Petition for Writ of Certiorari — Aldermanman v. Terry (No. 06-1478)
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061478 MAY 7 - 2007
Supreme Court, U.S.
0) be
No. __OFFICE OF THE CLERK
In the
Supreme Court of the Enited States
JACK E. ALDERMAN,
Petitioner,
7.
HILTON HALL,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Eleventh Circuit
PETITION FOR WRIT OF CERTIORARI
Leiv H. Bian Jr. Tuomas H. Dunn*
Jon R. Fritz GEORGIA RESOURCE CENTER
CiIFFORD Cuance US LLP 303 ELizABETH STREET
2001 K Street, NW ATLanta, GA 30309
WASHINGTON, D.C. 20006 (404) 222-9202
(202) 912-5000
*Counsel of Record
May 7, 2007
Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001
Y
i
CAPITAL CASE
QUESTION PRESENTED
Whether a defendant receives the effective assistance of
counsel guaranteed by the Sixth Amendment where a failure to
understand relevant law leads counsel to limit his investigation
of mitigating evidence and to omit a mitigation argument from
the resentencing phase of a capital trial.
**
TABLE OF CONTENTS |
COLFEDS LINAS PUMEIEICUEIED 6 occ ccovesersnseecussuwn i
Pi, tg ee > errr re ot ii
pe bee ee 8 er rer vil
PETITION FOR A WRIT OF CERTIORARI ........... l
SP PT Ve xk c ed ecen tins cans eanveuNenes I
STATEMENT OF JURISDICTION ........-.2ccceces 2
CONSTITUTIONAL AND STATUTORY
a rE esr ar ee en ir rere es 2
SEA TEerTE GP TER CASE ow. ccc ccc cee wevence 3
eg, OE ee rere rrr Eye 3
ee eer rrr ee 5
eS ib 5 ives hc cer ser bree vien 7
REASONS FOR GRANTING THE PETITION ....... 1-9
I. COUNSEL'S INVESTIGATION WAS
UNREASONABLE BECAUSE IT WAS LIMITED
TO A NARROW SET OF SOURCES AND
COUNSEL MADE NO ATTEMPT TO GATHER
ETE SEAS Ee Oe VRIES 8 ons vk vce ee tec vowees 10
ill
A. Counsel Unreasonably Limited The Scope Of His
Investigation To Information About Mr.
Alderman’s Good Character ........60ceceese 11
1. Counsel Had An Obligation To Look Beyond
A Narrow Set Of Sources ................. 12
a ai a a So 13
B. Counsel Made No Reasoned Strategic Or Tactical
Decision To Limit His Investigation; Instead, He
Did Not Understand That Relevant Law
Permitted Him To Go Beyond Character
Evidence To Gather And Present Mitigating
Evidence Of Mr. Alderman’s Life-History ...... 15
C. The State Court’s Decision Was Objectively
Unreasonable Because The Court Did Not Assess
Directly Whether Counsel’s Limited
Investigation Was Based On A Reasoned
Strategic Or Tactical Decision ................ 16
D. The Eleventh Circuit Merely Accepted The
Reasoning Of The State Court And Failed To
Apply Strickland As Directed By This Court .... 20
. COUNSEL UNREASONABLY OMITTED A
MITIGATION ARGUMENT FROM THE
RESENTENCING PHASE OF A CAPITAL TRIAL . 22
iV
Il. THERE IS A REASONABLE PROBABILITY
THAT, BUT FOR COUNSEL’S
UNPROFESSIONAL ERRORS, MR.
ALDERMAN’S RESENTENCING TRIAL JURY
WOULD HAVE RETURNED A LIFE SENTENCE . 24
A. Counsel’s Omitting A Mitigation Argument
Prejudiced Mr. Alderman ...........-cses0e0. 25
B. Counsel’s Limited Investigation And Presentation
Of Readily Available Life-History Evidence
TOOMICOE PAT. AROOETNON 6 oc ccc wc cela cs 25
oe 8 SEG ear er EA ee Sere pecan remem se pe 30
APPENDIX
Appendix A: Order of the U.S. Court of Appeals for
the Eleventh Circuit, dated December 8, 2006 ...... la
Appendix B: Opinion of the U.S. Court of Appeals
for the Eleventh Circuit, dated October 30, 2006 .... 3a
Appendix C: Order of the U.S. Court of Appeals for
the Eleventh Circuit, dated June 27, 2005 ......... 35a
Appendix D: Order of the U.S. Court of Appeals for
the Eleventh Circuit, dated November 15, 2004 .... 37a
Appendix E: Order of the U.S. District Court for
the Southern District of Georgia, dated October 1,
564 oe 064d EERE CL Le 39a
Vv
Appendix F: Order of the U.S. District Court for the
Southern District of Georgia, dated August 3, 2004 . 4la
Appendix G: Opinion of the U.S. District Court for
the Southern District of Georgia, dated July 16,
EN OAT Siar 9 Rec noe oy SES 43a
Appendix H: Opinion of the Supreme Court of
Georgia, dated January 10,2002 ................ 69a
Appendix [: Opinion of the Superior Court of Butts
County, dated December 29, 1999 ............... 73a
Appendix J: Letter from William K. Suter, Clerk of
the Supreme Court of the United States, granting
extension of time to file petition for writ of certiorari,
es yO NEE 2 6S coke be bl Ness nweee 118a
Appendix K: U.S. Const. 6th Amendment; U.S.
Pe err rece ee 120a
Appendix L: Excerpts of sections from Title 28 of
Se NE CUO re ov ace SiS eee e Seas 122a
Appendix M: Excerpts of Volume I of 1984
Resentencing Trial Transcript, dated March 26,
DU RS iGs Shed ies o4 er eu Gee penne ee 123a
Appendix N: Excerpts of Volume IV of 1984
Resentencing Trial Transcript, dated March 26,
PEE Oe aid ca Cece eae EOS EVE TANT eee eee eS 125a
Appendix O: Excerpts of Volume V of 1984
Resentencing Trial Transcript, dated March 30,
i oo Rien eed ya os rene ee eT eA 137a
v1
Appendix P: Excerpts of Volume VI of 1984
Resentencing Trial Transcript, dated March 31,
SG aiid Geeks 560 bE ES 173a
Appendix Q: Excerpts of Volume I of 1999 Habeas
Proceeding Transcript, dated May 5, 1999 ....... 202a
Appendix R: Affidavit of Jack L. Alderman, dated
NE es SO sini ded eb ee hetercs rane bee 26la
Appendix S: Affidavit of Catherine Thompson, dated
RO EEE bo eG pd e8S eA Oe eR EDERAL OSS 268a
Appendix T: Affidavit of Teresa R. Callaway, dated
BO SE 64 ew easn seston ban eeee 272a
Appendix U: Excerpt of Jack Alderman's medical
records from the Memorial Medical Center and
Memorial Hospital of Chatham County .......... 276a
Appendix V: Excerpts of Jack Alderman's
educational records from the Georgia Department of
Education and Georgia Academy for the Blind .... 287a
Vil
TABLE OF AUTHORITIES
CASES
Alderman v. Austin,
663 F.2d 558 (Sth Cir. Unit B Dec. 1981) ........... 3
Alderman v. Austin,
695 F.2d 124 (Sth Cir. Unit B 1982) ............... 3
Alderman v. Head, 559 S.E.2d 72 (Ga. 2002) ......... 1,4
Alderman v. Schofield, No. CV403-028,
2004 U.S. Dist. LEXIS 30125
Cae ee Se PU Eo cca chen hired a enes 1,4
Alderman v. State, 246 S.E.2d 642 (Ga. 1978) ....... ee
Alderman vy. State, 327 S.E.2d 168 (Ga. 1985) .......... 3
Alderman vy. Terry,
468. F.36 775 (1 3th Cir, 2006) 2. oe eee less passim
Alderman v. Zant, 22 F.3d 1541 (11th Cir. 1994) ........ 3
Armstrong v. Dugger,
Boe Fae Pe CECH, SFB) oe ons es cect eee ten 15
Burger v. Kemp, 483 U.S. 776 (1987) ................ 13
California v. Brown, 479 U.S. 538 (1987) ............. 25
Chandler v. United States,
218 F.3d 1305 (11th Cir. 2000) ............... 19, 22
Vili
Collier v. Turpin, 177 F.3d 1184 (11th Cir. 1999) ... 21,30
Conklin v. Schofield, 366 F.3d 1191 (11th Cir. 2004) .... 22
Darden v. Wainwright, 477 U.S. 168 (1986) ........... 13
Eddings v. Oklahoma, 455 U.S. 104 (1982) ........ 15, 23
Foster v. Strickland, 707 F.2d 1339 (11th Cir. 1983) .... 15
Harich v. Dugger, 844 F.2d 1464 (11th Cir. 1988) ... 20, 21
Horton v. Zant, 941 F.2d 1449 (11th Cir. 1991) ........ 17
Lockett v. Ohio, 438 U.S. 586 (1978) .......... 10, 21, 22
Miller v. Wainwright,
798 F.2d 426 (11th Cir. 1986), vacated on other grounds,
ive vee va banvreeees 15, 23
Rompilla v. Beard, 545 U.S. 374 (2005) .............. 17
Simmons v. South Carolina, 512 U.S. 154 (1994) .... 15, 23
Skipper v. South Carolina, 476 U.S. 1 (1986) ....... $5.23
Smith v. Stewart, 189 F.3d 1004 (9th Cir. 1999) ........ 17
Spivey v. State, 246 S.E.2d 288 (Ga. 1978) ............ 23
Strickland v. Washington, 466 U.S. 668 (1984) ..... passim
Waters v. Thomas, 46 F.3d 1506 (11th Cir. 1995) ....... 22
Wiggins v. Smith, 539 U.S. 510 (2003) ........... passim
IX
Williams v. Taylor, 529 U.S. 362 (2000) .......... passim
Woodson v. North Carolina, 428 U.S. 280 (1976) 21, 22, 23
FEDERAL STATUTES
- lk 8 a Ee fT ee er err ert rm raneairr TO 2
ee EE Nw 65d aN DREN NERO OE OR 2, 3, 16, 20
8 Re ef, Seer eres eT PoE TET Ee EC er Ce 2
eg Seen eT ELIE C TEER Ee errr 2
OTHER
ABA Guidelines for the Appointment and Performance of
Counsel in Death Penalty Cases 11.8.6 (1989) ......... 13
ABA Guidelines for the Criminal Justice 4-4.1 (2d ed.
DE oc hie bos pe hina oe ese ee aes 14
WIE Sik kad hie en A ee ARES 13
Craig M. Cooley, Mapping the Monster's Mental Health and
Social History: Why Capital Defense Attorneys and Public
Defender Death Penalty Units Require the Services of
Mitigation Specialists, 30 OKLA. CITY U. L. REV. 23, 43-48
IRS iam PIP ae repel eyes ge Frege ME Be He oepn NE Ces 15
l
PETITION FOR A WRIT OF CERTIORARI
Jack E. Alderman respectfully petitions for a writ of
certiorari to review the judgment of the United States Court of
Appeals for the Eleventh Circuit in this case.
OPINIONS BELOW
The Eleventh Circuit’s denial of panel rehearing is
Alderman v. Terry, No. 04-14595-P (11th Cir. Dec. 8, 2006).
The Eleventh Circuit panel decision is Alderman v. Terry, 468
F.3d 775 (11th Cir. 2006). The Eleventh Circuit’s granting of
appealability is Alderman v. Terry, No. 04-14595-P (11th Cir.
Jun. 27, 2005). The Eleventh Circuit’s denial of appealability
is Alderman v. Schofield, No. 04-14595-P (11th Cir. Nov. 15,
2004). The District Court’s denial of appealability is Alderman
v. Schofield, No. CV403-028 (S.D. Ga. Oct. 1, 2004). The
District Court’s denial of alteration and amendment is
Alderman v. Schofield, No. CV403-028 (S.D. Ga. Aug. 3,
2004). The District Court decision denying Mr. Alderman
relief is Alderman v. Schofield, No. CV403-028, 2004 U.S.
Dist. LEXIS 30125 (S.D. Ga. July 16, 2004). Because this is
a habeas corpus action by a prisoner in state custody, Petitioner
has appended the post-conviction opinions of the Georgia
Supreme Court, Alderman v. Head, 559 S.E.2d 72 (Ga. 2002),
and the Superior Court of Butts County, Alderman v. Head,
No. 94-V-720 (Ga. Super. Ct. Butts County Dec. 29, 1999).
The above court decisions have been reprinted at pages la to
117a of the accompanying appendix (“App.”). In addition,
relevant parts of the transcripts, including exhibits thereto, of
the state habeas evidentiary hearing conducted in the Superior
Court of Butts County (May 5-6, 1999), and the resentencing
2
hearing conducted in the Superior Court of Chatham County
(Mar. 26-31, 1984), are reprinted at App. 123a to 301a.
+
STATEMENT OF JURISDICTION
This Court has jurisdiction under 28 U.S.C. § 1254(1). This
Court granted Petitioner an extension of time until May 7, 2007
in which to file this petition for a writ of certiorari. App. | 18a.
This petition is timely filed.
CONSTITUTIONAL AND STATUTORY PROVISIONS
The Sixth Amendment to the United States Constitution
provides in relevant part: “In all criminal prosecutions, the
accused shall . . . have the Assistance of Counsel for his
defence.” App. 120a.
The Fourteenth Amendment to the United States
Constitution provides in relevant part: ““No State shall . . .
deprive any person of life, liberty, or property, without due
process of law.” App. 120a.
28 U.S.C. § 2254(d) provides in relevant part:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless the
adjudication of the claim —
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
3
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding. App.
122a.
STATEMENT OF THE CASE
A. Procedural History
On June 15, 1975, Mr. Alderman was .convicted of
murdering his wife and then sentenced to death in the Superior
Court of Chatham County. On direct appeal, the Georgia
Supreme Court affirmed his conviction and sentence.
Alderman v. State, 246 S.E.2d 642 (Ga. 1978). Mr. Alderman
sought state and federal post-conviction relief and ultimately
was granted a new sentencing trial on January 10, 1983.
Alderman v. Austin, 663 F.2d 558 (Sth Cir. Unit B Dec. 1981);
Alderman v. Austin, 695 F.2d 124 (Sth Cir. Unit B Jan. 1983)
(en banc).
Mr. Alderman was resentenced to death on April 1, 1984 in
the Superior Court of Chatham County. The Georgia Supreme
Court affirmed the death sentence. Alderman v. State, 327
S.E.2d 168 (Ga. 1985). Represented by resentencing counsel
(counsel whose effictiveness is being. challenged), Mr.
Alderman sought habeas relief in state and federal court. The
Eleventh Circuit upheld the denial of habeas relief. Alderman
v. Zant, 22 F.3d 1541 (11th Cir. 1994).
In 1994, represented by new counscl, Mr. Alderman again
sought habeas relief in the Superior Court of Butts County
alleging for the first time ineffective assistance of counsel at
4
his resentencing trial and on direct appeal. Following an
evidentiary hearing and submission of post-hearing briefs, the
state court denied habeas relief on December 29, 1999.
Alderman v. Head, No. 94-V-720 (Ga. Super. Ct. Butts County
Dec. 29, 1999). App. 73a. The Georgia Supreme Court denied
Mr. Alderman a Certificate of Probable Cause to Appeal on
January 10, 2002, Alderman v. Head, 559 S.E.2d 72 (Ga.
2002), and then denied his Motion for Reconsideration on
February 11, 2002, Jd. App. 69a.
In February 2003, Mr. Alderman sought federal habeas
review on his ineffective assistance of counsel claims. On July
16, 2004, the District Court denied all relief. Alderman, 2004
U.S. Dist. LEXIS 30125, at *41. App. 43a. The District Court
then denied Mr. Alderman’s timely filed Motion to Alter and
Amend on August 3, 2004. Alderman v. Schofield, No.
CV403-028 (Ga. Aug. 3, 2004). App. 41a. The District Court
denied Mr. Alderman a Certificate of Appealability on October
1, 2004. Alderman v. Schofield, No. CV403-028 (Ga. Oct. 1,
2004). App. 39a.
On November 15, 2004, the Eleventh Circuit denied Mr.
Alderman a Certificate of Appealability. Alderman v.
Schofield, No. 04-14595-P (11th Cir. Nov. 15, 2004). App.
37a. On June 27, 2005, the Eleventh Circuit granted Mr.
Alderman’s Motion for Reconsideration and granted a
Certificate of Appealability as to one issue: ‘““Whether appellant
was denied the effective assistance of counse! at the
resentencing on the ground that counsel failed adequately to
investigate, and present to the jury, appellant’s social-history
background.” Alderman v. Terry, No. 04-14595-P (11th Cir.
Jun. 27, 2005). App. 35a. On October 30, 2006, the Eleventh
Circuit affirmed the District Court’s denial of Mr. Alderman’s
requested relief. Alderman v. Terry, 468 F.3d 775 (11th Cir.
2006). App. 3a. Mr. Alderman sought panel rehearing, which
5
was denied on December 8, 2006. Alderman y. Terry, No. 04-
14595-P (11th Cir. Dec. 8, 2006). App. la.
B. 1984 Resentencing Trial
The State of Georgia sought the death penalty at Mr.
Alderman’s 1984 resentencing trial (“RST”). App. 197a. The
State asserted that the motive and manner in which Mr.
Alderman murdered his wife constituted two aggravating
circumstances, each of which independently warranted the
death penalty: he (1) murdered his wife to obtain insurance
money and (2) committed the murder in an “outrageously vile”
or “inhuman” way. App. 199a-200a.
Terry Jackson and Michael Schiavone represented Mr.
Alderman at the RST. App. 174a. Although another jury had
already convicted Mr. Alderman of murder on June 15, 1975,
lead counsel Jackson’s strategy was to pursue a residual doubt
defense: the jury should not sentence Mr. Alderman to death
if they were not sure beyond a reasonable doubt that he
committed the murder. App. 241a. Thus, counsel focused Mr.
Alderman’ s defense on attacking the underlying conviction and
discrediting the State’s principal witness — Mr. Alderman’s co-
defendant, John Brown. App. 178a-93a; 242a-45Sa.
Counsel offered direct evidence and the testimony of
character witnesses as indirect evidence of Mr. Alderman’s
innocence. App. 226a-27a. All of the defense’s character
witnesses testified that Mr. Alderman was not the type of
person who would commit murder. Counsel called a number
of corrections officers, friends, and co-workers, all of whom
6
testified to Mr. Alderman’s good character.’ App. 126a-36a;
139a-65a; 168a-72a. Mr. Alderman’s father testified that his
son had overcome significant hardship as a boy, including his
mother’s abandonment and a terrible eye injury.2, App. 165a-
68a. Mr. Alderman told the jury that his father’s testimony
established his good character as opposed to Brown’s highly
suspect character. App. 174a. Jackson argued that all of this
testimony established reasonable doubt of Mr. Alderman’s
guilt. App. 174a-97a.
Counsel did not present these character witnesses’
testimony as mitigation evidence. When asked by habeas
counsel why he failed to ask these witnesses whether the jury
should show Mr. Alderman mercy, Jackson responded: “I had
no such reason.” App. 229a-30a. Indeed, Jackson never asked
the jury to show Mr. Alderman mercy based on the character
evidence. App. 174a-97a. Instead, Jackson argued that the
jury should re-evaluate the finding of guilt: “[w]Je’ve shown
you Jack Alderman was a good person at the time and that he
had a good relationship with his wife at the time and think you
doubt . . . John Brown’s story.” App. 194a. He told the jury
that to sentence Mr. Alderman to death, “{yJou’ve got to
believe John Brown beyond a reasonable doubt... . Go back
there and give that man the death penalty and you’re going to
.... wonder, was John Brown lying? You’ve got to have a
doubt.” App. 194a.
' The corrections officers also testified that Mr. Alderman was
obedient and well-behaved, and Mr. Alderman’s friends and co-
workers also testified that he was dependable, reliable, and active in
church. App. 126a-36a; 139a-65a; 168a-72a.
? Dr. Smith, a psychiatrist who examined Mr. Alderman following
his indictment and testified at the 1975 tnal, consistently recounted
the details of Alderman’s eye injury. App. 138a.
7
Having heard no mitigation argument based on this
evidence, the jury was instructed to consider mitigating
circumstances in determining the appropriate punishment.
App. 198a. The judge defined mitigating circumstances as
those that “in fairness and mercy may be considered as
extenuating or reducing the degree of moral culpability so as to
justify a sentence of life imprisonment rather than a sentence
of death.” App. 198a. The judge explained that “[rJegardless
of the presence or absence of aggravating circumstances, the
jury has both the right and the authority to recommend mercy,
which would require the Judge to impose a sentence of
imprisonment for life.” App. 198a.
C. 1999 Habeas Proceedings
Jackson testified at the habeas proceedings that the defense
called Mr. Alderman’s friends and co-workers to establish his
truthfulness and the corrections officers to establish his good
conduct in prison. App. 247a. Counsel thought that evidence
of Mr. Alderman’s good conduct might influence the jury to
believe Mr. Alderman could not have committed the murder.
App. 258a. Jackson admitted that he did not present any
evidence at the RST outside the confines of his residual doubt
theory. App. 226a-27a; 241la-42a; 247a-48a. Schiavone
testified that counsel had no tactical or strategic reason not to
go beyond this character evidence into the details of Mr.
Alderman’s life-history; rather, counsel thought that this
character evidence “was the extent that [they] could go into at
the time.” App. 255a-56a.
As lead counsel, Jackson focused on locating and preparing
witnesses who could testify directly to Mr. Alderman’s
innocence. App. 213a; 240a-41a. He delegated to Schiavone
responsibility for locating and preparing the character
witnesses who could offer indirect proof that Mr. Alderman
8
was not the type of person who could have murdered his wife.
App. 250a-5la. Aware that Jackson was committed to a
residual doubt defense, Schiavone directed the team’s only two
investigators to “go out to get character evidence in support of
that [defense] ....” App. 252a. Schiavone did not direct the
investigators to find any evidence that would support a
mitigation argument. App. 251a-52a.
Jackson admitted that counsel failed to interview key
witnesses, such as Mr. Alderman’s sister, first wife, and
teachers, who could have offered broader life-history evidence.
App. 229a; 230a; 233a-35a. Jackson admitted that he did not
have a tactical or strategic reason for not contacting those
witnesses. App. 229a; 233a. After reviewing descriptive
narratives of Mr. Alderman’s life experiences as told by his
father, sister, first wife, high school teacher, and two members
of the clergy, Jackson also testified that he did not have any
tactical or strategic reason for not presenting this evidence at
the RST. App. 227a-28a; 254a-S6a.
Jackson also admitted that counsel] failed to collect relevant
life-history records. Counsel did not gather Mr. Alderman’s
medical records pertaining to his eye injury and temporary
blindness or his school records from the Georgia Academy for
the Blind and Savannah High. App. 233a-38a. Jackson
admitted that he did not have a tactical or strategic reason for
not collecting and presenting these records at the RST. App.
238a.
Had counsel collected and presented this substantial life-
history evidence, he could have made a compelling argument
based on the emotional damage Mr. Alderman suffered as a
result of his mother’s abandonment and his difficult
relationship with his absentee father. App. 272a-75a. Counsel
could have told the jury of the hardships Mr. Alderman
9
endured as the result of his eye injury and temporary blindness.
App. 261a-66a; 268a-70a; App. 276a-86a. Counsel could
have shown the jury Mr. Alderman’s educational records that
revealed the traumatic psychological impact these life
experiences had on him — he failed to develop a normal self
concept and proper control of his instinctive impulses. App.
287a-301a.
Counsel then could have contrasted Mr. Alderman’s bleak
upbringing with proof of Mr. Alderman’s rehabilitation while
in prison. The uncontested evidence demonstrated that Mr.
Alderman developed discipline, underwent a_ spiritual
conversion, and had a positive impact on prison staff and on
other prisoners, who regarded him as a mentor. App. 142a-
46a; 147a-S58a; App. 209a-12a; 214a-25a. Jackson testified
that none of this life-history evidence was inconsistent with his
residual doubt theory. App. 235a-38a; 240a. Schiavone
admitted that the only reason they failed to pursue and offer
this evidence was their erroneous belief that they could not
present life-history evidence through character witnesses;
rather, counsel believed that those witnesses could testify only
to Mr. Alderman’s truthfulness and good conduct. App. 254a-
56a.
REASONS FOR GRANTING THE PETITION
The state court’s conclusion that Mr. Alderman’s counsel
was not ineffective conflicts with this Court’s decisions. This
Court has enforced a constitutional duty to perform a
reasonable investigation to identify relevant mitigating
evidence and to make a reasoned strategic judgment regarding
use of that evidence at a sentencing trial. See Wiggins v. Smith,
539 U.S. 510, 533-35 (2003). Counsel here failed to do either.
The Eleventh Circuit therefore misapplied the relevant law in
upholding the state court’s decision. Further, the Eleventh
10
Circuit’s conclusion that counsel’s errors were not so serious
as to deprive Mr. Alderman of a fair trial, Alderman, 468 F.3d
at 795, conflicts with this Court’s admonition that sentencing
juries must give meaningful consideration and effect to all
mitigating evidence that might provide a basis for refusing to
impose the death penalty. See, e.g., Lockett v. Ohio, 438 U.S.
586, 604 (1978) (plurality opinion).
I. COUNSEL’S INVESTIGATION WAS
UNREASONABLE BECAUSE IT WAS LIMITED
TO A NARROW SET OF SOURCES AND
COUNSEL MADE NO ATTEMPT TO GATHER
MITIGATING EVIDENCE
Strickland v. Washington, 466 U.S. 668 (1984) established
the guiding principles the lower courts must apply in
evaluating the effectiveness of counsel. An _ ineffective
assistance of counsel claim has two components: petitioner
must show that counsel’s performance was deficient and that
the deficiency prejudiced the defendant. J/d. at 687. To
establish deficient performance, a petitioner must demonstrate
that counsel’s representation “fell below an objective standard
of reasonableness:”
[CJounsel has a duty to make reasonable investigations
or to make a reasonable decision that makes particular
investigations unnecessary. In any ineffectiveness
case, a particular decision not to investigate must be
directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference
to counsel’s judgments.
Wiggins, 539 U.S. at 521-22 (quoting Strickland, 466 U.S. at
688, 690-91). This Court has emphasized that “(t]he proper
measure of attorney performance remains reasonableness under
1]
prevailing professional norms.” /d. at 521 (internal quotations
omitted).
Counsel’s performance fell below an objective standard of
reasonableness for two reasons. First, his investigation was
limited to a narrow set of sources, which violated prevailing
professional norms on which this Court has relied in Sixth
Amendment cases. Second, counsel limited his investigation
only because he misunderstood the applicable law. The courts
below misapplied Strickland to these facts, and improperly
held that counsel’s deficient performance did not violate Mr.
Alderman’s Sixth Amendment rights.
A. Counsel Unreasonably Limited The Scope Of His
Investigation To Information About Mr. Alderman’s
Good Character
In assessing the reasonableness of counsel’s investigation,
a court must consider not only the quantum of evidence known
to counsel, but also whether that evidence would lead a
reasonable attorney to investigate further. Wiggins, 539 U.S.
at 527. Here, counsel knew he had obtained no more than a
rudimentary knowledge of Mr. Alderman’s life-history from
the character witnesses, and the evidence he did gather was
more than sufficient to lead a reasonable attorney to investigate
further. Moreover, counsel admittedly did not attempt to
gather more information about Mr. Alderman’s life-history, not
because he strategically concluded that this information would
not be helpful, but because he did not know that he could go
beyond character evidence and gather and present mitigating
evidence of Mr. Alderman’s life-history. App. 254a-S6a.
12
1. Counsel Had An Obligation To Look Beyond A
Narrow Set Of Sources
This case is not materially different from Wiggins. Counsel
there investigated Wiggins’ background by obtaining only his
social service records and a Pre-Sentence Investigation report,
which included a brief account of his “personal history.”
Wiggins, 539 U.S. at 523. The Court held that this
investigation was unreasonable because it developed only a
“rudimentary knowledge of [the defendant’s] history from a
narrow set of sources.” Jd. at 524. The Court held that
effective counsel would have gathered much more background
information, such as that described in a post-conviction social
history report, which used “social services, medical, and school
records, as well as interviews with [the defendant] and
numerous family members” to “chronicle[]} [the defendant’s]
bleak life history.” Jd. at 516.
Counsel here obtained only a rudimentary knowledge of
Mr. Alderman’s life-history; indeed, counsel made no attempt
to discover much, if anything, about it. Rather, counsel
investigated only a narrow set of sources for an extraordinarily
limited purpose: to testify to Mr. Alderman’s good character
in support of a residual doubt defense. Counsel did not attempt
to gather “social services, medical, and school records,” and
showed no interest in learning of Mr. Alderman’s “bleak life
history.” Cf id. This was particularly unreasonable because
counsel easily could have obtained mitigating evidence of Mr.
Alderman’s life-history from dozens of readily available
sources, including Mr. Alderman’s family and friends.
Schiavone’s only explanation was that counsel “just probably
didn’t ask them.” App. 255a. Jackson admitted that their
failure to contact Mr. Alderman’s sister, first wife, or any of
Mr. Alderman’s teachers was not based on any tactical or
strategic decision. App. 229a; 233a.
13
Counsel had no legitimate reason to conduct such a
truncated investigation. There was no evidence suggesting that
“a mitigation case, in its own right, would have been
counterproductive, or that further investigation would have
been fruitless[.]” Wiggins, 539 U.S. at 525. As in Wiggins,
“this case is therefore distinguishable from [Supreme Court]
precedents in which [this Court has] found limited
investigations into mitigating evidence to be reasonable.” /d.;
see, ¢.g., Burger v. Kemp, 483 U.S. 776, 794 (1987)
(concluding counsel’s limited investigation was reasonable
because he interviewed all witnesses brought to his attention,
discovering little that was helpful and much that was harmful);
Darden v. Wainwright, 477 U.S. 168, 186 (1986) (concluding
that counsel engaged in extensive preparation and the decision
to present a mitigation case would have resulted in the jury
hearing evidence that petitioner had been convicted of violent
crimes and spent much of his life in jail).
2. Counsel Ignored Prevailing Professional Norms
Counsel’s limited investigation did not satisfy prevailing
professional norms. The ABA Guidelines for the Appointment
and Performance of Counsel in Death Penalty Cases provide
that counsel should investigate a capital defendant’s
background for “all reasonably available mitigating evidence,”
including evidence of his “medical history, educational history,
employment and training history, family and social history...
and religious and cultural influences.” Wiggins, 539 U.S. at
524 (citing ABA Guidelines for the Appointment and
Performance of Counsel in Death Penalty Cases 11.8.6, p.113
(1989)) (emphasis in original).’ This Court has held that
3 See also 1 ABA Standards for Criminal Justice 4-4.1, commentary,
p. 4-55 (2d ed. 1982).
14
counsel who did not adhere to these prevailing professional
norms violated a defendant’s Sixth Amendment rights:
Our opinion in Williams v. Taylor is illustrative of the
proper application of these standards. In finding
Williams’ ineffectiveness claim meritorious, we
applied Strickland and concluded that counsel’s failure
to uncover and present voluminous mitigating evidence
at sentencing could not be justified as a tactical
decision to focus on Williams’ voluntary confessions,
because counsel had not “fulfill[ed] their obligation to
conduct a thorough investigation of the defendant’s
background.” 529 U.S. at 396 (citing ABA Standards
for Criminal Justice 4.4.1, commentary, p. 4-55 (2d ed.
1980)). . . . In highlighting counsel’s duty to
investigate, and in referring to the ABA Standards for
Criminal Justice as guides, we applied the same
“clearly established” precedent of Strickland we apply
today.
Wiggins, 539 U.S. at 522 (quoting Williams v. Taylor, 529 US.
362, 396 (2000).
Counsel admitted that he made no attempt to find the
evidence set forth in the ABA Guidelines. App. 227a-29a;
238a; 265a. Yet evidence of Mr. Alderman’s medical history,
educational history, employment and training history, family
and social history, and religious and cultural influences was
readily available to counsel, just as it was in Wiggins. That all
of this evidence was introduced at the habeas proceedings
shows that counsel only had to conduct a _ reasonable
investigation to find it. This case therefore is indistinguishable
from Wiggins. Here, as there, counsel’s failure to pursue this
evidence violated the prevailing professional norms on which
this Court has relied in evaluating effectiveness of counsel.
15
B. Counsel Made No Reasoned Strategic Or Tactical
Decision To Limit His Investigation; Instead, He Did
Not Understand That Relevant Law Permitted Him
To Go Beyond Character Evidence To Gather And
Present Mitigating Evidence Of Mr. Alderman’s Life-
History
Counsel arbitrarily limited his investigation because he
misunderstood applicable law. This misunderstanding
prevented counsel from “conduct[ing] the requisite, diligent
investigation into his client’s [] background and unique
personal circumstances[.]” Williams, 529 U.S. at 415.
(O’Connor, J. concurring). While a wide variety of
information may constitute mitigating evidence,’ including
family history,’ favorable prospects. for rehabilitation,®
poverty,’ cooperation with authorities,* character,’ and good
behavior while awaiting trial,'° counsel mistakenly thought that
* See generally Craig M. Cooley, Mapping the Monster's Mental
Health and Social History: Why Capital Defense Attorneys and
Public Defender Death Penalty Units Require the Services of
Mitigation Specialists, 30 OKLA. CITY U. L. REV. 23, 43-48
(2005).
> Eddings v. Oklahoma, 455 U.S. 104, 113 (1982).
® Miller v. Wainwright, 798 F.2d 426, 430-31 (11th Cir. 1986),
vacated on other grounds, 480 U.S. 901 (1987).
” Armstrong v. Dugger, 833 F.2d 1430, 1433 (11th Cir. 1987).
8 Foster v. Strickland, 707 F.2d 1339, 1347 (11th Cir. 1983).
% Simmons v. South Carolina, 512 U.S. 154, 163 (1994).
'0 Skipper v. South Carolina, 476 U.S. 1, 4-5 (1986).
16
he was limited to gathering and presenting evidence of Mr.
Alderman’s good character. App. 254a-S6a.
Counsel admitted that their failure to go beyond character
evidence was not based on a tactical or strategic decision.
Asked to explain his tactical or strategic reasons for not
eliciting details of Mr. Alderman’s life-history, Schiavone
responded: “No tactical or strategic reason I can think of, . . . .
I mean I - I’m thinking the character evidence - we probably
were thinking that that was the extent that we could go into at
that time.” App. 254a-56a. Jackson also admitted that he had
no tactical or strategic reason not to ask these witnesses about
Mr. Alderman’s life experiences. App. 227a-29a.
C. The State Court’s Decision Was Objectively
Unreasonable Because The Court Did Not Assess
Directly Whether Counsel’s Limited Investigation
Was Based On A Reasoned Strategic Or Tactical
Decision
28 U.S.C. § 2254(d) states that an unreasonable application
of this Court’s precedent occurs when a state court “‘identifies
the correct governing legal principle from this Court’s
decisions but unreasonably applies that principle to the facts’
of petitioner’s case.” Wiggins, 539 U.S. at 510 (quoting
Williams, 529 U.S. at 413). That is, “the state court’s decision
must have been [not only] incorrect or erroneous [but]
objectively unreasonable.” Id. at 520-21.
The state court’s application of Strickland was objectively
unreasonable for several reasons.
First, the state court erroneously found that counsel
conducted a thorough investigation of Mr. Alderman’s
background merely because he hired two investigators who
17
questioned a number of fact and character witnesses.
Alderman v. Head, No. 94-V-720 at 25 (Ga. Super. Ct. Butts
County Dec. 29, 1999). App. 107a-08a. The court failed to
consider that the scope of counsel’s investigation was limited
to character evidence in support of a residual doubt theory and
ignored readily available mitigating evidence of Mr.
Alderman’s life-history. See Rompilla v. Beard, 545 U.S. 374,
379, 388-89 (2005) (counsel’s efforts to find mitigating
evidence by interviewing the defendant, several family
members, and consulting with three mental health experts did
not excuse them from pursuing an obvious investigative area).
The court failed to consider counsel’s admissions that their
failure to go beyond character evidence supporting a residual
doubt defense was not based on a reasoned tactical or strategic
decision, but rather a misunderstanding of applicable law. A
strategy premised on a misunderstanding of applicable law
cannot be a reasoned tactical or strategic decision under
Wiggins, 539 U.S. at 533. See Horton v. Zant, 941 F.2d 1449,
1462 (11th Cir. 1991) (counsel’s failure to do any investigation
because of the mistaken notion that mitigating evidence was
inappropriate indisputably fell below reasonable professional
norms; counsel began to follow one path, based upon a
misinterpretation of the law, without ever evaluating the merits
of alternative paths); Smith v. Stewart, 189 F.3d 1004, 1010
(9th Cir. 1999) (counsel’s decision not to pursue mitigating
evidence was not “strategic” where it was based on a lack of
understanding of what constituted mitigating evidence).
Second, the state court found that “trial counsel presented
substantial evidence in mitigation.” Alderman v. Head, No. 94-
V-720 at 25 (Ga. Super. Ct. Butts County Dec. 29, 1999)
(emphasis added). App. 108a. To the contrary, counsel
offered no mitigation defense at the RST. App. 174a-97a. The
court ignored the fact that counsel offered character evidence
only for the purpose of establishing residual doubt of Mr.
18
Alderman’s guilt. The court’s own words contradict its
eroneous finding that substantial evidence was presented in
mitigation:
Mr. Jackson’s adopted trial strategy was one of
establishing residual doubt — that even though
Alderman had already been found guilty, he argued the
jury should not return a death sentence because there
was still some residual doubt as to Alderman’s
culpability and involvement in the crime. (H.T. 100,
224). In furtherance of this trial strategy, in addition to
directly attacking the state’s case, Mr. Jackson
preserited witnesses to show that Alderman was not
violent, and that he was well respected and trusted in
the community and therefore would not have
committed this type of crime. (H.T. 149, 224-225). To
that end, many people were contacted and considered
as potential witnesses. Mr. Jackson also contacted
many prison guards who could testify about
Alderman’s non-violent attitude while incarcerated.
Alderman v. Head, No. 94-V-720 at 19 (Ga. Super. Ct. Butts
County Dec. 29, 1999) (emphasis added). App. 99a-100a.
Thus, in the court’s own words, Jackson contacted potential
witnesses only in support of his residual doubt defense.
Third, the state court erroneously concluded that Jackson’s
residual doubt defense was reasonable because a “mercy”
Strategy would have been incompatible with the evidence
presented in support of residual doubt. Alderman v. Head, No.
94-V-720 at 23 (Ga. Super. Ct. Butts County Dec. 29, 1999).
App. 105a. This conclusion directly conflicts with this Court’s
conclusion in Wiggins that mitigation and residual doubt are
not mutually exclusive sentencing strategies. 539 U.S. at 535;
19
see also Chandler v. United States, 218 F.3d 1305, 1311 (11th
Cir. 2000) (en banc).
Given the large volume of mitigating evidence of Mr.
Alderman’s life-history counsel failed to gather and present,
the state court’s decision was objectively unreasonable because
not only did it unreasonably apply this Court’s precedent, but
it also relied on erroneous factual findings that counsel
(1) conducted a thorough investigation and (2) presented
substantial evidence in mitigation. See Wiggins, 539 U.S. at
528 (“partial reliance on an erroneous factual finding further
highlights the unreasonableness of the state court’s decision’).
In Williams, this Court held that counsel was ineffective
because he failed to obtain the defendant’s juvenile records.
That the records contained harmful information was
immaterial: “{o]f course not all of the [} [unpresented]
evidence was favorable to Williams. ... But... failure to
introduce the comparatively voluminous amount of evidence
that did speak in Williams’ favor was not justified by a tactical
decision” because counsel did not adequately investigate and
therefore did not know what the evidence was. Williams, 529
U.S. at 396; accord Wiggins, 539 U.S. at 522.
Here, as in Williams, counsel could not have made a
reasoned strategic or tactical decision not to obtain and
introduce mitigating evidence of Mr. Alderman’s life-history
evidence because he did not know what that evidence was.
The state court’s focus on the two investigators and the
character evidence presented in support of the defense’s
residual doubt defense therefore was misplaced. The court
should have focused on counsel’s failure to gather and present
the comparatively voluminous amount of mitigating evidence
of Mr. Alderman’s life-history evidence, both records and
witness testimony, that was revealed to the court for the first
time at the habeas proceedings. The state court failed to do so.
20
In concluding that counsel performed reasonably and
effectively in their representation of Mr. Alderman, the state
court’s application of Strickland was objectively unreasonable.
Section 2254(d) thus poses no bar to this Court granting Mr.
Alderman habeas relief.
D. The Eleventh Circuit Merely Accepted The
Reasoning Of The State Court And Failed To Apply
Strickland As Directed By This Court
The Eleventh Circuit failed to assess directly the
reasonableness of counsel’s decision to limit their investigation
and presentation of mitigating evidence of Mr. Alderman’s
life-history. Instead, the Eleventh Circuit adopted a far stricter
approach. It required Mr. Alderman to “‘prove that the
approach taken by counsel would not have been used by
professionally competent counsel.’” Alderman, 468 F.3d at
792 (quoting Harich v. Dugger, 844 F.2d 1464, 1470 (1 1th Cir.
1988)) (abrogated on other grounds). The “approach” to which
the court referred was not the failure to investigate or present
mitigating evidence of Mr. Alderman’s life-history, but
counsel’s residual doubt defense. The Eleventh Circuit’s
standard thus relieved counsel of the obligation this Court
placed squarely on his shoulders — to demonstrate that his
failure to investigate or present this mitigating evidence was
based on a reasoned strategic or tactical decision.
Counsel’s admissions that he made no such decision should
have ended the analysis. Instead, the Eleventh Circuit
determined that it could affirm the state court’s ruling if other
professionally competent counsel would have adopted
counsel’s residual doubt defense, regardless of whether that
same counsel would have limited his investigation or
presentation of voluminous mitigating evidence in the same
way counsel did here. Alderman, 468 F.3d at 795. This turns
21
Strickland and its progeny on their heads, and it is for this
reason that the Eleventh Circuit unreasonably misapplied this
Court’s holdings.
Further, the Eleventh Circuit’s reliance on Harich is
irreconcilable with its decision in Collier v. Turpin, 177 F.3d
1184 (1ith Cir. 1999). In finding that counsel’s performance
during sentencing fell below professional standards and was
therefore ineffective, the Collier court noted that “defense
counsel did elicit testimony that Collier had a ‘good’
reputation, that he was generally known as a hard worker who
took care of his family, and that he had a good reputation for
truth and veracity.” /d. at 1201. The Eleventh Circuit found,
however, that counsel presented “no more than a [] shell of the
testimony necessary for a ‘particularized consideration of
relevant aspects of the character and record of [a] convicted
defendant before the imposition upon him of a sentence of
death.’” Jd. at 1201-02 (quoting Woodson v. North Carolina,
428 U.S. 280, 303 (1976)). The court further found that
“{ajlthough counsel were aware of the Supreme Court’s
opinion in Lockett, and recognized that the sentencing phase
was the most important part of the trial . . ., they presented
almost none of the readily available evidence of Collier’s
background and character that would have led the jury to
eschew the death penalty.” /d. at 1202.
Counsel’s performance here is indistinguishable from
Collier’s. While eliciting testimony of Mr. Alderman’s good
character at the RST in support of his residual doubt defense,
counsel presented almost none of the readily available evidence
of Mr. Alderman’s background. Counsel’s failure to present
this evidence fell below professional standards, and thus, the
assistance Mr. Alderman received at the RST violated his Sixth
Amendment right to effective counsel.
22
Il. COUNSEL UNREASONABLY OMITTED A
MITIGATION ARGUMENT FROM THE
RESENTENCING PHASE OF A CAPITAL TRIAL
The Eleventh Circuit’s decision was _ objectively
unreasonable because counsel’s omitting a mitigation argument
also must satisfy Strickland’s performance standards requiring
“reasonable professional judgment.” Strickland, 466 U.S. at
690-91. While counsel’s “strategic choices” made after a
thorough investigation are virtually, but not absolutely,
unchallengeable, id., the failure to make any strategic decision,
let alone a reasonable one, fails to satisfy the Strickland ~
standard.
While counsel is entitled to make a strategic decision to
forego a mitigation argument, winnow out some evidence to
stress other evidence, or not use mitigation evidence that could
be counterproductive or could provoke harmful cross-
examination and rebuttal witnesses, see Waters v. Thomas, 46
F.3d 1506, 1512 (11th Cir. 1995); Conklin v. Schofield, 366
F.3d 1191, 1204 (11th Cir. 2004); Chandler, 218 F.3d at 1319,
counsel here did not make such a strategic decision. Jackson |
admitted that his residual doubt defense did not prevent him
from making a mitigation argument. App. 238a.
Moreover, Jackson simply ignored substantial mitigating
evidence of Mr. Alderman’s life-history, and by doing so,
ignored this Court’s admonition that sentencing juries must not
be precluded from considering as a mitigating factor any aspect
of a defendant’s character proffered as a basis for a sentence
less than death. Lockett, 438 U.S. at 604 (plurality opinion);
see Woodson, 428 U.S. at 304 (“the fundamental respect for
humanity underlying the Eighth Amendment . . . requires
consideration of the character and record of the individual
offender and the circumstances of the particular offense as a
23
constitutionally indispensable part of the process of inflicting
the penalty of death”); see also Eddings v. Oklahoma, 455 U.S.
104 (1982) (the sentencer in capital cases must be permitted to
consider any relevant mitigating evidence); Skipper v. South
Carolina, 476 U.S. 1 (1986) (same); Spivey v. State, 246 S.E.2d
288, 290-91 (Ga. 1978) (“Georgia law nowhere defines
mitigating circumstances . .. . The conclusion is inescapable
that the legislature meant to empower the jury to consider as
mitigating anything they found to be mitigating, without
limitation or definition.”).
The character and life-history evidence presented at the
RST and proffered at the habeas proceedings clearly supported
a mitigation defense. See, e.g., Simmons v. South Carolina,
512 U.S. 154, 163 (1994) (character evidence); Skipper, 476
U.S. at 4-5 (evidence that defendant had adapted well to prison
life); Eddings, 455 U.S. at 113 (evidence of 16-year old
defendant’s troubled family history and emotional
disturbance); Miller v. Wainwright, 798 F.2d 426, 430-31 (1 1th
Cir. 1986) (favorable prospects for rehabilitation), vacated on
other grounds, 480 U.S. 901 (1987). Yet counsel failed to
argue any of this evidence in support of a mitigation defense.
Counsel’s failure to use this evidence in support of a
mitigation defense was not based on a reasoned strategic
decision. Indeed, counsel made no decision at all, reasonable
or otherwise. To the extent mitigation evidence was presented
at the RST, Jackson arbitrarily limited its use to show Mr.
Alderman’s good character in support of his residual doubt
defense. When asked by habeas counsel why he failed to ask -
any of the defense’s character witnesses whether the jury
should show Mr. Alderman mercy, Jackson admitted that he
had no such reason. App. 229a-30a. Jackson himself never
asked the jury to show Mr. Alderman mercy based on any of
this evidence, despite the judge’s instructions that the jury
24
consider mitigating circumstances as extenuating or reducing
the degree of Mr. Alderman’s moral culpability to justify a life
sentence. Instead of asking for mercy, Jackson told the jury
that they should consider this evidence in deciding whether
they believed Brown was lying about the murder. App. 194a-
96a.
To the extent other mitigating evidence was available, e.g.,
the substantial mitigating evidence of Mr. Alderman’s life-
history proffered at the habeas proceedings, counsel] did not use
it because he did not know about it; in fact, he made no attempt
to gather and present it because he did not understand that
relevant Jaw permitted him to go beyond character evidence.
Thus, counsel failed to properly use or simply ignored all of the
reasonably available mitigating evidence in omitting a
mitigation argument and thereby precluded the jury from
considering Mr. Alderman’s mitigating circumstances in
determining the appropriate punishment. This violated Mr.
Alderman’s Sixth Amendment right to effective counsel.
III. THERE IS A REASONABLE PROBABILITY
THAT, BUT FOR COUNSEL’S
UNPROFESSIONAL ERRORS, MR. ALDERMAN’S
RESENTENCING TRIAL JURY WOULD HAVE
RETURNED A LIFE SENTENCE
To establish prejudice under Strickland, a defendant must
show that there is “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Wiggins, 539 U.S. at 534. Here,
the existence of prejudice is clear, and had counsel performed
competently there is a reasonable probability that the RST jury
would have returned a life sentence. In reaching this
conclusion, the Court need not make the state law evidentiary
findings that would have been at issue at sentencing. /d. at
25
536. Rather, the Court need only evaluate the totality of the
evidence — “‘both that adduced at trial, and the evidence
adduced in the habeas proceeding.’” /d. (quoting Williams,
529 U.S. at 397-98) (emphasis omitted).
A. Counsel’s Omitting A Mitigation Argument
Prejudiced Mr. Alderman
By framing the character and life-history evidence before
the court as proof of Mr. Alderman’s innocence, Jackson
precluded the jury from performing their most critical function
at capital sentencing — giving meaningful consideration and
effect to all mitigating circumstances that might provide a basis
for refusing to impose the death penalty.
To counter effectively the State’s case for a death sentence,
Jackson should have told the jury that they were obligated to
consider Mr. Alderman’s character and life-history evidence as
mitigating factors supporting a life sentence. By failing to
make that argument, Jackson prevented the jury from focusing
on Mr. Alderman’s particularized characteristics and offering
a reasoned moral response to his character and life experiences.
See California v. Brown, 479 U.S. 538, 545 (1987) (O’ Connor,
J., concurring) (“the sentence imposed at the penalty stage
should reflect a reasoned moral response to the defendant’s
background, character, and crime’’) (emphasis in original). But
for Jackson’s failure, there is a reasonable probability that the
jury would have given Mr. Alderman a life sentence.
B. Counsel’s Limited Investigation And Presentation Of
* Readily Available Life-History Evidence Prejudiced
Mr. Alderman
The state and federal appellate courts failed to give
adequate consideration to the compelling mitigating evidence
26
the jury never heard. In evaluating the life-history evidence
presented for the first time at the 1999 habeas proceedings in
the form of live testimony, witness affidavits, and Mr.
Alderman’s medical and educational records, this Court should
find that, but for counsel’s unprofessional errors in not
presenting it at the RST, there is a reasonable probability that
the jury would have, placing the “totality of available [)
evidence” on the mitigation side of the scale, struck a different
balance and returned a life sentence. Wiggins, 539 U.S. at 534,
wat.
Counsel did not tell the jury about Mr. Alderman’s
psychological trauma caused by childhood events. Testimony
proffered at the habeas proceedings by Adlerman’s sister
would have revealed the emotional damage Mr. Alderman
suffered as a result of his neglect. Mr. Alderman’s sister,
Theresa Callaway, testified that Mr. Alderman’s mother never
had any contact with them, and that she and Mr. Alderman
moved in with their paternal grandparents. She testified that
they were “not a very close family and there was little warmth
or caring shown to us. ... My daddy always worked a lot, and
he drank a lot, so he really wasn’t around very much. He spent
very little time with me and Jackie. ... He gave us no
guidance and no control... .” App. 273a. Ms. Callaway
asserted that she and Mr. Alderman were repeatedly reminded
by their grandmother that she resented having to raise them.
App. 274a.
Additional testimony proffered at the habeas proceedings
by Mr. Alderman’s father and through his medical records
revealed the hardships caused by Mr. Alderman’s eye injury
and temporary blindness. Mr. Alderman’s father recalled that
“the violent attack and the loss of his eye had a profound affect
on Jackie throughout his life. He was picked on at school by
his peers. At times he would become discouraged and
27
depressed.” App. 263a. Alderman’s medical records indicated
that when he was 15, he had “an increasing number of
headaches” because he only used his right eye, and blurred
vision in his right eye became so severe that it prevented him
from reading. App. 278a-79a.
Counsel precluded the jury from giving meaningful
consideration and effect to Mr. Alderman’s bleak life-history
revealed by his educational records. When Mr. Alderman
transferred to the Georgia Academy for the Blind, his guidance
counselor compiled a case history that showed Mr. Alderman
was under the jurisdiction of the juvenile court, his father was
frequently absent and threatened to commit suicide, and his
step-grandfather went to stay with relatives in another town to
relieve himself of the tension at home. App. 291a-94a. The
school counselor assessed that Mr. Alderman was reluctant to
accept responsibility, possibly the result of “meager parental
control,” and that he had a weak self image created by his
weakening vision. App. 292a. Mr. Alderman was failing in
school because of his blindness. App. 292a.
Mr. Alderman’s experiences caused him to develop
psychological infirmities that the jury could have considered in
reducing the degree of his moral culpability. Repeated
references to his being blind while attending public school
caused him to develop an inferiority complex. App. 294a. The
school counselor concluded that the weak relationship with his
father and the lack of home support were a “threat to his
development of a normal self concept and proper control of his
instinctive impulses, causing the consequent development of a
reluctance to submit to the binding restrictions placed on him
by the society in which he lives.” App. 294a.
Morever, Counsel deprived the jury of the chance to
compare this bleak upbringing with Mr. Alderman’s significant
28
moral and psychological development while he was an inmate.
Martha Murphy Davis, a Presbyterian pastor and director of the
Southern Prison Ministry in Georgia, met Mr. Alderman at the
Georgia State Penitentiary in 1979.'' She told the court:
I’ve known people on the row who have had all
different kinds of life experiences and different kinds of
emotional responses to their life experience. And Jack
has stood out in many, many ways; both in his
relationships with other prisoners; prison staff[;]} .. . his
friends outside of prison; .. . his capacity through...
all that he’s been through, which has been a real legal
and emotional roller coaster, to maintain a sense of
focus and an amazing level of discipline.
I think discipline is one of the rea] hallmarks that I
would cite, [{] physically . . . spiritually; intellectually.
He reads very widely. He has .. . found a real home in
the Catholic church and has found in the practice of his
faith a way to sort of order his own life and order his
days so that he understands how to -- how to structure
his life around his faith commitment.
App. 217a.
Ms. Davis further described Mr. Alderman’s spirituality as
'' Ms. Davis was instructed by counsel to confine her testimony to
her observations and knowledge of Alderman prior to the RST. In
response, Ms. Davis stated: “I’ve known him for 20 years so, you
know, what happened before ‘84 and, you know, what happened
afterwards I can’t be entirely sure. But I'll do my best to do that.
App. 218a.
29
His spirituality has been such a warm and deep
expression in his own life that he has — it’s kind of
spilled out to be a resource for other prisoners and for
prison staff.
... [Jack] has been in many instances a mentor to other
people; and particularly younger guys coming into
prison for the first time not knowing how to handle
themselves; having, you know, the impulse to act
quickly and without thinking.
And I’ve seen on so many occasions Jack . . . take
somebody under his wing and help them. . . learn how
to live in that very difficult context without brutalizing
each other.
App. 217a-19a.
Father Richard Paul Wise, the chaplain at the Georgia
Diagnostic and Classification Center from 1980 to 1986, told
the court that “Jack is an amazing man. . . . I respected Jack’s
wisdom. I respected his insight into things. I respected his
religious commitment, . . . [h]e always had a strong desire to
learn more.” App. 205a-06a.
The totality of available evidence reveals that Mr.
Alderman endured a deeply troubling childhood and failed to
develop a normal self concept, proper control of his instinctive
impulse, and an ability to submit to societal restrictions. Yet,
in prison he developed positive relationships with family and
friends outside of prison. He demonstrated physical, spiritual,
and intellectual growth and discipline. Mr. Alderman
mentored new prisoners who came into prison “having... the
impulse to act quickly and without thinking[,]” and taught them
30
how to live in that restrictive environment without brutalizing
others. App. 218a-20a.
This is a compelling mitigation case that counsel should
have made and that the state and federal appellate courts should
have considered to ensure a reliable result. As this Court stated
in Strickland:
[T]he ultimate focus of inquiry must be on the
fundamental fairness of the proceeding whose result is
being challenged. In every case the court should be
concerned with whether, despite the strong
presumption of reliability, the result of the particular
proceeding is unreliable because of a breakdown in the
adversarial process that our system counts on to
produce just results.
466 U.S. 696. By failing to present evidence of Mr.
Alderman’ s life-history that would have mitigated his sentence,
counsel precipitated a “breakdown in the adversarial process.”
See Collier, 177 F.3d at 1204. The RST jury was charged with
deciding whether a man unknown to them should live or die,
but they did not have the life-history evidence necessary to
balance the seriousness of his crime with the conditions of Mr.
Alderman’s life. Jd. Had the jury been able to do so, it is at
least reasonably probable that they would have returned a life
sentence.
CONCLUSION
This Court should issue its writ of certiorari and review the
decision of the Eleventh Circuit.
Respectfully Submitted,
Leiv H. Blad Jr.
Jon R. Fritz
Clifford Chance US LLP
2001 K Street, NW
Washington, D.C. 20006
(202) 912-5000
Thomas H. Dunn
Counsel of Record
Georgia Resource Center
303 Elizabeth Street
Atlanta, Georgia 30309
(404) 222-9202
Counsel for Petitioner
APPENDIX
la
APPENDIX A
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 04-1495-P
JACK E. ALDERMAN,
Petitioner-Appellant,
v.
WILLIAM TERRY, Warden,
Respondent-Appellee.
Dec. 8, 2006, Decided
On Appeal from the United States District Court for the
Southern District of Georgia
BEFORE: TJOFLAT, ANDERSON and CARNES, Circuit
Judges.
PER CURIAM:
The petition(s) for rehearing filed by appellant, Jack E.
Alderman, is Denied.
2a
ENTERED FOR THE COURT:
/s/
UNITED STATES CIRCUIT JUDGE ORD-41
3a
APPENDIX B
UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT
Case No. 04-14595
JACK E. ALDERMAN,
Petitioner-Appellant,
v.
WILLIAM TERRY, Warden,
Respondent-Appellee.
October 30, 2006, Decided
APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF GEORGIA
Before TJOFLAT, ANDERSON, and CARNES, Circuit
Judges.
TJOFLAT, Circuit Judge:
1 The petitioner, Jack E. Alderman, is a Georgia prisoner
on death row, having been convicted of the 1974 murder of his
wife, Barbara J. Alderman, in the Superior Court of Chatham
County, Georgia. On July 16, 2004, the United States District
4a
Court for the Southern District of Georgia denied his petition
for a writ of habeas corpus, and he appealed. We granted his
application for a certificate of appealability as to one issue:
whether Alderman’s trial attorneys denied him the effective
assistance of counsel in the penalty phase of his sentencing
proceedings by failing to investigate and present to the jury his
social — history background.
2 From the time of the murder to the present appeal, this
case has extended over thirty-two years. Needless to say, the
procedural history of this case is extensive and complex. For
the sake of clarity, we organize the opinion as follows: part I
provides the factual background and procedural history of the
case; part [I focuses on Alderman’s 1984 re-sentencing trial;
part [II outlines Alderman’s ineffective assistance claim, the
evidence presented to the Superior Court of Butts County,
Georgia at the evidentiary hearing it held on the claim, and that
court’s findings of fact and conclusions of law; part IV spells
out Alderman’s challenge to those findings and conclusions
and explains why we cannot overturn them and, therefore, must
deny the relief that Alderman seeks.
I.
A.
3 The following statement of facts is an excerpt from
Alderman v. Zant, 22 F.3d 1541, 1544-46 (11th Cir. 1994).
The Petitioner, Jack E. Alderman (“Alderman’’), and his
wife, Barbara Alderman (“Mrs. Alderman”), lived in an
apartment in Chatham County [,} Georgia. Alderman was
employed as an assistant manager at the local Piggly Wiggly
supermarket. Mrs. Alderman was employed in the Tax
Assessor’s office for the City of Savannah. In conjunction
with her employment, Mrs. Alderman maintained a $10,000.00
5a
life insurance policy that paid double benefits in the event of
accidental death. Mrs. Alderman also had another life
insurance policy in the amount of $25,000.00 which named her
mother as beneficiary.
Alderman met John Arthur Brown (“Brown”), later
convicted as an accessory to Mrs. Alderman’s murder, when
both Alderman and Brown were employed in the vehicle
maintenance department for the City of Savannah. Brown
testified that on September 19, 1974, Alderman phoned Brown
and asked him to meet him at the Piggly Wiggly supermarket.
Brown stated that during this meeting Alderman asked Brown
to kill Mrs. Alderman in exchange for half the insurance
proceeds. Brown, although claiming not to take Alderman
seriously, accepted the proposition.
On Saturday, September 21, 1974, Alderman asked Brown
to come to his apartment. When Brown arrived, Alderman
handed Brown a twelve-inch crescent wrench and instructed
Brown to go into the bedroom and kill Mrs. Alderman.
Testimony indicates that Brown was initially reluctant, but
agreed to strike Mrs. Alderman when persuaded by the gun
wielding Alderman. Brown entered the dining room and struck
Mrs. Alderman in the head with the wrench. Mrs. Alderman
cried out and ran into the living room where she confronted her
husband. Alderman tackled Mrs. Alderman, then assisted by
Brown, placed his hands over Mrs. Alderman’s nose and mouth
until she was unconscious. -
Alderman and Brown carried Mrs. Alderman’s limp body
to the bathroom and placed it in the bathtub. Alderman started
to fill the tub while Brown cleaned the blood stains from both
the living and dining rooms. Alderman and Brown changed
clothes and left the apartment for several hours. The two men
went to the Piggly Wiggly supermarket where Alderman
borrowed $100.00. Alderman and Brown then went to two
6a
local Savannah bars. At some time during the evening
Alderman gave Brown the $100.00.
Alderman and Brown returned to the apartment around
10:00 p.m., removed Mrs. Alderman’s body from the bathtub
and wrapped it in a green quilt. The two men carried the body
to Alderman’s 1974 Pontiac and placed it in the trunk. Brown
drove Alderman’s car as Alderman followed on his
motorcycle. Alongside a creek in Rincon, Georgia, Brown and
Alderman removed the body from the trunk and placed it in the
driver’s seat. At Alderman’s direction, Brown reached in the
driver’s window and released the emergency brake allowing
the car to roll into the creek. The car stopped halfway into the
creek. Again at Alderman’s direction, Brown opened the car
door, pulled Mrs. Alderman’s body halfway out and allowed
her face to fall into the creek. The two men removed the green
quilt and the rubber trunk mat from the car and fled the scene
on Alderman’s motorcycle.
Later that evening, on September 21, 1974, Randy Hodges
(“Hodges”) and Terry Callahan (“Callahan”) were driving
home on Baker Hill Road and Highway 131. As they turned
onto Highway 131 and approached Dasher’s Creek, they
‘noticed a car in the creek. Hodges jumped out, saw that there
was a woman in the car and sent Callahan to Lamar Rahn’s
house to call for help. Effingham County Sheriff Lloyd
Fulcher (“Fulcher”) responded to the call. Upon his arrival at
the scene, Fulcher found the victim’s car in the water adjacent
to the bridge. Fulcher noticed no apparent physical damage to
the car. He ordered Mrs. Alderman’s body to be removed from
the car and taken to the hospital. Fulcher observed that there
were no skid marks from the car but that motorcycle tracks
were apparent in the area. Fulcher also noticed blood stains on
the seat of the car and that the trunk mat was missing.
Ta
At the direction of Fulcher, Garden City police officer J.D.
Crosby (“Crosby”) went to Alderman’s apartment only to find
it locked. Crosby later returned to the apartment at
approximately 2:30 a.m. and found Alderman there with a
woman. Crosby informed Alderman that his wife had been
involved in a traffic accident, and asked him to accompany
Effingham County authorities to the hospital. Georgia Bureau
of Investigation Agent H.H. Keadle (“Keadle”) was present at
the Effingham County hospital. Keadle and Fulcher noticed
red/brown stains in the seat and crotch of Alderman’s pants and
on his belt. At that time, Alderman’s clothes were taken from
him.
Keadle’s investigation confirmed Crosby’s findings at the
accident scene. Keadle also recovered a stained portion of a
green rug and Alderman’s motorcycle helmet, which had been
removed from Alderman’s apartment by Mrs. Alderman’s
mother. Alderman’s father, Jack Alderman, Sr., also gave the
police the twelve inch crescent wrench that he had removed
from Alderman’s apartment.
Forensic Serologist Elizabeth Quarles, of the Georgia State
Crime Laboratory, examined the blood found on Alderman’s
clothes. The blood type was consistent with Mrs. Alderman’s
blood. An examination of the vehicle revealed one palm print
and four fingerprints which were stipulated as Alderman’s.
Brown’s fingerprints, however, were not found on the car.
Dr. Charles Sullinger (“Dr. Sullinger”) performed the
autopsy upon Mrs. Alderman’s body. Dr. Sullinger concluded
that the laceration on the back of Mrs. Alderman’s head was
inflicted by a blunt instrument. Dr. Sullinger also concluded
that because there existed only a small amount of blood in the
car, the blow to Mrs. Alderman’s head did not occur as a result
of the accident. Dr. Sullinger found no evidence of any
abnormalities in the heart, no scratches on the forearms and no
8a
evidence of strangulation. Dr. Sullinger concluded that the
liquid in Mrs. Alderman’s lungs revealed that Mrs. Alderman
died as a result of asphyxia due to drowning.
Keadle’s investigation led him to Brown. Brown
eventually gave a statement incriminating himself and
Alderman. At trial, Alderman testified on his own behalf and
denied that he killed his wife. Alderman testified that on the
night of September 21, 1974, he and his wife had an argument
and that he left the apartment alone. He allegedly took a bus to
Savannah where he spent some time at two local bars.
Alderman testified that he returned home at approximately
10:00 p.m. but his wife was not at home. Alderman decided to
go to Rincon, Georgia to see if Mrs. Alderman was at her
- grandparent’s home. A more complete version of Alderman’s
defense may be found in Alderman v. State, 241 Ga. 496, 246
S.E.2d 642, 644-45, cert. denied, 439 U.S. 991, 99 S.Ct. 593,
58 L.Ed.2d 666 (1978), reh’g denied, 439 U.S. 1122, 99 S.Ct.
1036, 59 L.Ed.2d 84 (1979).
Alderman testified that on his way to Rincon, he observed
his car on the side of the bridge at Dasher’s Creek. Alderman
stopped his motorcycle and went to the car where he
discovered his wife’s body. Alderman stated that he picked up
Mrs. Alderman’s head and placed it in his lap. Upon hearing
a noise, Alderman fled the scene in shock and fear. Alderman
allegedly forgot about his wife’s body, drove to Savannah and
returned to a local bar. Alderman then went to Johnny
Ganem’s for breakfast with friends. While at breakfast,
Alderman offered Gerlina Carmack (the female present in the
Alderman’s apartment when Officer J.D. Crosby arrived) a ride
home. Alderman had allegedly stopped at his apartment to
pick up a jacket when the police arrived and took him to the
hospital where he identified his wife’s body.
9a
Alderman testified that he did not know why he had left his
wife’s body in the creek; that he recalled nothing of his trip
back to Savannah; and, the fact that his wife was dead had
completely left his mind. Appellant testified that he first
realized the full facts surrounding his wife’s death after being
treated by a psychiatrist who was able to refresh his memory as
to the events surrounding her death. He further testified that
after being treated by the psychiatrist he realized that fear had
caused him to leave his wife’s body in the creek because he
knew her family would blame him for her death.
B.
4.As noted supra, on July 16, 2004, the district court denied
Alderman’s application for a writ of habeas corpus. Alderman
v. Schofield, No. CV403-028 at 5-9 (S.D.Ga. July 16, 2004).
In its dispositive order, the court recounted the procedural
history of this case — the prosecution in the Chatham County
Superior Court, the appeals to the Georgia Supreme Court, the
collateral attacks in the Butts County Superior Court, and the
habeas proceedings in federal court. |
On June 14, 1975, Petitioner was convicted in the Superior
Court of Chatham County for killing his wife, and then he was
sentenced to death. Following his conviction, he appealed to
the Georgia Supreme Court, which denied his appeal on June
27, 1978. Certiorari was later denied by the United States
Supreme Court on November 27, 1978. He then filed for state
habeas relief in the Superior Court of Chatham County,
Georgia. In June 1979, the Georgia Supreme, Court denied
Petitioner a certificate of probable cause to appeal. The United
States Supreme Court denied certiorari on February 19, 1980,
and denied a rehearing on March 19, 1980.
Petitioner then filed an application for habeas relief in
federal district court on June 27, 1980. This first round of
10a
federal habeas appeals culminated in 1983 when the Fifth
Circuit, Unit B, acting en banc, granted a new sentencing trial,
which began in March 1984. After his re-sentencing trial,
Petitioner was again sentenced to death on April 1, 1984. He
then filed a motion for new trial and an amendment thereto,
which were denied in an order filed on August 27, 1984.
Petitioner directly appealed his death sentence to the Georgia
Supreme Court, which affirmed his new death sentence on
February 28, 1985. On October 15, 1985, the United States
Supreme Court denied certiorari and later denied a rehearing
on November 18, 1985.
Petitioner then began a second round of habeas appeals in
the state and federal courts with the same attorneys who
represented him at the re-sentencing trial. He filed a state
habeas petition in the Superior Court of Butts County on
February 6, 1986. An amended habeas petition was filed June
16, 1987, and a second amended habeas petition was filed June
25, 1987. Following an evidentiary hearing on June 29, 1987,
the state habeas court dismissed the petition on September 10,
1987, holding that all of Petitioner’s claims were barred from
review because of procedural default. On October 28, 1987,
the Georgia Supreme Court denied the application for a
certificate of probable cause to appeal. The United States
Supreme Court subsequently denied certiorari on March 7,
1988, and denied a rehearing on April 25, 1988.
Petitioner then filed a petition for habeas relief in federal
district court on June 23, 1988. The federal petition was
denied at the trial level on June 6, 1989, without an evidentiary
hearing. Subsequent to the entry of judgment, both Petitioner
and the State filed motions to alter and amend. On June 22,
1989, the District Court entered an order denying Petitioner’s
motion, but did not rule on the State’s motion. During the
pendency of the State’s motion, Petitioner filed a notice of
la
appeal. On August 10, 1990, the Eleventh Circuit dismissed
the appeal of Petitioner for lack of jurisdiction. On remand, the
District Court entered an order on September 20, 1990,
granting the State’s motion to alter and amend in part and
denying the motion in part.
Petitioner then filed an appeal challenging the decision of
the District Court, while at the same time challenging the
court’s jurisdiction to consider his own appeal due to the
failure to rule on an issue. On December 27, 1991, the
Eleventh Circuit dismissed the appeal for lack of jurisdiction
because the District Court failed to rule on Petitioner’s claim
regarding the guilt — phase jury, but the Eleventh Circuit did
find that the District Court had jurisdiction to hold an
evidentiary hearing on Petitioner’s . . . claims [Giglio v. United
States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972);
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d
215 (1963)], and ordered the District Court to hold such a
hearing. After an evidentiary hearing on May 18, 1992, the
District Court found the Brady/ Giglio claims to be
procedurally barred, and thereby dismissed the petition on June
23, 1992. The Eleventh Circuit affirmed the ruling on April
14, 1994, and denied a rehearing en banc on July 12, 1994.
The United States Supreme Court again denied certiorari on
December 12, 1994, and denied a rehearing on February 21,
1995.
Petitioner began a third round of habeas action in the
Superior Court of Butts County on December 22, 1994,
challenging his new death sentence on two grounds:
ineffective assistance of counsel during the re-sentencing trial
and ineffective assistance of counsel during the appeal from the
re-sentencing trial. The State filed its answer on January 13,
1995. For reasons unknown to the Court, no action apparently
12a
occurred in Petitioner’s case in the state court system until
1999.
On March 29, 1999, an amended habeas petition was filed
in the state court. An evidentiary hearing was conducted in the
state habeas court on May 5 and 6, 1999, and Petitioner’s
claims were denied on December 29, 1999. Petitioner’s
application for a certificate of probable cause to appeal was
denied by the Georgia Supreme Court on January 10, 2002. On
October 21, 2002, the United States Supreme Court denied
certiorari.
5 In February 2003, after exhausting these remedies,
Alderman once again returned to the district court for habeas
corpus relief. In a new petition, he claimed that he was denied
constitutionally effective assistance of counsel at his 1984 re-
sentencing trial and in his direct appeal from the death sentence
he received. The district court, relying on the record compiled
by the Superior Court of Butts County on Alderman’s March
29, 1999 habeas petition and the court’s order denying relief,
denied Alderman’s petition and his subsequent motion to alter
and amend the judgment. In June 2005, we granted
Alderman’s application for a certificate of appealability on the
ineffective assistance of counsel issue set out in the opening
paragraph of this opinion.
Il.
6 In subpart A, we outline the case that the State
presented against Alderman at his 1984 re-sentencing trial
(“RST”). In subpart B, we outline the case Alderman
presented.
A.
7 At Alderman’s RST, the State sought the death penalty
on the grounds that the motive and manner in which Alderman
13a
murdered his wife constituted two aggravating circumstances,
each of which independent*y warranted the death penalty: (1)
he murdered his wife to obtain insurance money, and (2) he
committed the murder in an “outrageously vile” or “inhuman”
way.
8 Addressing the first aggravating circumstance, the
prosecutor told the jury that Alderman deserved the death
penalty because he murdered Mrs. Alderman “ for. . . the
purpose of receiving [insurance] money.” The prosecutor
established this motive by presenting the testimony of City of
Savannah employee, Sandra Sullivan. Sullivan, the City’s
personnel technician who handled employee benefits and
records in September 1974, testified that Mrs. Alderman was
employed by the City at the time of her death and explained
that, as a City employee, Mrs. Alderman participated in the
City’s group life insurance policy. The prosecutor produced a
- copy of the City’s group policy, which provided for a death
benefit commensurate with salary — up to $10,000 — with
double indemnity upon accidental death. He also offered a
copy of Mrs. Alderman’s enrollment card for the City’s group
policy, which listed Alderman as the sole beneficiary. Sullivan
also testified that at the time of Mrs. Alderman’s death, her
salary qualified her for the maximum $10,000 death benefit,
which would double to $20,000 in the event of accidental
death.
9 The prosecutor used John Brown to cement his theory
that Alderman killed his wife for the insurance benefits.
Brown testified that in the days preceding Mrs. Alderman’s
death, Alderman enlisted him in a plot to kill her. Brown said
that Alderman promised him half of the insurance money for
his role in the murder.
10 Regarding the second aggravating circumstance, the
prosecutor urged the jury to invoke the death penalty because
14a
the “offense of murder . . . was outrageously or wantonly vile,
horrible, or inhuman in that it involved torture, depravity of
mind, or an aggravated battery to the victim.” Brown
provided the State’s only evidence on this point. His testimony
painted a picture of what the prosecutor termed an “‘[e]xecution
type [sic] killing.”
11 Brown recounted the events of the night of Mrs.
Alderman’s death. Brown said that when he came over to
Alderman’s apartment that evening, Alderman had him follow
Mrs. Alderman around the apartment with a wrench in his
hand. Brown struck Mrs. Alderman in the back of her head
with the wrench. Alderman then got Mrs. Alderman on the
floor and held his hand over her nose and mouth so that she
could not breathe. The two men then took Mrs. Alderman to
the bathroom tub and filled it with water. Alderman held her
head under water. The two men then left her there and headed
to the local bar for a few drinks. Upon their return to the
apartment two hours later, Brown and Alderman put Mrs.
Alderman’s body in the trunk of the Aldermans’ car and drove
the car to a creek that was on the way to Mrs. Alderman’s
grandmother’s house. They then put Mrs. Alderman’s body in
the driver’s seat, rolled down the windows, put the gear in
neutral, and sent the car into the creek to make it look like an
accident.B.
12 Alderman countered the State’s case by showing that
Brown had a better motive for killing Mrs. Alderman than he
did, and that Brown had confessed to a fellow jail inmate that
he had, in fact, committed the murder. Put another way,
Alderman’s attorneys pursued a lingering or residual doubt
theory as to whether Alderman murdered his wife and, in doing
so, gave the jury a basis for returning a verdict of life
imprisonment instead of the death penalty. Counsel felt that
the lingering doubt theory was the appropriate strategy because
l5a
a new jury had been empaneled for the RST, the jury that
convicted Alderman in 1975 having been discharged. If
successful, the lingering doubt strategy would yield a sentence
of life imprisonment instead of death.
13 In carrying out this strategy, counsel focused on the
inconsistencies in the State’s case, asking in their opening
statement (after the State rested its case) and again in closing
argument that the jury not sentence Alderman to death because
there was considerable doubt as to whether he had committed
the crime. They supported this strategy with an alternative
theory of how the murder occurred: Brown acted alone and
killed Mrs. Alderman for drug money.
14 Defense counsel proceeded with Alderman’s defense as
follows (each category to be discussed in greater detail, infra).
First, they planted the seeds of their lingering doubt theory by
impeaching Brown’s credibility — his story about what
motivated Mrs. Alderman’s murder and how it occurred. They
accomplished this principally through their cross-examination
of Brown while he was on the witness stand in the State’s case.
Then, they put on witnesses who said that Aldertnan’s
reputation (in 1974) for being a law-abiding citizen was good
— such that it would have been completely out of character for
Alderman to have murdered his wife — and that his reputation
for truthfulness (in 1974 or at the time of the RST) was beyond
reproach. Counsel elicited testimony of Alderman’s
reputation for telling the truth because he would be their final
witness, and the jury would have to believe him if they were to
have a linger:=2 doubt as to his guilt.
15 After calling these “reputation” witnesses, counsel
presented evidence — mainly through the testimony of
Alderman’s father - about Alderman’s upbringing and the
struggles Alderman had to overcome to become a productive
member of society. Counsel added to this the testimony of
16a
those monitoring Alderman’s prison behavior; they said that
Alderman was a model prisoner who posed no threat to the
safety of fellow inmates or prison personnel, thus implying that
the jury need not sentence him to death to protect those in
prison. With all of this testimony before the jury, counsel
called Alderman to the stand.
l.
16 Because the State’s case hinged principally on Brown’s
testimony, defense counsel went all out in an effort to destroy
Brown’s credibility. To that end, counsel portrayed Brown as
a lying drug addict. Counsel questioned Brown at great length
about his heavy use of alcohol and illegal drugs. Brown
conceded that he went through about four fifths of whiskey per
week and smoked as much as an ounce of marijuana per day.
He also admitted to taking barbiturates by the handful and
using speed, LSD, opium, and qualudes.
17 While presenting Alderman’s case, counsel read to the
jury a transcript of an interview that an agent of the Georgia
Bureau of Investigation conducted with Brown wherein Brown
admitted that he was intoxicated at the time he helped
Alderman kill his wife. Brown also admitted that he
experienced sporadic flashbacks on account of his LSD use.
During these flashbacks, he would blackout, hallucinate, and
generally have no recollection of what he did during the
flashback. Brown acknowledged, moreover, that during his
trip back to the United States from military service in Vietnam,
he removed from his medical records, which had been
entrusted to him, references to his frequeat blackouts, inability
* to control himself, and inability to remember his actions during
blackouts.
18 In addition to portraying Brown as having extreme
difficulty remembering critical events, Alderman’s defense
17a
counsel countered Brown’s description of how the murder
occurred. First, they presented the testimony of a man, Robert
S. Walters, who occupied the same cell block that Brown did
in December 1974, while Brown was under indictment and
awaiting trial for the Alderman murder. Walters testified that
Brown gave him three different versions of how Mrs.
Alderman died. In the first version, Alderman forced Brown
to. kill her by threatening him with a knife. In the second
version, Alderman threatened Brown with a gun. In the final
version, Brown recounted how he alone killed Mrs.
Alderman—without reference to any involvement on the part
of Alderman. In that account, Brown told Walters that he and
Mrs. Alderman had been “having an affair and that he needed
money for dope and that him and her [sic] got into an argument
and from that argument he picked up a wrench and hit her and
then put her in the trunk of the car and drove her out to the
creek.”
19 The second way in which defense counsel countered
Brown’s description of the murder was to present the testimony
of Dr. Sandra Conradi, a forensic pathologist. In his testimony
in the State’s case, Brown said that Alderman put his wife on
the floor and held his hand over her mouth and nose so she
could not breathe. She became unconscious. He then helped
Alderman take her to the bathroom where she was placed in the
tub and drowned. Dr. Conradi testified that her examination of
Mrs. Alderman’s autopsy report, the transcript of the 1975 trial
testimony of the Director of the Chatham County Branch of the
State Crime Lab, and various other documents indicated that
there was no strangling, choking, squeezing of the nose, or any
other sign of struggle with Mrs. Alderman prior to her death.
2.
20 Several witnesses portrayed Alderman as a man
incapable of the act John Brown and the State accused him of
18a
committing and as a person with unimpeachable veracity. The
pastor of the Aldermans’ church, members of that church,
neighbors, and former co-workers testified that Alderman had
a reputation in the community for being law-abiding and
truthful. They described him as a hard-working man of good
character. Alderman’s pastor, Rev. Jesse W. Hilton, a Baptist
minister who baptized Alderman, also told of the Aldermans
involvement in his church; they were active in not just one, but
in all of the church’s ministries. A Catholic chaplain, Father
Richard Paul Wise, who had considerable interaction with
Alderman in the prison setting, echoed the pastor’s sentiments,
adding that Alderman was one of the most honest people he
had ever met in prison work.
3.
21 Alderman’s father described his son’s childhood and
upbringing. He and his wife divorced when Alderman was
three years old. Following the divorce, he took Alderman and
his younger sister to live with their paternal grandmother and
step-grandfather.
22 The father told how Alderman lost his left eye and the
impact that had on his son’s development. At the age of four,
Alderman was fishing with his grandmother and step-
grandfather when he accidentally stabbed himself in the left
eye with a fishing knife. Following surgery and his release
from the hospital, a child hit him in the same eye with a
hacksaw blade, which left him blind in that eye. Despite this
handicap, Alderman’s father recounted that when his son was
“in the fifth grade, he had already [gone] through the sixth
grade books and . . . his teacher and the principal wanted him
to skip the sixth grade.” A sympathetic blindness, “optical
neuritis,” began to develop in Alderman’s functional eye,
however, and Alderman lost so much vision that he could not
see or write. As a result, he was sent to the Georgia Academy
19a
for the Blind in Macon. He stayed there through his junior
year of high school, excelling academically.
23 While at the academy, Alderman was hospitalized on
three occasions for eye surgery. The first surgery was
experimental to reduce inflammation. The last surgery was
performed to remove the eye so a prosthesis could be
implanted. Meanwhile, the sight in his right eye improved
enough to enable him to transfer to Savannah High School for
his senior year. His performance during that year so impressed
his high school counselor that she recommended him to an
employer who was looking for a student to train in its business.
24 Alderman’s father concluded his direct — examination
by saying that he loved his son, that he visited him at the prison
“a couple of times,” and that he “wanted to go more, but [his]
health wouldn’t permit it.”
4.
25 Operating under the assumption that their lingering
doubt strategy might fail, defense counsel sought to avoid the
death penalty by convincing the jury that Alderman would pose
no threat to the safety of fellow prison inmates and people
working at the prison. To this end, they presented the
testimony of eleven prison guards. All said that Alderman was
a model prisoner. They described him as a committed
Christian who frequently assisted them in caring for fellow
inmates. Although they did not say so explicitly, they clearly
implied that his execution was not necessary for the protection
of inmates and those working in the prison facility.
3.
26 Counsel presented Alderman as their final witness.
Their direct examination was tailored to the lingering doubt
theory they had set before the jury in their opening statement.
20a
Alderman described his relationship with his wife and his
whereabouts on the night of her death, a description that stood
in sharp contrast to what Brown had told the jury. Alderman
testified that he and Mrs. Alderman had a fight that day
regarding their inability to conceive a child. Both were
considerably upset, so he left their apartment for a while.
Upon his return, he found that she was not there. Thinking that
she had gone to her grandparents’ house, he began driving
there. About a half a mile from their house, he saw a car
partially submerged in a creek and decided to investigate.
Upon closer inspection, he recognized the car as his own. In
the car, he found his wife’s body. Alderman said that from the
time he discovered her body in the creek until he identified her
body at the hospital, he had no memory of his actions or any
awareness of her death.
27 To bolster this statement, Alderman’s counsel read to
the jury a transcript of the testimony Dr. Herbert Smith, a
psychiatrist, had given at his trial in June of 1975. Dr. Smith
had examined Alderman a month or so before his trial to
determine the cause of Alderman’s lack of memory at such a
critical point in time. He opined that Alderman suffered from
a “selective amnesia [that was] probably secondary to
disassociative reaction,” and that upon seeing his wife’s body
in the creek, he “was emotionally upset, suffering from shock
and disbelief, and overwhelmed with grief.” Alderman then
heard a car approaching and assumed that because he was so
close to the grandparents’ house, the car probably contained
her relatives. He reasoned that “if they saw him there they
would jump to the conclusion that he was responsible and they
would hurt him physically,” as “they had threatened to do...
in the past.”
28 Dr. Smith then explained how “the mechanisms of fight
or flight went into operation and [Alderman] fled the scene to
21a
avoid what he considered almost certain physical harm.” To
keep from “feeling unmanly and cowardly” about leaving his
wife there, Alderman experienced a disassociative reaction.
The part of his consciousness that knew he had discovered his
wife “was split off from the rest of it and . . . repressed into the
unconsciousness. This created a disassociative reaction and
along with it the amnesia.” This, in turn, enabled Alderman to
“subconsciously deny that he had found his wife’s body and
therefore deny that she was actually dead at all, so that he did
not have to feel guilty about leaving his wife and he would also
be able to escape the terrible fear of physical harm by his in-
laws.” Dr. Smith said that Alderman’s amnesia “lasted from
the time he spotted his wife’s body in the creek until the time
he identified [her} body at the hospital.”
29 Responding to the State’s theory that he killed his wife
to collect insurance proceeds, Alderman testified that he and
Mrs. Alderman had a good marriage and that he had no more
monetary incentive to kill his wife than any other husband
whose wife had life insurance. Contrary to Brown’s story,
Alderman testified that his wife was not contemplating a
divorce. Alderman said that he and Mrs. Alderman had a
normal, healthy marital relationship.
30 Alderman’s lawyers thus impugned John Brown’s
credibility, and therefore the State’s theory of the case, by
portraying Brown as a lying drug-addict, and offering his own,
exculpatory version of events.
iil.
31 In his habeas petition to the Butts County Superior
Court on December 22, 1994, Alderman claimed that his
attorneys denied him the effective assistance of counsel by
failing to investigate and present to the jury his social - history
background. The heart of his claim was that his “counsel’s
22a
failure to investigate, develop and present mitigating evidence
beyond lingering doubt evidence was not the result of a tactical
or strategic decision. Rather it was the result of a complete
failure to understand the meaning, purpose and scope of
mitigation evidence at a capital sentencing trial.”
32 The superior court held an evidentiary hearing on the
petition on May 5-6, 1999. Alderman’s habeas attorneys
examined six witnesses: Father Richard Paul Wise, Catherine
Thompson, Martha Murphy Davis, Jack Boyd Deal, George
Terry Jackson, and Michael Schiavone. Father Wise was the
chaplain at the Georgia Diagnostic and Classification Center
from 1980-1986, and came to know Alderman while he was on
death row there. Father Wise, who had testified as a defense
witness at the RST, complained that he “didn’t get a chance to
say what [he] wanted to say.” He remembered, however,
being asked his opinion of Alderman and commenting that “he
was probably one of the most honest people [he had] met in
prison work.” Catherine Thompson, Alderman’s ex-wife,
stated that while she testified as a defense witness at
Alderman’s 1975 trial, she was not asked to testify at his RST.
Thompson would have testified that Alderman never abused
her, and that she had “never seen him get in any kind of
arguments, fights. . . that wasn’t his nature.” Similarly, Martha
Murphy Davis, a Presbyterian pastor and director of the
Southern Prison Ministry in Georgia, averred that she did not
testify at Alderman’s RST but would have been willing to do
so. Alderman’s lawyers at the evidentiary hearing also called
Jack Boyd Deal, a retired high school teacher who taught
Alderman at Savannah High School in 1968 and 1969. Deal
said that he was not contacted to serve as a defense witness at
the RST, but if given the chance to testify he would have
described Alderman as a model student who “got along well
with his peers and his other teachers.”
23a
33 The crux of the evidentiary hearing focused on the
testimony of Alderman’s attorneys, George Terry Jacksua and
Michael Schiavone. In terms of experience, Jackson had been
a practicing attorney for twelve years, and had handled several
death penalty cases, some of which went to trial, by the time he
was appointed to represent Alderman. In light of his
experience in capital cases, Jackson was writing articles and
speaking at seminars regarding death penalty litigation.
Jackson occupied the first chair, and Schiavone was the second
chair at Alderman’s RST.
34 At the RST, Jackson was primarily responsible for
preparing witnesses on the lingering doubt theory, and
Schiavone mainly organized the mitigation evidence. Jackson
testified that while lingering doubt was their primary defense
to the death penalty, they also wanted “to show what kind of
person Jack Alderman was, that he was well respected in the
community and trusted.” Jackson explained that their character
witnesses were questioned at the RST about Alderman’s
reputation in the community for being a truthful, law abiding
citizen, and that there was no tactical reason for not asking
them about Alderman’s life and background. Jackson also said
that he did not have a particular reason for not having
Alderman’s ex-wife testify or introducing portions of
Alderman’s medical and educational records.
35 Jackson testified that he hired two investigators to
locate a number of witnesses. In particular, he was interested
in determining the whereabouts of Jon Sato. Sato and Brown .
were housed in the same cellblock following Brown’s
conviction in 1975. Sato gave a taped, sworn statement to his
attorney describing how Brown had confessed to committing
the murder alone, without Alderman’s involvement. Prior to
the RST, Sato anc the tape disappeared. Jackson described the
lengths the defense team went to in an attempt to secure Sato’s
24a
testimony. They discovered Sato but only after the jury had
returned its verdict against Alderman and he had been
sentenced. Jackson also discussed his decision to call Dr.
Conradi as a defense witness. While Dr. Conradi was not part
of the defense’s case at the 1975 trial, Jackson wanted to
emphasize the absence of the physical findings that should
have been present on Mrs. Alderman’s body had Brown been
telling the truth.
36 As for mitigating evidence, Jackson and Schiavone
called as character witnesses eleven corrections officers, seven
of Alderman’s friends, and five of Alderman’s previous
employers or co-workers. Schiavone testified that “[he]
wanted background information about Jack and about his
family and things of that nature. You know, my recollection is
that even though it was a re-sentencing hearing the main thrust
of our approach was that — was to prove Jack’s innocence, that
they shouldn’t put an innocent man to death.” When asked
whether he had a strategical reason for not inquiring into the
details of Alderman’s “life experiences,” Schiavone responded
that there was “no tactical or strategic reason I can think of,
just probably didn’t ask them.” Upon further inquiry,
Schiavone said: “we probably were thinking that [the
reputation evidence] was the extent that we could go into at the
time.”
37 On December 29, 1999, the Butts County Superior
Court denied Alderman’s petition for writ of habeas corpus.
After discussing Jackson and Schiavone’s representation of
Alderman, the court found that “trial counsel brought ‘to bear.
such skill and knowledge as will render the trial a reliable
adversarial testing process.’” Alderman v. Head, No. 94-V-720
at 20 (Super. Ct. of Butts County Dec. 29, 1999) (citing
Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052,
_ 80 L.Ed.2d 674 (1984)). The court further found that defense
25a
“eé
counsel’s “strategy to show ‘residual doubt,’ was a reasonable,
professional decision in light of the information and facts that
were available to trial counsel at the time.” Id.
As the jury at the re-sentencing trial was not the same jury
who found Alderman guilty of the crime, there was a
possibility that this jury, who heard the entire guilt/innocence
evidentiary presentation, would believe that some doubt existed
as to Alderman’s guilt. It was reasonable for Mr. Jackson to
believe that presenting evidence that Alderman’s mother had
left the family when he was a child and evidence about his
vision problems would not sway a jury to impose a life
sentence instead of death. In fact, in order to effectively
present a penalty phase defense of mercy based on sad
circumstances of his childhood and adolescence, Alderman
may have had to admit to committing the crime and then ask
the jury to spare him the death penalty due to his difficult
childhood. Because Alderman maintained his innocence
throughout the first trial and the re-sentencing trial, such a
strategy would have been incompatible with his testimony;
therefore, the residual doubt strategy used by Mr. Jackson was
a reasonable one based on the facts and circumstances as Mr.
Jackson knew them to be at that time.
Alderman v. Head, No. 94-V-720 at 23 (Super. Ct. of Butts
County December 29, 1999).
38 In response to the claim that his attorneys failed to
conduct an adequate pretrial investigation of Alderman’s life
history, the court found that counsel thoroughly investigated
Alderman’s background with the aid of two investigators. The
court also rejected the claim that counsel failed to understand
the scope of available mitigating evidence, and thus failed to
present sufficient evidence in mitigation. The court found that
Alderman’s attorneys presented “substantial” mitigation
evidence. Id. at 25. In sum, the court concluded that
26a
“Alderman has failed to establish that he received ineffective
assistance of counsel under either prong of the Strickland
standard and relief on this claim is denied on the merits.” Id.
at 30.
IV.
39 Alderman challenges the Butts County Superior Court’s
findings of fact and conclusions of law on the ground that both
are unreasonable under the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d). Because
the state court adjudicated his habeas corpus claim on the
merits, we can grant his application for a writ of habeas corpus
only if that court’s adjudication:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.
28 U.S.C. § 2254(d). Accordingly, for Alderman to secure
federal habeas corpus relief, he must demonstrate that his case
satisfies the conditions set forth in either § 2254(d)(1) or
§ 2254(d)(2).
40 Specifically, the Supreme Court provided guidance
about how to interpret § 2254(d) in Williams v. Taylor, 529
U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under
section 2254(d)(1), the “contrary to” and “ unreasonable
application” clauses are interpreted as independent statutory
modes of analysis. See Williams, 529 U.S. at 405-407, 120
S.Ct. at 1519-1520. Williams held that there are two ways in
which a state — court decision may be “contrary to” Federal
law:
27a
“First, a state — court decision is contrary to this Court’s
precedent if the state court arrives at a conclusion opposite to
that reached by this Court on a question of law. Second, a state
— court decision is also contrary to this Court’s precedent if the
state court confronts facts that are materially indistinguishable
from a relevant Supreme Court precedent and arrives at a result
Opposite to ours.”
529 U.S. at 405, 120 S.Ct. at 1519 (O’Connor, J., for
majority). However, Williams does not limit the construction
of “contrary to” to the two examples set forth above. Section
2254(d)(1)’s “contrary to” simply implies that “the state court’s
decision must be substantially different from the relevant
precedent of this Court.” Id.
41 Alternatively, when the federal court is faced with a
“run-of-the-mill state-court decision applying the correct legal
rule,” the companion “unreasonable application” provision of
§ 2254(d)(1) is the proper statutory lens. 529 U.S. at 406, 120
S.Ct. at 1520. In other words, if the state court identified the
correct legal principle but unreasonably applied it to the facts
of a petitioner’s case, then the federal court should look to
§ 2254(d)(1)’s “unreasonable application” clause for guidance.
“A federal habeas court making the ‘unreasonable application’
inquiry should ask whether the state court’s application of
clearly established federal law was objectively unreasonable.”
529 U.S. at 409, 120 S.Ct. at 1521 (emphasis added).
42 In addition to § 2254(d)(1), § 2254(d)(2) regulates
federal court review of state court findings of fact; the section
limits the availability of relief to “decision[s] that w[ere] based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”
§ 2254(d)(2). Finally, § 2254(d) provides the framework for
granting habeas corpus relief in situations where the federal
court has found constitutional error. See, e.g., Wiggins v.
28a
Smith, 539 U.S. 510, 528, 123 S.Ct. 2527, 2539, 156 L.Ed.2d
471 (2003); Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th
Cir.2004), cert. denied, 543 U.S. 1038, 125 S.Ct. 809, 160
L.E.2d 605 (2004).
43 Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), establishes the test that governs
claims of ineffective assistance of counsel, i.e., the “clearly
established Federal law” relevant to this case under 28 U.S.C.
§ 2254(d). The petitioner must satisfy Strickland’s two-part
test to mount successfully an ineffective assistance of counsel
claim. 466 U.S. at 687, 104 S.Ct. at 2064. In other words, the
petitioner must show both 1) deficient performance of counsel
and 2) prejudicial impact stemming from counsel’s deficient
performance. Id. Under the first prong, the petitioner must
show “that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Id. The hallmark of the second prong is
reliability: “This requires showing that counsel’s errors were
sO serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Id.
44 When assessing whether counsel fulfilled their
obligations under Strickland, the Supreme Court has “focus[ed]
on whether the investigation supporting counsel’s decision not
to introduce mitigating evidence of [petitioner’s] background
was itself reasonable.” See, e.g., Wiggins v. Smith, 539 U.S.
510, 523, 123 S.Ct. 2527, 2536, 156 L.Ed.2d 471 (2003)
(concluding that counsel’s decision not to expand their
investigation beyeed three sources fell short of the required
professional standards). Furthermore, in evaluating the
reasonableness of the investigation, “a court must consider not
only the quantuim of evidence already known to counsel, but
also whether the known evidence would lead a reasonable
29a
attorney to investigate further.” Wiggins, 539 U.S. at 527, 123
S.Ct. at 2538.
45 This is not to suggest that there is some latent magic
number of witnesses to interview or documents or exhibits to
review. On the contrary, there is “no absolute duty to
investigate particular facts or a certain line of defenses.”
Fugate v. Head, 261 F.3d 1206, 1217 (11th Cir. 2001) (noting
that “a complete failure to investigate may constitute deficient
performance of counsel in certain circumstances”). Rather
than scrutinizing counsel’s performance through the narrow
lens of hindsight, the court must consider “the sum total of
{counsel’s] efforts.” Id. at 1240. Furthermore, there is not one
“correct” way for counsel to provide effective assistance.
To uphold a lawyer’s strategy, we need not attempt to
divine the lawyer’s mental processes underlying the strategy
. . . No lawyer can be expected to have considered all of the
ways. If a defense lawyer pursued course A, it is immaterial
that some other reasonable courses of defense (that the lawyer
did not think of at ali) existed and that the lawyer’s pursuit of
course A was not a deliberate choice between course A, course
B, and so on . . . our inquiry is limited to whether this strategy
... Might have been a reasonable one.
Chandler v. United States, 218 F.3d 1305, 1316 n. 16(11th
Cir. 2000).
46 Even if the petitioner claims that his attorney was
unaware of a relevant defense, “petitioner must prove that the
approach taken by defense counsel would not have been used
by professionally competent counsel.” Harich v. Dugger, 844
F.2d 1464, 1470 (1 Ith Cir. 1988) (abrogated on other grounds).
As Strickland emphasized, “a court must indulge a strong
presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the defendant
30a
must overcome the presumption that, under the circumstances,
the challenged action ‘might be considered sound trial
strategy.’” 466 U.S. at 689, 104 S.Ct. 2052 (citing Michel v.
Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83
(1955)).
47 Here, Alderman contends that the state habeas court
unreasonably applied Strickland’s standard as to the deficient
performance prong of his ineffectiveness claims. Alderman
maintains that under Strickland, his attorneys’ failure to
investigate life-history mitigation evidence was reasonable
only if counsel made an informed strategic decision to forego
such an investigation. In this regard, Alderman questions the
state habeas court’s determination that counsel’s presentation
of lingering doubt evidence effectively precluded a finding of
deficient performance.
48 Alderman further claims that the state habeas court’s
decision should be disregarded because the court based its
decision on unreasonable determinations of fact in light of the
evidence before the court. He contends that the record clearly
establishes that his attorneys did not make a strategic or tactical
decision to forego presenting life — history mitigation evidence,
but instead misunderstood the law regarding mitigation
evidence, i.e., they believed that the only evidence the law
permitted them to present was testimony concerning his
reputation in the community for being law abiding and truthful.
Alderman emphasizes Jackson’s statement at the evidentiary
hearing that the mitigation evidence Alderman’s habeas
attorneys proffered was not inconsistent with the lingering
doubt theory that counse] adopted at the RST.
49 We conclude that the state court’s application of
Strickland was not objectively unreasonable, and that defense
counsel’s life — history investigation and presentation of
mitigating evidence did not constitute ineffective assistance of
<=
3la
counsel under Strickland. We also conclude that defense
counsel’s failure to present the evidence habeas counsel
proffered at the evidentiary hearing did not constitute an error
so “serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.”
50 Counsel was not required to examine every possible
legal strategy or defense available. Strickland focuses on
whether the investigation supporting counsel’s decision was
itself reasonable. Contrary to Alderman’s view, the state court
determined that counsel conducted a thorough background
investigation with the aid of two investigators, presented
substantial evidence in mitigation, and had a reasonable trial
strategy. As the court stated, “trial counsel’s strategy to show
‘residual doubt’ was a reasonable, professional decision in light
of information and facts that were available to trial counsel at
the time.” Alderman v. Head, No. 94-V-720 at 20 (Super. Ct.
of Butts County Dec. 29, 1999).
5i Furthermore, Alderman’s claim that counsel needed to
make a strategic decision to forego a life — history investigation
to satisfy Strickland presupposes that counsel did not in fact
make such a decision. At trial, through the testimony of
Alderman, his father, and Dr. Smith, counsel elicited an
account of Alderman’s upbringing: Alderman did not
remember his mother at all; the challenges he faced due to his
eye injury and subsequent blindness; and the year that he spent
away from his family while at the Georgia Academy for the
Blind. In addition, defense counsel elicited his father’s
testimony of love for his son.
52 Notwithstanding counsel’s presentation of such
mitigating evidence, Alderman contends that the state court’s
finding that defense counsel presented “substantial” mitigating
evidence constitutes an unreasonable determination of fact in
light of the evidence before the court. Specifically, he
32a
contends that his attorneys did not, and could not, make a
strategic or tactical decision to forego presenting life — history
mitigation evidence, because they misunderstood what the law
would permit as mitigating evidence. According to Alderman,
counsel thought that the only evidence the court would permit
to come before the jury in mitigation would be what is
traditionally referred to as “character” evidence. That is, the
court would allow witnesses to testify about Alderman’s good
reputation in the community, but not his difficult childhood and
the hurdles he faced as a result of his eye injury. Alderman
bases his assertion on Schiavone’s testimony. When asked
whether he had a tactical reason for not presenting the details
of Alderman’s life history, Schiavone responded that there is
“no tactical or strategic reason I can think of, just probably
didn’t ask thém.” Alderman v. Turpin, No. 94-V-720,
Evidentiary Hr’g at 256 (Super. Ci. of Butts County May 21,
1999). Upon further inquiry, Schiavone speculated that they
“were thinking that [the character evidence] was the extent that
we could go into at the time.” Id. at 257. Alderman seizes
upon this statement as proof that Schiavone and Jackson
believed that they were limited in their presentation of
mitigating evidence.
53 These responses must be viewed, however, in light of
both Schiavone’s guidance to the character witnesses and the
mitigating evidence counsel actually presented to the jury. For
example, Schiavone commented on what he told the character
witnesses in preparing them to testify: “I mean I assume I
wanted background information about Jack and about his
family and things of that nature. . . my recollection is that even
though it was a re-sentencing hearing the main thrust of our
approach was that — was to prove Jac’s innocence, that they
shouldn’t put an innocent man to death.” Furthermore, it
would be inaccurate to sever Schiavone’s statement from the
testimony the jury actually heard regarding Alderman’s sccial
33a
— history background. As related above, the jury heard about
Alderman’s childhood, eye injury, subsequent blindness, year
away from the family, and the father’s love. Significantly,
upon reviewing this testimony, the state court, in making its
credibility choices and finding the salient facts, had the
authority to discredit Schiavone’s statement — that defense
counsel believed that the law limited mitigation evidence to
“character” evidence — and to find, as it did, that “trial counsel
brought ‘to bear such skill and knowledge as will render the
trial a reliable adversarial testing process.’” Alderman v. Head,
No. 94-V-720 at 20 (Super. Ct. of Butts County Dec. 29, 1999).
54 The state habeas court was not unreasonable in deciding
that Alderman’s lawyers made a strategic decision to forego
the presentation of life — history evidence as fully as
Alderman’s habeas counsel claims the Constitution requires.
Under § 2254(d)(2), there is nothing in the record to suggest
that the state court engaged in unreasonable determinations of
fact. Considering Jackson and Schiavone’s testimony as a
whole, and the over — arching “lingering — doubt” strategy
counsel employed, we cannot say that the state court based its
decision on unreasonable determinations of fact in light of the
evidence before it.
55 Often inherent in the choice to pursue one strategy is a
latent decision not to engage in a different tactic or line of
defense. While Schiavone responded that he could not think of
a tactical reason for not pursuing more detailed responses from
his witnesses about Alderman’s life history, that is simply a
reflection of the cardinal emphasis on the lingering doubt
strategy. Even assuming that his attorneys were not fully
aware of the scope of permissible mitigating evidence,
Alderman would need to show that the approach they
ultimately took “would not have been used by professionally
competent counsel.” Harich v. Dugger, 844 F.2d 1464, 1470
34a
(11th Cir. 1988) (abrogated on other grounds). Given the state
court’s findings regarding counsel’s skill, knowledge, and
performance, coupled with the court’s finding that “counsel
performed both reasonably and effectively in their
representation of Alderman,” Alderman v. Head, No. 94-V-720
at 30 (Super. Ct. of Butts County Dec. 29, 1999), we cannot
say that Alderman was denied his constitutional right to
competent representation.
56 Addressing Strickland’s second prong, prejudice, the
state habeas court concluded that defense counsel’s failure to
introduce life — history evidence to the extent habeas counsel
contend the Constitution requires caused Alderman no
prejudice. The district court, reviewing that conclusion,
agreed. Assuming, for the sake of argument, that counsel’s
performance failed to meet Strickland’s first prong, we readily
conclude on the record before us that “counsel’s errors were
[not] so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” 466 U.S. at 687, 104 S.Ct. at 2064.
57 The judgment of the district court is accordingly
affirmed.
SO ORDERED.
35a
APPENDIX C
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 04-14595-P
JACK E. ALDERMAN
Petitioner-Appellant,
v.
WILLIAM TERRY, Warden,
Respondent-Appellee.
On Appeal from the United States District Court for the
Southern District of Georgia
BEFORE: TJOFLAT, ANDERSON and CARNES, Circuit
Judges.
BY THE COURT:
Appellant’s motion for reconsideration of the November 15,
2004 order denying appellant’s application for a certificate of
appealability isGRANTED with respect to the following issue:
Whether appellant was denied the effective assistance of
counsel at resentencing on the ground that counsel failed
36a
adequately to investigate, and present to the jury, appellant’s
social-history background.
With the exception of this issue, appellant’s certificate of
appealability is DENIED.
FILED: June 27, 2005
37a
APPENDIX D
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 04-14595-P
JACK E. ALDERMAN,
Petitioner-Appellant,
V.
DERRICK-SCHOFILED, Warden,
Respondent-Appellee.
On Appeal from the United States District Court for the
Southern District of Georgia
ORDER:
Appellant’s application for certificate of appealability is
DENIED.
s/ [illegible signatur
UNITED STATES CIRCUIT JUDGE
Scott L. Poff
Clerk, U.S. District Court
125 Bull Street, Rm 306
Savannah, GA 31401
November 15, 2004
Appeal Number: 04-14595-P
Case Style Jack E. Alderman v. Derrick Schofield
District Court Number 03-00028 CV
TO Scott L. Poff
CC Thomas H. Dunn
CC Susan V. Boleyn
CC Administrative File
39a
APPENDIX E
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
JACK E. ALDERMAN
Petitioner,
\ P
DERRICK SCHOFIELD, Warden,
Georgia Diagnostic Prison
Case no. CV403-028
ORDER
Before the Court is Petitioner’s Application for Certificate of
Appealability. (Doc. 46). Pursuant to 28 U.S.C. § 2253(c), an
appeai may not be taken in this matter unless the Court issues
a Certificate of Appealability. This certificate may issue only
if the Petitioner has made a substantial showing of the denial
of aconstitutional right. The Court finds that Petitioner has not
made a substantial showing of the denial of a constitutional
right. Accordingly, 2
IT IS HEREBY ORDERED thai Petitioner’s motion for
Certificate of Appealability is denied.
JOHN F. NAGLE
40a
UNITED STATES DISTRICT COURT
Dated: October 1, 2004
UNITED STATES DISTRICT COURT
Southern District of Georgia
Case Number: 4:03-cv-00028
Date Served: October 4, 2004
Served By: Nancy Y. Sutlive
Attorneys Served:
Thomas H. Dunn, Esq.
Susan V. Boleyn, Esq.
Mitchell Philip Watkins, Esq.
U.S. Court of Appeals
Copy placed in Minutes
Copy given to Judge
Copy given to Magistrate
4la
APPENDIX F
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
JACK W. ALDERMAN,
Petitioner,
Ve
DERRICK SCHOFIELD, Warden,
Georgia Diagnostic Prison
Respondent
Case No. CV403-028
ORDER
Before the Court is Petitioner's motion to amend the
judgment entered on June 19, 2004 (Doc. 41), denying
Petitioner's application for writ of habeas corpus. Specifically,
~ Petitioner argues that the Court misconstrued the nature of his
claims of ineffective assistance of counsel and that the Court
failed to consider evidence in the record which supported those
claims. Petitioner's memorandum in support of the instant
motion does not present any argument that the Court has not
already exhaustively considered in issuing its previous Orders
in this proceeding. Accordingly, Petitioner's motion to alter and
amend the judgment (Doc. 43) is DENIED.
So Ordered,
42a
s/ John F. Nangle
JOHN F. NANGLE
UNITED STATES DISTRICT JUDGE
Dated: August 3, 2004
Case Number: 4:03-cv-00028
Date Served: August 3, 2004
Served By:
Attorneys Served:
Thomas H. Dunn, Esq.
Susan V. Boleyn, Esq.,
Mitchell Philip Watkins, Esq.
____. Copy placed in Minutes
____. Copy given to Judge
Copy given to Magistrate
43a
APPENDIX G
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
Case No. CV405-028
JACK E. ALDERMAN,
Petitioner-Appellant,
Ve
WILLIAM TERRY, Warden,
Respondent-Appellee.
ORDER
Petitioner Jack E. Alderman, asserting two claims for relief,
petitions this Court for writ of habeas corpus under 28 U.S.C.
§ 2254. Thirty years ago, the heinous murder of Petitioner’s
wife occurred. Approximately twenty-nine years ago,
Petitioner was found guilty of this crime by a jury of his peers.
Both the original trial and the re-sentencing trial were presided
over by one of the most respected trial judges in this part of the
country. Petitioner has twice been sentenced to death by a
jury.
BACKGROUND
I. Facts
The following statement of facts is taken from Alderman v.
Zant, 22 F.3d 1541 (11th Cir. 1994).
44a
The Petitioner, Jack E. Alderman (“Alderman”), and his
wife, Barbara Alderman (“Mrs. Alderman”), lived in an
apartment in Chatham County, Georgia. Alderman was
employed as an assistant manager at the local Piggly Wiggly
supermarket. Mrs. Alderman was employed in the Tax
Assessor’s office for the City of Savannah. In conjunction
with her employment, Mrs. Alderman maintained a $10,000.00
life insurance policy that paid double benefits in the event of
accidental death. Mrs. Alderman also had another life
insurance policy in the amount of $25,000.00 which named her
mother as beneficiary.
Alderman met John Arthur Brown (“Brown”), later
convicted as an accessory to Mrs. Alderman’s murder, when
both Alderman and Brown were employed in the vehicle
maintenance department for the City of Savannah. Brown
testified that on September 19, 1974, Alderman phoned Brown
and asked him to meet him at the Piggly Wiggly supermarket.
Brown stated that during this meeting Alderman asked Brown
to kill Mrs. Alderman in exchange for half the insurance
proceeds. Brown, although claiming not to take Alderman
seriously, accepted the proposition.
On Saturday, September 21, 1974, Alderman asked Brown
to come to his apartment. When Brown arrived, Alderman
handed Brown a twelve-inch crescent wrench and instructed
Brown to go into the bedroom and kill Mrs. Alderman.
Testimony indicates that Brown was initially reluctant, but
agreed to strike Mrs. Alderman when persuaded by the gun
wielding Alderman. Brown entered the dining room and struck
Mrs. Alderman in the head with the wrench: Mrs. Alderman
cried out and ran into the living room where she confronted her
husband. Alderman tackled Mrs. Alderman, then assisted by
Brown, placed his hands over Mrs. Alderman's nose and mouth
unti! she was unconscious.
45a
Alderman and Brown carried Mrs. Alderman’s limp body
to the bathroom and placed it in the bathtub. Alderman started
to fill the tub while Brown cleaned the blood stains from both
the living and dining rooms. Alderman and Brown changed
clothes and left the apartment for several hours. The two men
, went to the Piggly Wiggly supermarket where Alderman
borrowed $100.00. Alderman and Brown then went to two
local Savannah bars. At some time during the evening
Alderman gave Brown the $100.00.
Alderman and Brown returned to the apartment around
10:00 p.m., removed Mrs. Alderman’s body from the bathtub
and wrapped it in a green quilt. The two men carried the body
to Alderman’s 1974 Pontiac and placed it in the trunk. Brown
drove Alderman’s car as Alderman followed on his
motorcycle. Alongside acreek in Rincon, Georgia, Brown and
Alderman removed the body from the trunk and placed it in the
driver’s seat. At Alderman’s direction, Brown reached in the
driver’s window and released the emergency brake allowing
the car to roll into the creek. The car stopped halfway into the
creek. Again at Alderman’s direction, Brown opened the car
door, pulled Mrs. Alderman’s body halfway out and allowed
her face to fall into the creek. The two men removed the green
quilt and the rubber trunk mat from the car and fled the scene
on Alderman’s motorcycle.
Later that evening, on September 21, 1974, Randy Hodges
(“Hodges”) and Terry Callahan (“Callahan”) were driving
home on Baker Hill Road and Highway 131. As they turned
onto Highway 131 and approached Dasher’s Creek, they
noticed a car in the creek. Hodges jumped out, saw that there
was a woman in the car and sent Callahan to Lamar Rahn’s
house to call for help. Effingham County Sheriff Lioyd
Fulcher (“Fulcher”) responded to the call. Upon his arrival at
the scene, Fulcher found the victim’s car in the water adjacent
46a
to the bridge. Fulcher noticed no apparent physical damage to
the car. He ordered Mrs. Alderman’s body to be removed from
the car and taken to the hospital. Fulcher observed that there
were no skid marks from the car but that motorcycle tracks
were apparent in the area. Fulcher also noticed blood stains on
the seat of the car and that the trunk mat was missing.
At the direction of Fulcher, Garden City police officer J.D.
Crosby (“Crosby”) went to Alderman’s apartment only to find
it locked. Crosby later returned to the apartment at
approximately 2:30 a.m. and found Alderman there with a
woman. Crosby informed Alderman that his wife had been
involved in a traffic accident, and asked him to accompany
Effingham County authorities to the hospital. Georgia Bureau
of Investigation Agent H.H. Keadle (“‘Keadle’’) was present at
the Effingham County hospital. Keadle and Fulcher noticed
red/brown stains in the seat and crotch of Alderman’s pants and
on his belt. At that time, Alderman’s clothes were taken from
him.
Keadle’s investigation confirmed Crosby’s findings at the
accident scene. Keadle also recovered a stained portion of a
green rug and Alderman’s motorcycle helmet, which had been
removed from the Alderman’s apartment by Mrs. Alderman’s
mother. Alderman’s father, Jack Alderman, Sr., also gave the
police the twelve-inch crescent wrench that he had removed
from Alderman’s apartment.
Forensic Serologist Elizabeth Quarles, of the Georgia State
Crime Laboratory, examined the blood found on Alderman’s
clothes. The blood type was consistent with Mrs. Alderman’s
blood. An examination of the vehicle revealed one palm print
and four fingerprints which were stipulated as Alderman’s.
Brown’s fingerprints, however, were not found on the car.
47a
Dr. Charles Sullinger (“Dr. Sullinger’) performed the
autopsy upon Mrs. Alderman’s body. Dr. Sullinger concluded
that the laceration on the back of Mrs. Alderman’s head was
inflicted by a blunt instrument. Dr. Sullinger also concluded
that because there existed only a small amount of blood in the
car, the blow to Mrs. Alderman’s head did not occur as a result
of the accident. Dr. Sullinger found no evidence of any
abnormalities in the heart, no scratches on the forearms and no
evidence of strangulation. Dr. Sullinger concluded that the
liquid in Mrs. Alderman’s lungs revealed that Mrs. Alderman
died as a result of asphyxia due to drowning.
Keadle’s investigation led him to Brown. Brown
eventually gave a statement incriminating himself and
Alderman. At trial, Alderman testified on his own behalf and
denied that he killed his wife. [footnote omitted]. Alderman
testified that on the night of September 21, 1974, he and his
wife had an argument and that he left the apartment alone. He
allegedly took a bus to Savannah where he spent some time at
two local bars. Alderman testified that he returned home at
approximately 10:00 p.m. but his wife was not at home.
Alderman decided to go to Rincon, Georgia to see if Mrs.
Alderman was at her grandparent’s home.
Alderman testified that on his way to Rincon, he observed
his car on the side of the bridge at Dasher’s Creek. Alderman
stopped his motorcycle and went to the car where he
discovered his wife’s body. Alderman stated that he picked up
Mrs. Alderman’s head and placed it in his lap. Upon hearing
a noise, Alderman fled the scene in shock and fear. Alderman
allegedly forgot about his wife’s body, drove to Savannah and
returned to a local bar. Alderman then went to Johnny
Ganem’s for breakfast with friends. While at breakfast,
Alderman offered Gerlina Carmack (the female present in the
Alderman’ s apartment when Officer J.D. Crosby arrived) a ride
48a
home. Alderman had allegedly stopped at his apartment to
pick up a jacket when the police arrived and took him to the
hospital where he identified his wife’s body.
Alderman testified that he did not know why he had left his
wife’s body in the creek; that he recalled nothing of his trip
back to Savannah; and, the fact that his wife was dead had
completely left his mind. [Alderman] testified that he first
realized the full facts surrounding his wife’s death after being
treated by a psychiatrist who was able to refresh his memory as
to the events surrounding her death. He further testified that
after being treated by the psychiatrist he realized that fear had
caused him to leave his wife’s body in the creek because he
knew her family would blame him for her death.
II. Procedural! History
On June 14, 1975, Petitioner was convicted in the Superior
Court of Chatham County for killing his wife, and then he was
sentenced to death. Following his conviction, he appealed to
the Georgia Supreme Court, which denied his appeal on June
27, 1978. Certiorari was later denied by the United States
Supreme Court on November 27, 1978. He then filed for state
habeas relief in the Supenor Court of Chatham County,
Georgia. In June 1979, his state habeas corpus application was
denied, after a hearing that did not restrict counsel in the
presentation of evidence or argument. On September 6, 1979,
the Georgia Supreme Court denied Petitioner a certificate of
probable cause to appeal. The United States Supreme Court
denied certiorari on February 19, 1980, and denied a rehearing
on March 19, 1980.
Petitioner then filed an application for habeas relief in
federal district court on June 27, 1980. This first round of
federal habeas appeals culminated in 1983 when the Fifth
Circuit, Unit B, acting en banc, granted a new sentencing trial,
49a
which began in March 1984. After his re-sentencing trial,
Petitioner was again sentenced to death on April 1, 1984. He
then filed a motion for new trial and an amendment thereto,
which were denied in an order filed on August 27, 1984.
Petitioner directly appealed his death sentence to the Georgia
Supreme Court, which affirmed his new death sentence on
February 28, 1985. On October 15, 1985, the United States
Supreme Court denied certiorari and later denied a rehearing
on November 18, 1985.
Petitioner then began a second round of habeas appeals in
the state and federal courts with the same attorneys who
represented him at the re-sentencing trial. He filed a state
habeas petition in the Superior Court of Butts County on
February 6, 1986. An amended habeas petition was filed June
16, 1987, and a second amended habeas petition was filed June
25, 1987. Following an evidentiary hearing on June 29, 1987,
the state habeas court dismissed the petition on September 10,
1987, holding that all of Petitioner’s claims were barred from
review because of procedural default. On October 28, 1987,
the Georgia Supreme Court denied the application for a
certificate of probable cause to appeal. The United States
Supreme Court subsequently denied certiorari on March 7,
1988, and denied a rehearing on April 25, 1988.
Petitioner then filed a petition for habeas relief in federal
district court on June 23, 1988. The federal petition was
denied at the trial level on June 6, 1989, without an evidentiary
hearing. Subsequent to the entry of judgment, both Petitioner
and the State filed motions to alter and amend. On June 22,
1989, the District Court entered an order denying Petitioner’s
motion, but did not rule on the State’s motion. During the
pendency of the State’s motion, Petitioner filed a notice of
appeal. On August 10, 1990, the Eleventh Circuit dismissed
the appeal of Petitioner for lack of jurisdiction. On remand, the
50a
District Court entered an order on September 20, 1990,
granting the State’s motion to alter and amend in part and
denying the motion in part.
Petitioner then filed an appeal challenging the decision of
the District Court, while at the same time challenging the
court’s jurisdiction to consider his own appeal due to the
failure to rule on an issue. On December 27, 1991, the
Eleventh Circuit dismissed the appeal for lack of jurisdiction
because the District Court failed to rule on Petitioner’s claim
regarding the guilt-phase jury, but the Eleventh Circuit did find
that the District Court had jurisdiction to hold an evidentiary
hearing on Petitioner’s Brady/Giglio claims, and ordered the
District Court to hold such a hearing. After an evidentiary
hearing on May 18, 1992, the District Court found the
Brady/Giglio claims to be procedurally barred, and thereby
dismissed the petition on June 23, 1992. The Eleventh Circuit
affirmed the ruling on April 14, 1994, and denied a rehearing
en banc on July 12, 1994. The United States Supreme Court
again denied certiorari on December 12, 1994, and denied a
rehearing on February 21, 1995.
Petitioner began a third round of habeas action in the
Superior Court of Butts County on December 22, 1994,
challenging his new death sentence on two grounds:
ineffective assistance of counsel during the re-sentencing trial
and ineffective assistance of counsel during the appeal from the
re-sentencing trial. The State filed its answer on January 13,
1995. For reasons unknown to the Court, no action apparently
occurred in Petitioner’s case in the state court system until
1999.
On March 29, 1999, an amended habeas petition was filed
in the state court. An evidentiary hearing was conducted in the
state habeas court on May 5 and 6, 1999, ard Petitioner’s
claims were denied on December 29, 1999. Petitioner’s
5la
application for a certificate of probable cause to appeal was
denied by the Georgia Supreme Court on January 10, 2002. On
October 21, 2002, the United States Supreme Court denied
certiorari, and Petitioner then filed this action in this Court on
February 10, 2003.
The foregoing reads like a judicial nightmare. The
procedural history of this case is an embarrassment to our
judicial system, both state and federal. An exceedingly
voluminous record of all papers related to this case has been
filed herein. Summarizing, the procedural background is as
follows:
1. Mrs. Alderman, the victim in this case, was killed on
September 21, 1974.
2. On June 14, 1975, her husband, Petitioner, was
convicted for killing her and was then sentenced to death.
3. Following conviction, Petitioner appealed to the
Georgia Supreme Court, which appeal was denied on June 27,
1978.
4. In 1978, the United States Supreme Court denied
certiorari.
5. Petitioner filed his request for state habeas relief, which
application was denied in 1979 after a full hearing by the trial
court.
6. Later in 1979, the Georgia Supreme Court denied a
certificate of probable cause to appeal.
7. The United States Supreme Court again denied
certiorari on February 19, 1980.
52a
8. After his first round of federal habeas appeals,
Petitioner was granted a re-sentencing trial by the Fifth Circuit,
Unit B, in 1983. On remand, a re-sentencing trial ensued and
Petitioner was again sentenced to death on April 1, 1984.
9. In 1985, the Georgia Supreme Court affirmed his death
sentence, and the United States Supreme Court again denied
certiorari.
10. In 1986, Petitioner began another round of habeas
appeals in state court which ultimately were denied, with the
Georgia Supreme Court denying his application for a certificate
of probable cause to appeal.
11. The United States Supreme Court again denied
certiorari in 1988.
12. In 1988, Petitioner began his second federal habeas
appeal which ultimately was denied by the District Court in
1992 and affirmed by the Eleventh Circuit in 1994.
13. The United States Supreme Court again denied
certiorari on December 12, 1994.
14. In December 1994, Petitioner began a third round of
habeas action in the state court. The state field its answer in
January 1995, and the record is unclear as to what happened in
this matter until March 1999.
15. In March 1999, an amended petition was filed. An
evidentiary hearing was conducted in the state court, and the
state court denied Petitioner’s claims in December 1999.
16. Petitioner’s application for a certificate of probable
cause to appeal was denied by the Georgia Supreme Court in
2002, and, later in 2002, the United States Supreme Court
denied certiorari in this case for the SIXTH time.
a
53a
17. In February 2003, the petition herein was filed.
FEDERAL HABEAS CLAIMS
I. AEDPA standards
Section 2254, as amended by the Anti-Terrorism and
Effective Death Penalty Act (““AEDPA”) in 1996, establishes
a more deferential standard of review of state habeas
judgments. Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir.
2001). The Court considers a state habeas court’s factual
determinations under “a highly deferential standard of review.”
Id. The state court’s factual determinations are presumed to be
correct, and Petitioner can overcome this presumption only by
clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Federal habeas relief for a claim adjudicated on the merits in
State court is appropriate only where the state court’s judgment:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.
| 28 U.S.C. § 2254(d).
A state court’s decision is contrary to clearly established
Federal law if the state court arrives at a conclusion opposite to
that of the U.S. Supreme Court on a question of law or if the
State court decides a case differently than the U.S. Supreme
Court has on a set of materially indistinguishable facts.
Williams v. Taylor, 529 U.S. 362, 412-413, 120 S. Ct. 1495,
1523, 146 L. Ed. 2d 389 (2000). Even if a federal court might
have reached a different result relying on the same law, the
state court’s decision that applies the correct legal rule will
54a
withstand challenge unless it is “substantially different’ from
the relevant Supreme Court precedent.” Fugate, 261 F.3d at
1216 (quoting Williams, 529 U.S. at 405, 120 S. Ct. at 1519).
Under the “unreasonable application” clause, the Court may
grant habeas relief “if the state court identifies the correct
governing [U.S. Supreme Court] legal principle . . . but
unreasonably applies that principle to the facts of the prisoner’s
case.” Williams, 529 U.S. at 413, 120 S. Ct. at 1523.
II. Federal ineffectiveness standards
Claims of ineffective assistance of counsel are governed by
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984). To prevail on an ineffective assistance
claim, a habeas petitioner must show (1) that “counsel’s
performance was deficient” because it “fell below an objective
standard of reasonableness[.]” and (2) that “the deficient
performance prejudiced the defense.” Id. at 687-88. .
Judicial scrutiny of counsel’s performance should be highly
deferential, and “a court must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must oversee the
presumption that, under the circumstances, the challenged
action ‘might be considered sound trial strategy.” Id. at 689
(quoting Michel v. Louisiana, 350 U.S. 91, 101, 76S. Ct. 158,
164, 100 L. Ed. 83 (1955)). “This presumption is even stronger
when the reviewing court is examining the performance of an
experienced trial counsel.” Fugate, 261 F.3d at 1216. “In
order to show that counsel’s performance was unreasonable,
the petitioner ‘must establish that no competent counsel would
have taken the action that his counsel did take.’’’ Id. at 1217
(quoting Chandler v. United States, 218 F.3d 1305, 1315 (11th
Cir. 2000)).
5Sa
To establish prejudice, a petitioner “must show that there
is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
Il. Claim One - Ineffective assistance of re-sentencing
counsel
A. Substance and background of claim
In Claim One, Petitioner asserts that he was denied
constitutionally effective assistance of counsel at the capital re-
sentencing trial in violation of the Sixth and Fourteenth
Amendments to the United States Constitution. He alleges that
his counsel acted unreasonably in failing to investigate his
social history and background and in failing to adequately
investigate, prepare, and confront the State’s witness, John
Brown. He further alleges that his counsel’s deficient
performance was the result of a fundamental misunderstanding
of the law, an unreasonable reliance upon prior counsel’s
investigation and a failure to conduct a_ reasonable
investigation.
Petitioner takes issue with his counsel’s decision to present
a lingering doubt defense and argues that because of this
defense choice, his counsel failed to effectively investigate and
present mitigating evidence. Alleging that his counsel
misunderstood the law regarding the scope of mitigation
evidence and thus, failed to uncover and present readily
available mitigation evidence, Petitioner has submitted to the
Court several affidavits of family and friends to show
mitigation evidence that was available to, but not presented by,
his re-sentencing counsel. Petitioner argues that his counsel
56a
ultimately adopted the lingering doubt defense based upon their
misunderstanding of the law.
B. Discussion
The state habeas court, after holding an evidentiary hearing,
denied habeas relief as to Petitioner’s claim of ineffectiveness
of resentencing trial counsel. After correctly identifying
Strickland as the controlling legal authority concerning
ineffective assistance of counsel claims, the state habeas court
made lengthy factual findings and analyzed them under the
Strickland standard. “When the state habeas court has held an
evidentiary hearing, as in this case, the findings of fact by the
state court are generally presumed to be correct unless clearly
erroneous.”: Conklin v. Schofield, 366 F.3d 1191, 1199-1200
(11th Cir. 2004). As the factual findings of the state habeas
court are fully supported in the record and Petitioner has not
shown that they are clearly erroneous, this Court finds that the
following state habeas court’s factual findings are correct.
At the time of his appointment, [George Tem] Jackson had
been a practicing attorney for twelve years and had practiced
mostly criminal defense and general practice for nine to ten
years. Also at the time of appointment, Mr. Jackson had
previously handled twelve to eighteen murder cases with eight
or ten going to trial. Four of the murder cases handled by Mr.
Jackson were death penalty cases. At the time of his
representation of Alderman, Mr. Jackson had handled more
than a dozen non-death penalty appeals and had handled five
or six death penalty cases that had been remanded to the trial
court for resentencing or new trial hearings . . . . [Michael]
Schiavone had practiced law for four years, and Alderman’s
case was the second death penalty case in which he had been
involved.
S7a
State Habeas Order (“S.H.O.”), December 29, 1999 Order,
94-v-720, at 18 (citations to record omitted) .
Mr. Jackson spoke with Alderman many times about his
case prior to trial and saw him more than twelve times in
person. Alderman furnished Mr. Jackson with the names of
potential fact and character witnesses, which trial counsel
investigated. In fact, it was the practice of Mr. Schiavone to
follow-up as many leads on potential witnesses as he
reasonably could. Mr. Jackson also met with Alderman on a
number of occasions for the purpose of preparing Alderman for
his own testimony.
S.H.O. at 19 (citations to record omitted).
Petitioner’s counsel requested and were granted funds to
hire two investigators and a forensic pathologist. S.H.O. at 18.
Bills from the investigators reveal that they tried to locate and
interview many witnesses including John Edward Sato. S.H.O.
at 20. Mr. Jackson adopted a trial strategy of establishing
residual doubt-that even though Petitioner had already been
found guilty, the jury should not return a death sentence
because there was still residual doubt as to his culpability and
' involvement in the crime. S.H.O. at 19. Mr. Jackson sought to
establish this by directly attacking the State’s case, presenting
witnesses to show that Petitioner was not violent, and showing
that Petitioner was well respected and trusted in the
community, and therefore, would not have committed this type
of crime. Id.
To show that Petitioner was incapable of committing the
murder,
Mr. Jackson called many witnesses who testified that
Alderman was not a violent person and would never have
committed the crime of which he was accused.... character
58a
witnesses, Mr. Jackson presented witnesses in addition to who
testified that, if any life insurance policies had existed at the
time of the murder, they had lapsed prior to Mrs. Alderman’s
death. In addition to these numerous witnesses, Alderman
testified on his own behalf Alderman told that jury about his
eye injury and its effects on his life, that he had a normal
childhood which revealed that he was an intelligent, likeable
child and young adult who was conscientious about his work.
S.H.O. at 21-22 (citations to record omitted).
The state habeas court found that Alderman also testified
that on the night of his wife’s murder,
[he] returned home and discovered that Mrs. Alderman had
not returned, and he rode his motorcycle to Mrs. Alderman’s
family’s home to apologize to her for the argument [earlier that
night]. As he was driving, he came upon his car jutting up the
embankment, partially submerged in Dasher’s Creek.
Alderman testified that he panicked and left the area.
Alderman vehemently denied having anything to do with the
death of his wife.
S.H.O. at 22-23 (citations to record omitted).
The state habeas court additionally found that Mr. Jackson
vigorously and thoroughly cross-examined John Brown stating
that:
Mr. Jackson was able to show that Brown had an extensive
past history with drug abuse, including during his service in the
military, had psychotic episodes, that Brown stole his own
medical records from the military to keep others from learning
about his drug use and schizophrenia, and at times had
difficulty distinguishing what was real and what was not real.
In addition, Mr. Jackson got Brown to admit that he began
using LSD and marijuana again after he returned to Savannah
59a
following his discharge from the service, that he experienced
drug-induced blackouts, and that he drank heavily. It was
revealed that, at the time of the murder, Brown was living with
a girlfriend, was separated from his wife, and was supporting
his drug habit rather than supporting his wife and four children.
Mr. Jackson cross-examined Brown about his relationship
with the victim. Brown admitted that he thought that the
victim was standoffish and thought she was too good for him.
Mr. Jackson impeached Brown with his prior inconsistent
testimony concerning his drug use around the victim’s parents
and his prior inconsistent testimony concerning why Alderman
wanted Brown to kill the victim. On cross-examination, Brown
admitted that he had thought of ways to kill the victim, and that
he had the victim drive him to Bloomingdale where he
considered killing her during the trip and never warned her that
her husband was planning to kill her. Mr. Jackson got Brown
to admit that he could have walked out of the apartment
without killing Mrs. Alderman after Alderman gave him the
wrench, and that he was impaired by drugs and alcohol at the
time. Brown also admitted that Alderman threatened to shoot
both of them, but he never saw Alderman in possession of a
gun. Finally, Mr. Jackson cross-examined Brown on any deals
or understandings that he may have had with the district
attorney in exchange for his testimony, including his request to
be transferred to another prison to be with another prisoner.
S.H.O. at 21 (citations to record omitted).
The state court found that:
In his closing argument, Mr. Jackson argued to the jury that
the prosecutor’s entire case was based on Brown’s testimony.
Mr. Jackson attacked the credibility and veracity of Brown, and
he poked holes in the theory that Alderman killed Mrs.
Alderman to collect insurance money. Most importantly, Mr.
60a
Jackson focused on the lack of evidence and reasonable doubt,
and he argued that the jury should not sentence Alderman to
death if they were not sure that Alderman had actually
committed the crime regardless of the fact that he had already
been convicted of it - the residual doubt theory.
S.H.O. at 23 (citations to record omitted).
Petitioner’s counsel filed Brady and Giglio motions
concerning Brown, but these did not reveal any deals,
agreements, or understandings. S.H.O. at 20. Because they
never had any information concerning a deal between Brown
and the prosecutor, Petitioner’s counsel] did not raise a
Brady/Giglio claim on direct appeal. S.H.O. at 20.
1. Applying AEDPA
After applying the Strickland standard, the state habeas
court found that:
Trial counsel’s strategy to show “residual doubt,” was a
reasonable, professional decision in light of information and
facts that were available to trial counsel at the time, especially
since the prosecutor’s case rested primarily on the testimony of
John Brown.
S.H.O. at 20-21.
As the jury at the re-sentencing trial was not the same jury
who found Alderman guilty of the crime, there was a
possibility that this jury, who heard the entire guilt/innocence
evidentiary presentation, would believe that some doubt existed
as to Alderman’s guilt. It was reasonable for Mr. Jackson to
believe that presenting evidence that Alderman’s mother had
left the family when he was a child and evidence about his
61a
vision prob:.;. would not sway a jury to impose a life
sentence instead of death. In fact, in order to effectively
present a penalty phase defense of mercy based on sad
circumstances of his childhood and adolescence, Alderman
may have had to admit to committing the crime and then ask
the jury to spare him the death penalty due to his difficult
childhood. Because Alderman maintained his innocence
throughout the first trial and the re-sentencing trial, such a
strategy would have been incompatible with his testimony;
therefore, the residual doubt strategy used by Mr. Jackson was
a reasonable one based on the facts and circumstances as Mr.
Jackson knew them to be at that time.
S.H.O. at 23.
Alderman alleges that trial counsel failed to conduct an
adequate pretrial investigation into Alderman’s life and
background to uncover and present to the jury evidence in
mitigation. As discussed above, trial counsel conducted a
thorough background investigation of Alderman with the
assistance of two investigators. Furthermore, trial counsel’s
decision to present a residual doubt theory, instead of pursuing
a theory based on a supposed sad and difficult childhood,
which Alderman did not testify to at trial, was a reasonable,
strategic decision.
Alderman alleges that trial counsel failed to comprehend
the scope of potential mitigating evidence and thereby failed to
present ample evidence in mitigation that was available. As
discussed extensively above, trial counsel presented substantial
evidence in mitigation and had a reasonable strategy for not
presenting evidence of Alderman’s mother leaving the family
and of his vision problems.
62a
S.H.O. at 25.
The state habeas court then concluded that:
the guiding principles set forth by the United States
Supreme Court and adopted by the Georgia Supreme Court,
i.e., according a strong presumption of effectiveness to trial
counsel’s conduct, viewing trial counsel’s representation under
the totality of the circumstances and from the perspective of
trial counsel at the time of trial, and presuming the
reasonableness of judgment calls and trial strategy, this court
concludes that trial counsel performed both reasonably and
effectively in their representation of Alderman. Alderman has
failed to establish that he received ineffective assistance of trial
counsel under either prong of the Strickland standard and relief
on this claim is denied on the merits.
S.H.O. at 30.
This Court finds that the state habeas court correctly
applied federal standards in finding that re-sentencing trial
counsel performed both reasonably and effectively in their
representation of Petitioner. Further, this Court finds that the
state habeas court’s determinations regarding re-sentencing
trial counsel’s effectiveness were not based on an unreasonable
determination of the facts in light of the evidence presented.
2. On the merits
Even if AEDPA did not require the Court to defer to the
state habeas court’s adjudication in this instance, the Court
finds that when reviewed de novo, Petitioner’s ineffectiveness
claim fails. “Under the totality of the circumstances test [of
Strickland, the Court] asks ‘whether some reasonable lawyer
at the trial could have acted, in the circumstances, as defense
counsel acted at trial,’ rather than asking what most ‘good’
lawyers would have done.” Conklin, 366 F.3d at 1204 (quoting
63a
Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995). “In
evaluating counsel’s performance, [the Court] ‘always avoid[s]
second guessing with the benefit of hindsight’ and ‘allow[s]
lawyers broad discretion to represent their clients by pursing:
their own Strategy.’” Fugate, 261 F.3d at 1223 (quoting White
v. Singletary, 972 F.2d 1218, 1220, 1221 (11th Cir. 1992).
Re-sentencing counsel’s decision to forego some mitigation
evidence in favor of presenting a residual doubt defense is a
reasonable strategic decision. The Eleventh Circuit has found
that a lingering doubt defense at sentencing can be a reasonable
one and is perhaps the most effective. Chandler v. United
States, 218 F.3d 1305, 1320 (11th Cir. 2000). In Tarver v.
Hopper, 169 F.3d 710 (11th Cir. 1999), the Eleventh Circuit
noted:
“Residual doubt” over the defendant’s guilt is the most
powerful “mitigating” fact—[The study] suggests that the best
thing a capital defendant can do to improve his chances of
receiving a life sentence has nothing to do with mitigating
evidence strictly speaking. The best thing he can do, all else
being equal, is to raise doubt about his guilt.
169 F.3d at 115-16 (quoting Stephen P. Garvey,
Aggravation and Mitigation in Capital Cases: What do Jurors
Think?, 98 Column L. Rev. 1538, 1563 (1998)).
“([C]Jounsel need not present all available mitigating
circumstance evidence in order for counsel’s conduct to be
deemed effective at the sentencing stage. Indeed, ‘the Supreme
Court and this Court in a number of cases have held counsel’s
performance to be constitutionally sufficient when no
mitigating circumstance evidence at all was introduced, even
though such evidence...was available.’”” Conklin. 366 F.3d at
1204 (quoting Waters, 46 F.3d at 1511).. “Considering the
realities of the courtroom, more is not always better. Stacking
64a
defenses can hurt a case. Good advocacy requires ‘winnowing
out’ some arguments, witnesses, evidence, and so on, to stress
others.” Chandler, 218 F.3d at 1319 (citations omitted).
“Which witness, if any, to call, and when to call them, is the
epitome of a strategic decision, and it is one that we will
seldom, if ever, second guess.” Waters, 46 - F.3d at 1512.
A lawyer presenting a lingering doubt defense could
reasonably fear that additional character witnesses
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