave to file an out-of-time petition. The Clerk docketed his motion as

case number 20M66, and on March 29, the following docket entry was added:

“Motion considered closed.” On that same day, his certiorari petition was docketed

in case number 20–7589.

Although Dallas’s untimely petition was docketed, certiorari should be denied

because this Court lacks jurisdiction to consider it. But even assuming, arguendo,

that this Court has jurisdiction to consider his petition, Dallas’s case now presents a

complex threshold jurisdictional question that this Court would have to resolve

before reaching his questions presented which, as explained above, are meritless

and unworthy of review in any event. So even if this Court has jurisdiction here,

his petition should be denied.

CONCLUSION

This Court should deny Dallas’s petition for writ of certiorari.

Respectfully submitted,

STEVE MARSHALL

Attorney General

Edmund G. LaCour Jr.

Solicitor General

s/ Henry M. Johnson

Henry M. Johnson*

Assistant Attorney General

Office of the Attorney General

501 Washington Avenue

Montgomery, Alabama 36130

(334) 242–7300

Henry.Johnson@AlabamaAG.gov

*Counsel of Record

Counsel for Respondent

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.