Opposition Brief — Artez Hammonds, Petitioner v. Alabama
Supreme Court briefSep 9, 2025
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No. 25-5374
CAPITAL CASE
In the Supreme Court of the United States
──────────────────────────
ARTEZ HAMMONDS,
Petitioner,
v.
STATE OF ALABAMA,
Respondent.
──────────────────────────
On Petition for Writ of Certiorari to the
Supreme Court of Alabama
──────────────────────────
BRIEF IN OPPOSITION
──────────────────────────
STEVE MARSHALL
Alabama Attorney General
Edmund G. LaCour Jr.
Alabama Solicitor General
Matthew James Clark*
Assistant Attorney General
OFFICE OF ALA. ATT’Y GEN.
501 Washington Avenue
Montgomery, AL 36104
(334) 242-7300
Matthew.Clark@AlabamaAG.gov
*Counsel of Record
Counsel for State of Alabama
CAPITAL CASE
QUESTIONS PRESENTED
1. Six years after he exhausted his appeals, Hammonds filed an original petition for
writ of certiorari in the Alabama Supreme Court, arguing that the United States
Court of Appeals for the Eleventh Circuit erred in adjudicating his federal habeas
petition. The Alabama Supreme Court treated his petition as a habeas petition
and denied it. Should this Court review the Alabama Supreme Court’s decision to
deny Hammonds’s request to overrule the Eleventh Circuit?
2. On the merits, Hammonds claims that the Eleventh Circuit’s decision conflicts
with Griffin v. California, 380 U.S. 609 (1965) and Carter v. Kentucky, 450 U.S.
288 (1981). He made the same argument when he petitioned this Court for
certiorari in 2018. See No. 17-9046. The Eleventh Circuit’s decision addressed an
issue that was not present in Griffin or Carter: whether the error was harmless
under Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). Should this Court grant
certiorari to reconsider the Eleventh Circuit’s decision seven years later when that
court concluded that the errors were harmless because the trial court issued a
sufficient curative instruction and because the evidence of Hammonds’s guilt was
overwhelming?
3. Finally, Hammonds claims that the prosecutor and circuit court committed
several other errors, but he fails to allege that he was prejudiced. Should this
Court grant certiorari to consider these alleged errors when they would not have
affected the outcome of Hammonds’s case?
i
PARTIES
1. Artez Hammonds, Petitioner before this Court.
2. State of Alabama, Respondent before this Court. Hammonds named the
Commissioner of the Alabama Department of Corrections as Respondent
before this Court, but like the courts below, this Court has named the State as
the proper Respondent.
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED .......................................................................................... i
PARTIES ....................................................................................................................... ii
TABLE OF CONTENTS ..............................................................................................iii
TABLE OF AUTHORITIES ......................................................................................... v
STATEMENT OF THE CASE...................................................................................... 1
A.
Statement of the Facts ................................................................................. 1
B.
Procedural History ....................................................................................... 3
C.
The Present Action ....................................................................................... 4
REASONS FOR DENYING THE PETITION ............................................................. 6
I.
This Case Is Not Worthy of Certiorari Review. ............................................... 8
A.
The Alabama Supreme Court Denied Hammonds’s Petition on
State Procedural Grounds. ........................................................................... 8
1. The Alabama Supreme Court lacked the authority to review
the Eleventh Circuit’s decision. ................................................................... 8
2. Hammonds failed to follow the proper procedures for seeking
post-conviction relief. .................................................................................... 9
3. Hammonds’s habeas petition was successive. ........................................... 10
B.
II.
Hammonds Raises No Valid Grounds for Certiorari Review. .................. 13
Hammonds’s Petition Is Meritless. ................................................................ 14
A.
There Is No Conflict with Griffin or Carter. .............................................. 15
B.
The Lower Courts Are Not Defying Griffin or Carter. .............................. 17
iii
C.
Executing Hammonds Would Not Be a Manifest Injustice or
Fundamentally Unfair. .............................................................................. 19
D.
There Are No Other Reasons Deserving This Court’s Review. ................ 20
CONCLUSION............................................................................................................ 23
iv
TABLE OF AUTHORITIES
Cases
Brooks v. Ala. Bd. of Pardons & Paroles,
644 So. 2d 481 (Ala. Crim. App. 1994) .................................................................... 10
Carter v. Kentucky,
450 U.S. 288 (1981) ................................................................................... i, 15, 16, 19
Citizens’ Bank v. Board of Liquidation,
98 U.S. 140 (1878) .................................................................................................... 13
Ex parte Barnes,
312 So. 3d 22 (Ala. 2020) ........................................................................................... 8
Ex parte Deramus,
882 So. 2d 875 (Ala. 2002) ......................................................................................... 6
Ex parte Grossman,
267 U.S. 87 (1925) .................................................................................................... 10
Ex parte Hammonds,
777 So. 2d 777 (Ala. 2000) ......................................................................................... 3
Ex parte Hammonds,
946 So. 2d 543 (Ala. 2005) ......................................................................................... 4
FEC v. NRA Political Victory Fund,
513 U.S. 88 (1994) .................................................................................................... 14
Griffin v. California,
380 U.S. 609 (1965) ......................................................................................... i, 15, 19
Grinols v. State,
10 P.3d 600 (Alaska 2000) ................................................................................. 10, 11
Hammonds v. State,
777 So. 2d 750 (Ala. Crim. App. 1999) .................................................. 1, 2, 5, 11, 12
Hammonds v. Alabama,
532 U.S. 907 (2001) .................................................................................................... 3
v
Hammonds v. Allen,
849 F. Supp. 2d 1262 (M.D. Ala. 2012) ..................................................... 4, 5, 11, 12
Hammonds v. Comm’r, Ala. Dep’t of Corr.,
712 F. App’x. 841 (11th Cir. 2017)................................................................... passim
Hammonds v. Comm’r, Ala. Dep’t of Corr.,
822 F.3d 1201 (11th Cir. 2016). ................................................................................. 4
Hammonds v. Dunn,
586 U.S. 840 (2018) .......................................................................................... 4, 5, 14
Hammonds v. State,
(SC-2025-0065) (Ala. Apr. 1, 2025)............................................................................ 5
Hammonds v. State,
925 So. 2d 1009 (Ala. Crim. App. 2005) .................................................................... 4
M’Culloch v. Maryland,
17 U.S. 316 (1819) ...................................................................................................... 9
Miller v. Gammie,
335 F.3d 889 (9th Cir. 2003) .................................................................................... 18
Powell v. State,
CR-20-0727, 2024 WL 1947990 (Ala. Crim. App. May 3, 2024)…………………….20
Russo v. Ala. Dep’t of Corr.,
149 So. 3d 1079 (Ala. 2014) ....................................................................................... 6
Salinas v. Texas,
570 U.S. 178 (2013) .................................................................................................. 18
Sykes v. State,
CR-2022-0546, 2024 WL 1947829 (Ala. Crim. App. May 3, 2024)…………………19
Townes v. Alabama,
586 U.S. 977 (2018) (mem.). .................................................................................... 22
United States v. Castaneda,
94 F.3d 592 (9th Cir. 1996) ...................................................................................... 17
United States v. Padilla,
639 F.3d 892 (9th Cir. 2011) .................................................................................... 18
vi
United States v. Russo,
796 F.2d 1443 (11th Cir. 1986) ................................................................................ 17
United States v. Soto,
519 F.3d 927 (9th Cir. 2008) .................................................................................... 18
Statutes
ALA. CONST. 2022 art. VI, § 140 ............................................................................... 9, 10
ALA. CONST. 2022 art. VI, § 150 .................................................................................... 9
Treatises
14 C.J.S. Certoriari § 1....................................................................................................5
39 C.J.S. Habeas Corpus § 11.................................................................................. 6, 10
Rules
ALABAMA RULES OF APPELLATE PROCEDURE
Rule 21(b) ................................................................................................................. 8, 13
Rule 21(c) ....................................................................................................................... 8
ALABAMA RULES OF CRIMINAL PROCEDURE
Rule 32 ........................................................................................................................... 9
Rule 32.1 ......................................................................................................................... 9
Rule 32.2 ......................................................................................................................... 9
Rule 32.4 ......................................................................................................................... 9
Rule 32.6 ......................................................................................................................... 9
SUPREME COURT RULE
Rule 10(a) ..................................................................................................................... 13
Rule 10(b) ..................................................................................................................... 13
Rule 20.4(a). ................................................................................................................. 10
vii
STATEMENT OF THE CASE
A.
Statement of the Facts
In 1990, Marilyn Mitchell had just graduated from nursing school, was
engaged to be married, and was about to begin her nursing career. Hammonds v.
State, 777 So. 2d 750, 754 (Ala. Crim. App. 1999) (“Hammonds I”). But all that
changed a few months before her wedding day. On May 14, 1990, Artez Hammonds
and another person had delivered furniture for the master bedroom in her townhouse,
in which she and her fiancé were going to live after they married. Id. But on the
evening of May 15, Mitchell’s fiancé entered the townhouse and found that his brideto-be had been brutally slain. Id. at 754-55.
Mitchell’s body was on the second floor in the hallway at the top of the stairs.
Id. at 754. She was wearing nothing except a T-shirt, which apparently had been used
to restrain and strangle her. Id. at 755. She was lying on her back in a pool of blood,
and her legs were spread wide open. Id. When the police arrived, they determined
that she had been attacked while she was baking a cake in her kitchen. Id.
Investigators also found sperm in her vagina and in her anus, as well as blood
splatters throughout the home. Id.
Mitchell suffered horrific stab wounds. In addition to the strangulation marks
on her necks, her attacker had stabbed her in the neck over 30 times. Id. These
slashes had severed her vocal cords, cut her jugular vein, and sliced her carotid
artery. Id. Her attacker had also inflicted two “extremely violent” wounds to her
chest. Id. One slash cut through three ribs, and the other pierced her aorta, which
killed her. Id. Mitchell was alive when she suffered every wound. Id.
1
Investigators also found semen in a piece of tissue paper by the bed and
recovered a fingerprint from her phone. Id. They determined that Mitchell’s murderer
may have moved the body after the attack, cleaned up the crime scene, smoked a
cigarette, and flicked the ashes on her body. Id. Finally, they noticed that Mitchell’s
engagement ring and $400 in cash were missing. Id.
The case went cold for years until the CODIS DNA system gave investigators
a new lead, which led them back to the delivery men. Id. The evidence eventually led
them to Hammonds, who was serving a 20-year sentence for the attempted murder
of another woman. Id. Because Hammonds had to give a DNA sample upon his
admission to the prison, investigators were able to match his DNA with the sperm in
Mitchell’s body, the semen in the paper tissue, and the blood splatters. Id.
Additionally, the fingerprint from Mitchell’s phone matched Hammonds. Id. Finally,
right after the murder, Hammonds had pawned a diamond ring similar in appearance
to Mitchell’s. Id.
Additionally, the evidence showed that Hammonds was very strong, well-built,
and that he smoked. Trial Tr. vol. 25, p. 189. The victim, in contrast, was 5’1” and
110 lbs. Hammonds I, 777 So. 2d at 754. After delivering the furniture to the
townhome, Hammonds remarked to his coworker that Mitchell was “a nice looking
lady.” Trial tr. vol. 25, p. 196. Hammonds said that he had been hurt by a woman and
subsequently sought to control them. Id., vol. 33, pp. 726, 730, and 734.
2
B.
Procedural History
Hammonds was tried for capital murder and found guilty. Id. at 754. The jury
unanimously recommended that he be sentenced to death, and the trial court
accepted their recommendation. Id.
On direct appeal, Hammonds argued among other things that the prosecutor
violated his Fifth Amendment right against self-incrimination. Id. at 763.
Specifically, when a witness was asked to comment on what Hammonds would have
done, the prosector objected, “Objection. He can’t testify [to] … what Mr. Hammonds
would do. Let him testify.” Id. at 764. Hammonds objected and moved for a mistrial.
The trial court denied that motion but issued a curative instruction to the jury that
followed the Alabama Supreme Court’s precedent. Id. at 764-65 (quoting Ex parte
Wilson, 571 So. 2d 1251, 1261, 1265 (Ala. 1990)). After concluding that the curative
instruction complied with precedent, the Alabama Court of Criminal Appeals held
that the trial court did not abuse its discretion in refusing to grant a mistrial. Id. at
765. The Alabama Supreme Court granted certiorari and affirmed. Ex parte
Hammonds, 777 So. 2d 777 (Ala. 2000) (“Hammonds II”). Although that court
expressed concerns about the prosecutor’s comments, it held that the trial court’s
curative instructions were sufficient and that the trial court did not abuse its
discretion in refusing to grant a mistrial. Id. at 778. Hammonds petitioned this Court
for certiorari, which it denied. Hammonds v. Alabama, 532 U.S. 907 (2001) (mem.).
Hammonds then filed a petition for postconviction relief in state court, which was
denied on September 13, 2002. The Alabama Court of Criminal Appeals affirmed,
3
Hammonds v. State, 925 So. 2d 1009 (Ala. Crim. App. 2005) (table), and the Alabama
Supreme Court denied certiorari, Ex parte Hammonds, 946 So. 2d 543 (Ala. 2005)
(table).
Hammonds then filed a petition for a writ of habeas corpus in the U.S. District
Court for the Middle District of Alabama, which denied his petition in a published
opinion. Hammonds v. Allen, 849 F. Supp. 2d 1262 (M.D. Ala. 2012) (“Hammonds
III”). Hammonds appealed to the Eleventh Circuit. That court initially had a question
about a page in the trial transcript—the same portion of the record about which
Hammonds complains in his present petition—and certified two questions to the
Alabama Supreme Court. Hammonds v. Comm’r, Ala. Dep’t of Corr., 822 F.3d 1201
(11th Cir. 2016). After that court declined to answer the certified questions, the
Eleventh Circuit affirmed the district court’s decision. Hammonds v. Comm’r, Ala.
Dep’t of Corr., 712 F. App’x. 841 (11th Cir. 2017) (“Hammonds IV”). The panel chided
the prosecutor for his remark and even reported him to the State Bar, but it was
ultimately satisfied by the trial court’s immediate curative instruction and found no
prejudice in light of “overwhelming evidence” of guilt. Id. at 852-58. Hammonds again
petitioned this Court for certiorari, which it denied. Hammonds v. Dunn, 586 U.S.
840 (2018) (mem.).
C.
The Present Action
On January 24, 2025—over six years after he had exhausted his appeals—
Hammonds filed a “Petition for an Original Writ of Certiorari” with the Alabama
4
Supreme Court.1 Invoking that court’s original jurisdiction under the Alabama
Constitution, Hammonds asked the court to “order an original writ” to the trial court
to “vacate [his] conviction and sentence” and “order that he be granted a new trial[.]”
Pet. for Original Writ of Certiorari at 33, Hammonds v. State (SC-2025-0065) (Ala.
Apr. 1, 2025), Dkt. No. 1. Hammonds’s legal argument was that the Eleventh and
Ninth Circuits defied this Court’s precedents,2 that the Eleventh Circuit had
misunderstood the Alabama Supreme Court’s precedent in making its decision, and
that the Alabama Supreme Court should grant certiorari to “correct the Eleventh
Circuit’s misapplication of law” and to “clarify that this Court does not endorse the
faulty reasoning imputed to it[.]” Id. at 4. But the heart of Hammonds’s rather
confusing argument was that the prosecutor improperly commented on his right to
remain silent at trial. See id. at 7-8. This issue had already been addressed four times,
and Hammonds lost every time. Hammonds I, 777 So. 2d at 763-65; Hammonds II,
777 So. 2d at 778; Hammonds III, 849 F. Supp. 2d at 1303-06; Hammonds IV, 712 F.
App’x at 853-58. Recognizing the procedural irregularity of Hammonds’s petition,
the Alabama Supreme Court entered an order treating Hammonds’s petition as a
habeas petition rather than a certiorari petition. Dkt. No. 6.3
Although Hammonds claimed that he was proceeding pro se, he could not have been working
completely on his own because the prison in which he lives lacked the software to produce a document
in Century Schoolbook. Dkt. 12 at 1 n.1. It appears the filings below and petition to this Court have
been ghostwritten.
1
2 This was a key argument in Hammonds’s 2018 certiorari petition to this Court, which it denied. Pet.
for Writ of Certiorari at 14-21, Hammonds v. Dunn, 586 U.S. 840 (2018) (mem.).
3 The Alabama Supreme Court was correct. A writ of certiorari exists to call up the record of a lower
court and review it. 14 C.J.S. Certoriari § 1. Although Hammonds argued that the Alabama Supreme
5
The State filed a motion to dismiss, arguing that Hammonds’s petition was
really an untimely attempt to have the Alabama Supreme Court revisit Hammonds
II. Dkt. No. 7. The State also argued that Hammonds’s petition was barred because
Alabama’s rules for postconviction relief required him to initiate his action in the trial
court. Id. Finally, the State argued that even if Hammonds could bypass Alabama’s
usual procedures, his habeas petition would still be barred as successive. Id.
On April 1, 2025, the Alabama Supreme Court denied Hammonds’s habeas
petition. Dkt. 13. Hammonds timely filed a motion to reconsider. Dkt. No. 14. On May
2, 2025, the Alabama Supreme Court denied his motion. Dkt. No. 16. Hammonds then
petitioned this Court for certiorari.
REASONS FOR DENYING THE PETITION
Hammonds exhausted his appeals almost seven years ago. This petition is
nothing more than an untimely collateral attack on the lower court’s decisions. This
Court should recognize Hammonds’s petition for what it is and deny certiorari.
As an initial matter, Hammonds invoked the Alabama Supreme Court’s
original jurisdiction to try to get it to reopen his case. The essence of his argument
was that the Eleventh Circuit decided Hammonds IV incorrectly, and he wanted the
Alabama Supreme Court to overrule the Eleventh Circuit. Clearly, that would have
been improper. Furthermore, Hammonds completely skirted Alabama’s usual rules
Court should address the Eleventh Circuit’s decision, the Alabama Supreme Court has no power to
call up the Eleventh Circuit’s record for review. Instead, Hammonds really sought for the State to
bring him forth and show why he was still in custody, which is the object of a habeas petition. 39 C.J.S.
Habeas § 1. Alabama routinely treats a pleading according to its substance rather than its style. See
Russo v. Ala. Dep’t of Corr., 149 So. 3d 1079, 1080-81 (Ala. 2014); Ex parte Deramus, 882 So. 2d 875,
876-78 (Ala. 2002). Therefore, the Alabama Supreme Court correctly treated Hammonds’s petition as
a habeas petition rather than a cert petition.
6
for filing petitions for postconviction relief, and he provided no good reason why the
Alabama Supreme Court should have excused his maneuver. Finally, his petition was
successive, and therefore it was barred. Hammonds now desires for this Court to put
the Alabama Supreme Court in error for declining to overrule a federal court of
appeals and for enforcing state procedural law. Clearly, there is no merit to this
request. Finally, the Alabama Supreme Court’s decision below does not even come
close to falling under a ground for certiorari review under Supreme Court Rule 10.
The Court should deny Hammonds’s petition for those reasons alone.
If the Court wishes to consider Hammonds’s case further, his petition is
meritless. He claims that the Eleventh Circuit’s decision in Hammonds IV (which,
again, he seems to think the Alabama Supreme Court should have corrected) conflicts
with two of these Court’s precedents, but he falls far short of proving that. He also
claims that two of the federal courts of appeals have flouted this Court’s precedents,
and three more courts are closely following behind. None of that is true. Even if it
were, this case would provide a poor vehicle for review because it arises not from a
federal circuit court decision but from a state supreme court decision.
Finally, Hammonds throws miscellaneous arguments at the wall to see if they
stick. He claims that his conviction and sentence violate fundamental standards of
fairness and will result in a manifest injustice, but this is just a thinly veiled attempt
to resurrect his prosecutorial-misconduct claim. The Eleventh Circuit already
resolved that claim against him, reasoning that the trial court’s curative instructions
were sufficient and—importantly—that the State presented overwhelming weight of
7
Hammonds’s guilt. He also claims that a page in the transcript was changed, that the
State lost the cassette-tape recording of his trial, and that contractors who were
working on the trial court’s building rifled through his case file after his conviction
and sentence. Still, even as he makes these allegations, he never alleges how he was
prejudiced. For all these reasons, this Court should deny certiorari.
I.
This Case Is Not Worthy of Certiorari Review.
A.
The Alabama Supreme Court Denied Hammonds’s Petition on
State Procedural Grounds.
1.
The Alabama Supreme Court lacked the authority to
review the Eleventh Circuit’s decision.
As discussed above, Hammonds brought a highly unorthodox original action in
the Alabama Supreme Court over six years after he had exhausted his state and
federal appeals and this Court denied certiorari. Although the Alabama Supreme
Court denied Hammonds’s habeas petition rather than dismissing it, this should not
be taken as a sign that the Alabama Supreme Court adjudicated the merits of his
claims. On the contrary, Rule 21(b) of the Alabama Rules of Appellate Procedure
provides, “If the court is of the opinion that the writ should not be granted, it shall
deny the petition.” This is the rule that applies to habeas petitions. See ALA. R. APP.
P. 21(c) (applying ALA. R. APP. P. 21(b) to applications for extraordinary writs); Ex
parte Barnes, 312 So. 3d 22, 28 (Ala. 2020) (per curiam) (applying ALA. R. APP. P. 21
in a habeas proceeding). Therefore, the Alabama Supreme Court’s mechanism for
rejecting a habeas petition is denial, regardless of whether the reason is based on
procedure or the merits.
8
In this case, Hammonds asked the Alabama Supreme Court to review the
Eleventh Circuit’s decision. Dkt. No. 1, at 4. But how could it? Clearly, the Alabama
Supreme Court has no authority to review the decisions of the Eleventh Circuit. See
ALA. CONST. art. VI, § 140 (giving the Alabama Supreme Court jurisdiction over
courts of inferior jurisdiction but making no mention of federal courts); see also
M’Culloch v. Maryland, 17 U.S. 316, 429 (1819) (holding that the states cannot
exercise sovereignty over the federal government). Therefore, the Alabama Supreme
Court’s decision cannot be understood as collaterally reviewing the Eleventh Circuit’s
decision and affirming its judgment, and therefore it is not proper for this Court to
review the Eleventh Circuit’s decision seven years after the event.
2.
Hammonds failed to follow the proper procedures for
seeking post-conviction relief.
Even treating Hammonds’s petition as a habeas petition, the State correctly
argued that Hammonds had flouted Alabama’s procedures for seeking post-conviction
relief. The Alabama Constitution gives the Alabama Supreme Court authority to
establish procedural rules for how those writs should be sought. See ALA. CONST. 2022
art. VI, § 150. Pursuant to that authority, the Alabama Supreme Court promulgated
Rule 32 of the Alabama Rules of Criminal Procedure, which “displaces all post-trial
remedies.” ALA. R. CRIM. P. 32.4. Rule 32 requires a petitioner to file a petition for
postconviction relief in the circuit court in which he was tried. ALA. R. CRIM. P. 32.6.
It also provides limited grounds for relief and sets time bars for bringing a claim. ALA.
R. CRIM. P. 32.1, 32.2. Hammonds failed to file his petition in the state circuit court,
9
provide adequate grounds for relief, or demonstrate why his claims were not timebarred. Therefore, Rule 32 was fatal to his petition.
Of course, the Alabama Supreme Court does have inherent authority to hear
original habeas petitions. See ALA. CONST. 2022 art. VI, § 140. But that authority is
like this Court’s authority to entertain original habeas petitions: the usual practice
is to begin in the district courts, and this Court will not issue an original writ absent
exceptionally good cause. See SUP. CT. R. 20.4(a). To the State’s knowledge, this Court
has not done so since 1925, when the petitioner had received a presidential pardon
but was still in custody. Ex parte Grossman, 267 U.S. 87 (1925). In the same way, the
Alabama Supreme Court would not forgive Hammonds skirting Rule 32 absent
undeniably good cause, which he failed to prove.
3.
Hammonds’s habeas petition was successive.
Additionally, Hammonds’s habeas petition was successive. “Claims raised in a
habeas petition which the petitioner has raised in prior proceedings and which have
been previously decided on the merits in those proceedings are procedurally barred
in the habeas petition.” 39 C.J.S. Habeas Corpus § 11. Most jurisdictions hold that
the doctrine of res judicata, which bars claims that were not only raised but could
have been raised in previous litigation, applies to habeas proceedings. Id.; Grinols v.
State, 10 P.3d 600, 615 & n.48 (Alaska 2000) (collecting cases). The Alabama Court
of Criminal Appeals has taken a narrower approach, holding that res judicata does
not apply but that successive petitions need not be entertained. Brooks v. Ala. Bd. of
Pardons & Paroles, 644 So. 2d 481, 482-83 (Ala. Crim. App. 1994); see Grinols, 10
10
P.3d at 615 & n.48 (recognizing that Brooks is minority position but that successive
petitions need not be entertained under Alabama’s approach). Thus, in Alabama, a
petitioner might be able to raise a claim that he should have raised in a previous
proceeding, but petitions that raise matters that have been actually litigated and
decided are successive and subject to dismissal.4
In this case, each of Hammonds’s claims have been considered and rejected in
previous proceedings. Hammonds’s primary complaint was that he should have been
granted a mistrial because the prosecutor said, “Let him testify.” But this argument
has already been considered and rejected four times. Hammonds I, 777 So. 2d at 76365; Hammonds II, 777 So. 2d at 778; Hammonds III, 849 F. Supp. 2d at 1303-06;
Hammonds IV, 712 F. App’x at 853-58. The only new points of law that Hammonds
raises were two decisions from the Alabama Court of Criminal Appeals, see Dkt. No.
1 at 20-21, which were not binding on the Alabama Supreme Court and were not
grounds for reopening his case decades later. Furthermore, as Hammonds conceded,
those cases are distinguishable because no curative instructions were given. Id. at 21.
Moreover, Hammonds missed the point that the governing precedent was still the
Alabama Supreme Court’s decision in Wilson, not the two distinguishable decisions
from the Alabama Court of Criminal Appeals. Thus, Hammonds raised no new points
of law that could invalidate the previous rulings against him, and therefore, his
petition was successive.
Because the Alabama Supreme Court never adopted Brooks, it was free to follow the majority
approach instead of Brooks’s narrower approach.
4
11
Hammonds raised several other points that had already been decided against
him. For instance, the prosecutor made a comment that Hammonds could not “keep
[his] stories straight in prison.” Dkt. No. 1 at 23. But like the prosecutor’s other
comment, the trial court sustained an objection and instructed the jury to disregard
the part about him being in prison. Four courts ruled against Hammonds on this
issue. Hammonds I, 777 So. 2d at 766-67; Hammonds II, 777 So. 2d at 778;
Hammonds III, 849 F. Supp. 2d at 1303-06; Hammonds IV, 712 F. App’x at 852-58.
Finally, Hammonds claimed that a page of the record was changed in his
appeal to the Eleventh Circuit. Pet. 27. The Eleventh Circuit considered this matter
in Hammonds IV and ruled in Hammonds’s favor. 712 F. App’x at 846-49.
Nevertheless, Hammonds still lost because, even on the record that was more
favorable to him, the curative instruction was still sufficient and the overwhelming
evidence of his guilt outweighed any prejudice. Id. at 858.5
In sum, the Alabama Supreme Court did not even have the authority to grant
the relief that Hammonds requested. Furthermore, Hammonds flouted the usual
procedures for filing a petition for postconviction relief. Finally, Hammonds’s
arguments had been raised and adjudicated previously, which barred his petition as
successive. These problems gave the Alabama Supreme Court more than adequate
5 In his claim about the transcript being altered, Hammonds also claimed that the audio recording of
his trial could not be found when his Rule 32 counsel’s investigator tried to find it. Dkt. No. 1 at 27.
He argued that the recording was relevant to deciding which version of the transcript was accurate.
Id. He further speculated that workers who were renovating the courthouse tampered with his file,
which led to them taking the tape and possibly some other evidence. Id. at 31. But all of this amounted
to a red herring. Hammonds won the transcript issue before the Eleventh Circuit, but that court
ultimately ruled against him on the merits.
12
reasons to be “of the opinion that the writ should not be granted” and deny the
petition without ever getting to the merits. ALA. R. APP. P. 21(b).
B.
Hammonds Raises No Valid Grounds for Certiorari Review.
This Court has provided three grounds for certiorari review in Supreme Court
Rule 10. While not exhaustive, these grounds “indicate the character of the reasons
the Court considers.” SUP. CT. R. 10. Rule 10(a) is inapplicable as it addresses
decisions from a federal court of appeals. SUP. CT. R. 10(a). Rules 10(b) and (c) address
decisions of state courts of last resort, but they apply only when such a court has
decided a federal question. SUP. CT. R. 10(b) (addressing when a state supreme court
has decided “an important federal question” that causes a conflict with other lower
courts); SUP. CT. R. 10(c) (addressing a state court that has “decided an important
question of federal law” that should be decided by this Court).
In this case, there is no indication that the Alabama Supreme Court decided
any federal question, much less an important one. As discussed above, the Alabama
Supreme Court clearly did not reach the merits in denying Hammonds’s petition. See
Part I.A., supra. Even if the Alabama Supreme Court might have considered
Hammonds’s argument on the merits, it is not apparent from the record. This Court
has held that “it is not enough” to show that a federal question was presented to a
state court of last review, but rather “[i]t must appear that its decision was necessary
to the determination of the cause, and that it actually was decided, or that the
judgment as rendered could not have been given without deciding it.” Citizens’ Bank
v. Board of Liquidation, 98 U.S. 140, 142 (1878) (citation modified). In this case, there
13
is no indication that the Alabama Supreme Court decided the question presented or
that it was necessary to the determination of the cause. Therefore, there is no
indication that the Alabama Supreme Court ever decided a federal question that
should be reviewed by this Court.
In reality, Hammonds’s argument is that the Eleventh Circuit decided an
important federal question in Hammonds IV that conflicts with this Court’s
precedents. But the time for Hammonds to make that argument was in his cert
petition challenging Hammonds IV. To his credit, he raised that question in that
petition. Pet. for Writ of Certiorari at 14-21, Hammonds v. Dunn, 586 U.S. 840 (2018)
(mem.). However, this Court denied cert. Hammonds, 586 U.S. at 840 (mem.).
Hammonds cannot resurrect this long-dead claim years after this Court lost
jurisdiction to review Hammonds IV. See FEC v. NRA Political Victory Fund, 513
U.S. 88, 90 (1994) (noting that the ninety-day period of 28 U.S.C. § 2101(c) is
jurisdictional).
II.
Hammonds’s Petition Is Meritless.
While the State believes that the argument in Part I is sufficient to deny
Hammonds’s petition, the State will nevertheless address Hammonds’s argument on
the merits. Initially, the State notes that Hammonds’s argument is basically a
regurgitation of his argument from his certiorari petition in 2018. See Pet. for Writ of
Certiorari at 10-21, Hammonds v. Dunn, 586 U.S. 840 (2018) (mem.). Because the
Court rejected those arguments seven years ago, the State will endeavor to be brief
as it addresses basically the same arguments again.
14
A.
There Is No Conflict with Griffin or Carter.
Hammonds first argues that the Eleventh Circuit’s decision conflicts with
Griffin v. California, 380 U.S. 609 (1965) and Carter v. Kentucky, 450 U.S. 288 (1981).
In Griffin, this Court held that the Fifth Amendment, applicable to the States
through the Fourteenth Amendment, “forbids either comment by the prosecution on
the accused's silence or instructions by the court that such silence is evidence of guilt.”
Griffin, 380 U.S. at 615. Griffin specifically declined to answer whether a defendant
has a right to a jury instruction that his silence may not be considered against him if
he requests it. Id. at 615 n.6. In Carter, the Court answered that question in the
affirmative. Carter, 450 U.S. at 305.
Hammonds claims that Hammonds IV conflicts with Griffin, but he is wrong.
Hammonds IV explicitly acknowledged that the prosecutor violated Griffin by
commenting on his right to remain silent. Hammonds IV, 712 F. Appx. at 851
(“Valeska’s ‘Let him testify’ remark plainly violated Hammonds's Fifth and
Fourteenth Amendment right against self-incrimination and therefore constituted
Griffin error.”). However, that is not the end of the analysis. Because this issue was
reviewed under AEDPA, the next step was to determine whether the error “‘had a
substantial and injurious effect or influence in determining the jury’s verdict.’” Id. at
849 (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). The Eleventh Circuit
correctly held that it did not for two reasons: (1) the trial court timely issued a
curative instruction, and (2) the weight of Hammonds’s guilt was truly overwhelming.
Id. at 853-56, 858. Therefore, Hammonds IV did not conflict with Griffin.
15
Next, Hammonds claims that the Eleventh Circuit’s decision conflicts with
Carter, but he is wrong again. Carter requires a trial court to give an instruction that
the jury may not infer guilt from the defendant’s decision not to testify—but only if
the defendant asked for it. Carter, 450 U.S. at 305. In this case, the defendant did not
ask for it. Hammonds IV, 712 F. Appx. at 853. Therefore, at least on its face, there
can be no conflict with Carter. Nevertheless, the trial court in this case issued a
curative instruction anyway. Id. Even though the instruction was “not a model for
clarity,” it still “instructed the jury to disregard Valeska’s ‘Let him testify’ remark,”
to “draw no presumption” from Hammonds exercising his Fifth Amendment right,
and “not to consider counsel’s statements,” including Valeska’s, “as evidence during
deliberations.” Id. at 853-54. Finally, even though the instruction did not use the word
“inference,” it still instructed the jury not to use Hammonds’s silence “to inform its
decision about his guilt.” Id. at 854. Thus, even if Carter was applicable, the trial
court still adequately instructed the jury not to use Hammonds’s silence against him.
Therefore, there is no conflict.
Hammonds also claims that the Eleventh Circuit’s decision “will embolden
other circuits and state appellate courts—not to mention prosecutors—to disregard
the clear commands of Griffin and Carter[.]” Pet. 9. If this were true, then Hammonds
should be able to point to at least one case that was decided in the nearly eight years
since Hammonds IV that proves his point. However, he has not done so. Thus,
Hammonds’s assertion is not only legally incorrect, but his assertion that the sky is
falling because of the underlying decisions is false.
16
B.
The Lower Courts Are Not Defying Griffin or Carter.
Hammonds repeatedly claims that this Court should grant certiorari because
the Eleventh and Ninth Circuits have defied Griffin and Carter and the First, Second,
and Tenth Circuits are not far behind. For the reasons below, these contentions are
meritless.
Hammonds first claims that the Eleventh Circuit’s decision in Hammonds IV
conflicts with Griffin and Carter. Pet. 10. But as explained above, this is meritless.
Part II.A, supra. Hammonds also briefly claims that the Eleventh Circuit’s prior
decision in United States v. Russo, 796 F.2d 1443 (11th Cir. 1986), conflicts with
Carter. However, Russo held that there was no conflict because “the circuit court’s
instruction that a defendant’s decision not to testify could not be considered ‘in any
way during … deliberations’ was broader and more beneficial to the [defendants] than
their requested instruction.” Russo, 796 F.2d at 1455. Clearly, the instruction not to
consider the defendant’s silence in any way during deliberations fits with Carter’s
holding that the jury shall not infer guilt from the defendant declining to testify.
Next, Hammonds claims that the Ninth Circuit’s decision from United States
v. Castaneda, 94 F.3d 592 (9th Cir. 1996), conflicts with Carter. Pet. 10-12. In that
case, the instruction said, “the defendant is presumed to be innocent and does not
have to testify or present any evidence to prove innocence.” Castaneda, 94 F.3d at
596. While the Ninth Circuit reasoned that the specific words “no inference” would
be “preferable but not required under Carter,” the instruction was still sufficient
because it still instructed the jury that “the defendant’s failure to testify does not
17
lessen the government’s burden to prove its case.” Id. It is true that Castaneda was
later questioned within the Ninth Circuit. United States v. Padilla, 639 F.3d 892, 896
(9th Cir. 2011); United States v. Soto, 519 F.3d 927, 936 (9th Cir. 2008) (Gould, J.,
concurring). However, the Ninth Circuit has never reconsidered Castaneda en banc6
for good reason: It does not conflict with Carter. While the specific words “no
inference” may be preferable, the kind of instruction that was approved in Castaneda
sufficiently addresses the issue.7
Last, Hammonds claims that decisions of the First, Second, and Tenth Circuits
have “come close to joining” the Eleventh and Ninth Circuits. Pet. 15. However, even
if the Eleventh and Ninth Circuit’s decisions conflicted with Griffin and Carter,
Hammonds’s admission that the First, Second, and Tenth Circuits “coming close to
joining” the Ninth and Eleventh Circuits means that the decisions of those courts are
not in conflict with this Court’s precedents.
With so many circuit courts disagreeing with his interpretation of Griffin and
Carter, it seems that Hammonds’s real argument is that this Court should grant
certiorari to extend Griffin and Carter rather than merely enforce them. However, if
this Court were to grant certiorari to consider the scope of Griffin and Carter, the
State observes that many of this Court’s justices have criticized Griffin and Carter as
ahistorical and atextual decisions. See Salinas v. Texas, 570 U.S. 178, 192 (2013)
6 Under the Ninth Circuit’s precedents, only the en banc court may overrule a panel precedent absent
an intervening Supreme Court decision. Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc).
7 Even if this Court disagrees, this case is not a good vehicle for evaluating Castaneda. As explained
in Part I, this Court is being asked to review the decision of the Alabama Supreme Court. It is really
a collateral attack on Hammonds IV, a decision of the Eleventh Circuit, which this Court already
declined to review once.
18
(Thomas, J., joined by Scalia, J., concurring in the result) (“Griffin lacks foundation
in the Constitution’s text, history, or logic”) (citation modified); Carter, 450 U.S. at
305 (Powell, J., concurring ) (joining the majority because “this result is required by
precedent, not by what I think the Constitution should require); id. at 307 (Rehnquist,
J., dissenting) (“The Court reached its conclusion in this case by a series of steps only
the first of which is traceable to the United States Constitution”); Griffin, 380 U.S. at
620-23 (Stewart, J., joined by White, J., dissenting) (arguing that the Court “stretches
the concept of compulsion beyond all reasonable bounds” and warning that “matters
of state policy are not for this Court to decide”). Hammonds’s proposed extension of
the doctrine would depart from the Constitution’s original meaning.
C.
Executing Hammonds Would Not Be a Manifest Injustice or
Fundamentally Unfair.
Next, Hammonds argues that executing him would be a “manifest injustice,”
“arbitrary,” and “fundamentally unfair.” Pet. 18. This is just another way of restating
his prosecutorial-misconduct claim. Hammonds argues that he should not be
sentenced to death simply because the prosecutor was too aggressive at a couple
points in his trial. But as the Eleventh Circuit noted, two things can be true at once:
the prosecutor crossed the line, and the trial court gave the jury sufficient curative
instructions. See Hammonds IV, 712 F. App’x at 852. The remedy then is to hold the
prosecutor accountable while upholding the jury’s verdict, which is exactly what the
Eleventh Circuit did. Id. at 852-58.
Hammonds cites two recent decisions from the Alabama Court of Criminal
Appeals, which of course are not binding on this Court. Pet. 21 (citing Sykes v. State,
19
CR-2022-0546, 2024 WL 1947829 (Ala. Crim. App. May 3, 2024) and Powell v. State,
CR-20-0727, 2024 WL 1947990 (Ala. Crim. App. May 3, 2024)). But as Hammonds
concedes, those decisions are distinguishable because curative instructions were not
given. Pet. 21-22. This indeed does “bring[] us full circle,” Pet. 22, back to the point
that Hammonds presupposes but fails to prove: that his sentence should be vacated
because the prosecutor’s conduct was allegedly so fundamentally unfair that the
Court should not proceed to consider whether he was actually prejudiced.
However, the Eleventh Circuit went on to consider whether Hammonds was
actually prejudiced, and it concluded that he was not. Again, this was for two reasons:
the sufficiency of the curative instructions, and the overwhelming evidence of
Hammonds’s guilt. Hammonds IV, 712 F. App’x at 853. The sufficiency of the trial
court’s instructions has already been discussed extensively above. But if any doubt
remains, remember the evidence of Hammonds’s guilt. His DNA matched the DNA
at the crime scene. His fingerprint was on the phone. He pawned a ring very similar
to Mitchell’s right after the murder. He had delivered furniture the day before,
commenting on Mitchell’s looks. Finally, he was a smoker, and cigarette ash was
found on Mitchell’s body. The Eleventh Circuit was correct: Hammonds has failed to
prove that the few instances of prosecutorial misconduct were sufficient to prejudice
him in light of the overwhelming evidence of his guilt.
D.
There Are No Other Reasons Deserving This Court’s Review.
Finally, Hammonds makes several long-shot arguments for why this Court
should take his case. Pet. 30-39. The State reiterates that these claims are nothing
20
more than an untimely attempt to get this Court to review the underlying decisions
long after the time for seeking certiorari on those cases expired. See Part I, supra.
However, the State will also briefly respond to the claims on the merits.
Hammonds accuses “this Court” of “misapprehend[ing] the efficacy of the trial
judge’s instruction.” Pet. 32. It is truly bizarre to accuse this Court of erring
previously when it never took the case. But this strange argument has a simple
explanation: Hammonds’s entire petition is a copy-and-past job of his petition to the
Alabama Supreme Court, with only some minor alterations. Compare Dkt. 1 with Pet.
Hammonds also disputes the contents of one page of the trial transcript. The
dispute revolves around one word in the jury instructions; one version was more
favorable to Hammonds, and the other was less clear. However, Hammonds won this
issue before the Eleventh Circuit, which went with the version that was more
favorable to him. Hammonds IV, 712 F. Appx. at 846-49. Nevertheless, the Eleventh
Circuit held that the trial court still gave the jury a proper instruction, and the
evidence of Hammonds’s guilt was still overwhelming. See id. at 853. It was correct.
Hammonds also argues that the State lost the tape recording of the trial
proceedings, which would have shown whether he was correct about the one page of
the trial transcript of which he complains. Pet. 31. He further argues that he was
entitled to have this tape played at an evidentiary hearing. Pet. 34. However, this is
a moot point because he won on the transcript issue before the Eleventh Circuit, and
yet he still lost the case. Hammonds IV, 712 F. Appx. at 846-49.
21
Hammonds also claims that, after he was convicted and sentenced, contractors
who were renovating the courthouse might have tampered with some of the evidence
from his case. Pet. 36-37. However, even though these allegations have existed since
2002, see Pet. 37, Hammonds does not allege that he ever raised this issue during any
of the previous proceedings. He also does not explain how he was prejudiced.
Finally, Hammonds claims that these issues should give the Court the kind of
“great pause” that Justice Sotomayor expressed in her statement in Townes v.
Alabama, 586 U.S. 977 (2018) (mem.). Pet. 35-36. In that case, the one-word
difference in that transcript was the difference between a constitutional and an
unconstitutional instruction. Townes, 586 U.S. at 977-78 (statement of Sotomayor, J.)
(noting that one version said the jury “may” infer the defendant’s intent to kill, and
the other saying the jury “must” infer his intent to kill). In this case, applying either
word in the difference in transcripts would have been constitutional. See Hammonds
IV, 712 F. Appx. at 845 (noting that the revised transcript said that “no presumption
of guilt or inference of any kind should be drawn from his failure to testify” but that
the initial version said “innocence” instead of “inference”). Again, the version of the
transcript that the Eleventh Circuit reviewed was the one that was more favorable
to Hammonds, but he still lost because he failed to show prejudice. Finally, even if
this case were as analogous to Townes as Hammonds claims, Justice Sotomayor
agreed with the Court’s decision to deny certiorari because the petitioner failed to
show that “the procedures below amount to constitutional error.” Townes, 586 U.S. at
978 (statement of Sotomayor, J.). In the same way, even if Hammonds is correct about
22
the tape, the transcript, and contractors looking through his file, he has still failed to
demonstrate constitutional error. Hammonds IV, 712 F. Appx. at 846-49, 853.
CONCLUSION
Hammonds’s petition to the Alabama Supreme Court was nothing more than
an untimely collateral attack on previous decisions in his case. The Alabama Supreme
Court correctly denied him relief, and this Court should do the same.
Respectfully submitted,
Steve Marshall
Alabama Attorney General
Edmund G. LaCour Jr.
Alabama Solicitor General
/s/Matthew James Clark
Matthew James Clark
Assistant Attorney General
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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.