Record and brief — Magwood v. Patterson
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DOCKET
No. 09-158
Title
Docketed:
Lower Ct:
Case Nos:.:
SUPREME COURT
*** CAPITAL CASE ***
Billy Joe Magwood, Petitioner
Vv.
Tony Patterson, Warden, et al.
August 7, 2009
United States Court of Appeals for the Eleventh Circuit
(07-12208)
Decision Date: January 23, 2009
Rehearing
Denied:
Questions
Presented
~~~Date~~~
Jun 10 2009
Jun 15 2009
Aug 4 2009
Sep 9 2009
Oct 8 2009
Oct 21 2009
Oct 21 2009
Nov 9 2009
Nov 16 2009
Nov 23 2009
Nov 23 2009
Dec 2 2009
Dec 17 2009
Dec 22 2009
March 24, 2009
Application (08A1116) to extend the time to file a petition for a writ of certiorari
from June 22, 2009 to August 7, 2009, submitted to Justice Thomas.
Application (08A1116) granted by Justice Thomas extending the time to file
until August 7, 2009.
Petition for a writ of certiorari filed. (Response due September 8, 2009)
Order extending time to file response to petition to and including October 8,
2009.
Brief of respondent Grantt Culliver, Warden in opposition filed.
DISTRIBUTED for Conference of November 6, 2009.
Reply of petitioner Billy Joe Magwood filed. (Distributed)
DISTRIBUTED for Conference of November 13, 2009
Petition GRANTED limited to Question 1 presented by the petition.
Motion to appoint counsel filed by petitioner Billy Joe Magwood.
Motion for leave to proceed further herein in forma pauperis filed by petitioner
Billy Joe Magwood.
Motion DISTRIBUTED for Conference of January 8, 2010.
Motion to dispense with printing the joint appendix filed by petitioner Billy Joe
Magwood.
The time within which to file the joint appendix and petitioner's brief on the
merits is extended to and including January 4, 2010
Dec 29 2009 Consent to the filing of amicus curiae briefs in support of either party or neither
Jan 4 2010
Jan 4 2010
party received from counsel! for the respondents in this case
SET FOR ARGUMENT ON Wednesday, March 24, 2010
Brief of petitioner Billy Joe Magwood filed.
Jan 11 2010
Jan 11 2010
Jan 11 2010
Jan 11 2010
Jan 22 2010
Feb 2 2010
Feb 32010
Feb 42010
Feb 4 2010
Feb 10 2010
Mar 3 2010
Mar 5 2010
Mar 24 2010
Motion to dispense with printing the joint appendix filed by petitioner
GRANTED.
Motion for leave to proceed in forma pauperis filed by petitioner GRANTED.
Motion to appoint counsel filed by petitioner GRANTED. Jeffrey L. Fisher.
Esquire, of Stanford, California, is appointed to serve as counsel for the
petitioner in this case.
Brief amici curiae of National Asseciation of Criminal Defense Lawyers, et al.
filed.
CIRCULATED.
Record from U.S.C.A. for 11th Circuit is electronic.
Brief of respondents Tony Patterson, Warden, et al. filed. (Distributed)
Record from U.S.D.C. for Middle District of Alabama. (2 boxes)
Additional record received from U.S.C.A. for 11th Circuit. (1 envelope)
Brief amici curiae of South Carolina, et al. filed. (Distributed)
Additional Record received from U.S.D.C. for Middle District of Alabama. (1
box) There are sealed documents in this case.
Reply of petitioner Billy Joe Magwood filed. (Distributed)
Argued. For petitioner: Jeffrey L. Fisher, Stanford, Cal. (Appointed by this
Court.) For respondents: Corey L. Maze, Solicitor General, Montgomery, Ala.
PETITION
FOR
WRIT OF
CERTIORARI
Suprene Cout, U.S.
No. 99-9 9 - 15 8 AUG 4- 2009
INTHE OFFICE OF THE CLERK
Supreme Court of the H aa
BILLY JOE MAGWOoopn,
Petitioner,
Wa
GRANTT CULLIVER,
Respondent.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Eleventh Circuit
PETITION FOR A WRIT OF CERTIORARI
James A. Power Jr. Jeffrey L. Fisher
Marguerite Del Valle Counsel of Record
POWER DEL VALLE LLP Pamela S. Karlan
233 West 72nd Street STANFORD LAW SCHOOL
New York, NY 10023 SUPREME COURT
LITIGATION CLINIC
Thomas C. Goldstein 559 Nathan Abbott Way
AKIN, GUMP, STRAUSS, Stanford, CA 94305
HAUER & FELD LLP (650) 724-7081
1333 New Hampshire
Ave., NW Amy Howe
Washington, DC 20036 Kevin K. Russell
(202) 887-4000 HOWE & RUSSELL, P.C.
7272 Wisconsin Ave.
Bethesda, MD 20814
——————————————— ————————————————EEeEeEeE———EEEeeeE——eeeee
WILSON-EPES PRINTING CO., INC. — (202) 789-0096 ~— WAasHinGTON, D.C. 20002
CAPITAL CASE
QUESTIONS PRESENTED
1. When a person is resentenced after having
obtained federal habeas relief from an _ earlier
sentence, is a claim in a federal habeas petition
challenging that new sentencing judgment a “second
or successive” claim under 28 U.S.C. § 2244(b) if the
petitioner could have challenged his previously
imposed (but now vacated) sentence on the same
constitutional grounds?
2. Did petitioner’s attorney provide ineffective
assistance of counsel warranting federal habeas
relief by failing to raise an argument at petitioner’s
resentencing proceedings that would have made
clear that petitioner was constitutionally ineligible
for the death penalty?
il
TABLE OF CONTENTS
UE BEND FRE BED 0.0 cc sscccccccrscssecesecescseccssesceses i
Se eS I viccicsvnscncecnsencsccinerssserssesseey iii
PETITION FOR A WRIT OF CERTIORARI.............. 1
ID cs vincsincnn cnnennsunichiidaddiadensinndiunmmnipenenns 1
atic netinadbansiahinaiaienniannincsnonnannsaneions 1
RELEVANT CONSTITUTIONAL AND
ER Be TED ctesciccesesecisccevesinssenessenesenes 1
STATENS OF TEES CABZ..........cccccccccscscesssccesesssees 3
REASONS FOR GRANTING THE WRIT................ 10
I. The Eleventh Circuit’s Construction of What
Constitutes a “Second or Successive” Habeas
Petition Holding Warrants Review .................... 11
A. The Holding is Erroneous............................. 11
B. The Holding Creates a Circuit Split ............ 14
C. The Holding Has Pernicious Consequences
for the General Administration of Habeas
I hci ceal achiiincil ata leiacieidhldadealhiaiasebliaidaaiipentite 17
II. The Eleventh Circuit’s Ineffective Assistance
Holding Warrants Review. ..................ccecseseceeeeees 20
PY ini iti cist ieniealiniiinassnbedseneteninten 22
APPENDIX A, Opinion of the Eleventh Circuit....... la
APPENDIX B, Opinion of the District Court ......... 23a
APPENDIX C, Order of Eleventh Circuit Denying
IE A A ETRE NTT 100a
APPENDIX D, Order of Circuit Court of Coffee
County, Alabama Sentencing Petitioner to
i]
TABLE OF AUTHORITIES
Cases
Artuz v. Bennett, 531 U.S. 4 (2000)........00.0.000ceee. 17
Bouie v. City of Columbia, 378 U.S. 347 (1964) ......... 9
Burton v. Stewart, 549 U.S. 147 (2007)........ 12, 13, 18
Crawford v. Washington, 541 U.S. 36 (2004)........... 20
Esposito v. United States, 135 F.3d 111
EEA eRe oe ee 15, 16, 17
Ex parte Kyzer, 399 So.2d 330 (Ala. 1981)....... passim
Ex parte Magwood, 548 So.2d 516 (Ala. 1988)........... 8
Felker v. Turpin, 518 U.S. 651 (1996) .................2.... 12
Femia v. United States, 47 F.3d 519
SERRE STRESS 14
G. & C. Merriam Co. v. Saalfield, 241 U.S. 22
RE ESPEN loool ao BOs eA RL 12
In re Taylor, 171 F.3d 185 (4th Cir. 1999)................ 18
Jones v. Estelle, 692 F.2d 380 (5th Cir. 1982).......... 14
Kimmelman v. Morrison, 477 U.S. 365
RE SERRE EE SES ERE cee SR 21
Magwood v. Jones, 472 F. Supp. 2d 1333
ES ESSEEIEROL 5 NET 3 Ae SET 4
Magwood v. Smith, 608 F. Supp. 218
EE SETI CA 5, 6, 7
Magwood v. Smith, 791 F.2d 1438, 1450
EEE I 7
Magwood v. State, 426 So. 2d 918
a cemnmniesednisionss 5,6
Magwood v. State, 548 So.2d 512
teen aincasccsscncatendnbeaneinont 8
Magwood v. State, 689 So.2d 959
ee icanncienssserssconesedasevsues 8
Munoz v. United States, 331 F.3d 151
Ce sss cduninbieiuntadanaiia 15
iv
Panetti v. Quarterman, 551 U.S. 930
ESRC HR ARES ee Re 12, 13, 15
Richmond v. Lewis, 506 U.S. 40 (1992) .............. 13, 15
Richmond v. Lewis, 948 F.2d 1473
a ccesinivanecue 14,15
Richmond v. Ricketts, 774 F.2d 957
EERE RAS SIE 0 14, 15
Sanders v. United States, 373 U.S. 1
ESET CET FS O88 SE Dc 12
Slack v. McDaniel, 529 U.S. 473 (2000)................0... 15
United States v. Galtieri, 128 F.3d 33
Neen ncovasvencoe 16, 17
United States v. Pedrazza, 466 F.3d 932
RICE ESS 15
Vasquez v. Parrott, 318 F.3d 387
RGR Se LEE Oe 16
Whorton v. Bockting, 549 U.S. 406 (2007)................ 20
Constitutional Provisions
re Oe OE, Ec cnpuonesonaseapenens 19
Oe a a sinacadnneninnenbonnnins 1
es ns I, ET cepuunesoneousseiiecncans 1,8
Statutes
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I 18, 20
a aE 2,13, 15
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i... ssseneducenseossseduasscnssevesas 15
ET EE 15
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Be, Ce ee i iceiesicticccinicatibssesnccsimcee 4
i ee I iiisncininicniisesniinabeaaieen passim
Be, Ee BD icivisicccsnnistccisncconmnessuisiameeaaane 7
Fa Se Oe ED ntinicdecspinivitolcsutussindeiaiueane 7
Other Authorities
Liebman, James S. & Randy Hertz, Federal
Corpus Practice and Procedure
Fe Oy See e ices cnecsnennsninicsdsnciiinitesiidebeimiaiemmivauall 11
11 Moore’s Federal Practice § 131.01 (2009)............ 12
PETITION FOR A WRIT OF CERTIORARI
Petitioner Billy Joe Magwood respectfully
petitions for a writ of certiorari to review the
judgment of the United States Court of Appeals for
the Eleventh Circuit.
OPINIONS BELOW
The opinion of the United States Court of
Appeals for the Eleventh Circuit (Pet. App. la) is
published at 555 F.3d 968. The pertinent opinion of
the United States District Court for the Middle
District of Alabama (Pet App. 23a) is published at
481 F. Supp. 2d 1262.
JURISDICTION
The judgment of the court of appeals was entered
on January 23, 2009. Pet. App. la. A timely petition
for rehearing was denied on March 24, 2009. Pet.
App. 100a-10la. On June 15, 2009, Justice Thomas
extended the time within which to file a petition for a
writ of certiorari to and including August 7, 2009.
See 08-A1116. This Court has jurisdiction pursuant
to 28 U.S.C. § 1254(1).
RELEVANT CONSTITUTIONAL AND
STATUTORY PROVISIONS
The Sixth Amendment to the United States
Constitution provides in relevant part: “In all
criminal prosecutions, the accused shall enjoy the
right . . . to have the assistance of counsel for his
defense.”
The Fourteenth Amendment to the United States
Constitution provides in relevant part: “[NJjor shall
2
any State deprive any person of life, liberty, or
property, without due process of law.”
28 U.S.C. § 2244(b) provides in relevant part:
“(1) A claim presented in a second or successive
habeas corpus application under section 2254 that
was presented in a prior application shall be
dismissed.
(2) A claim presented in a second or successive
habeas corpus application under section 2254 that
was not presented in a prior application shall be
dismissed unless —
(A) the applicant shows that the claim relies on a
new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that
was previously unavailable; or
(B)G) the factual predicate for the claim could not
have been discovered previously through the exercise
of due diligence; and
(ii) the facts underlying the claim, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing
evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant
guilty of the underlying offense.”
Relevant provisions of Alabama’s | statutes
governing capital punishment are reproduced at Pet.
App. 91a-99a.
3
STATEMENT OF THE CASE
Petitioner Billy Joe Magwood stands sentenced
to death for an act that was not a capital offense
under Alabama law when he committed it. A federal
district court therefore granted habeas relief from
this sentence on two independent grounds: (1) that
the Alabama courts violated the Due Process Clause
by unforeseeably changing Alabama law in order to
retroactively render petitioner’s act a capital offense;
and (2) that petitioner’s attorney rendered ineffective
assistance of counsel by failing to raise this due
process claim at petitioner’s resentencing proceeding.
Without disputing that the retroactive alteration of
Alabama law to render petitioner death-eligible
clearly violated the Due Process Clause, the Eleventh
Circuit reversed the district court’s decision and
reinstated petitioner’s death sentence. The Eleventh
Circuit held that (1) petitioner’s due process claim is
“successive” and thus procedurally barred, even
though this is his first habeas petition challenging
his new sentence, because petitioner could have
challenged his original sentence on the same
constitutional ground; and (2) petitioner’s attorney
reasonably neglected to argue at _ petitioner's
resentencing that the Due Process Clause forbade
retroactively rendering petitioner’s offense a capital
crime.
1. Petitioner has long suffered from paranoid
schizophrenia. His service in the Vietnam War and a
subsequent period of detention in the Coffee County,
Alabama jail, during which he was unable to obtain
medication or treatment, deepened his mental illness.
By the late 1970's, petitioner believed that the Army
was sending him orders through surgically implanted
4
communication devices and warning him that Coffee
County authorities, including Sheriff Cornelius
Grantham, endangered his completing his “missions.”
Petitioner even sent letters while in jail to the
Veterans Administration, imploring it to release him
from its command by removing the implanted
communication devices.’
On March 1, 1979, as petitioner’s hallucinations
persisted, petitioner approached Sheriff Grantham in
front of the county jail. After exchanging greetings
and in plain view of the sheriffs deputies, petitioner
shot and killed the _ sheriff. Petitioner then
exchanged fire with a deputy, got into his car, and
drove home. Upon arriving there, petitioner sat
unarmed on his front porch until his arresting
officers arrived.
At the time of the killing, Alabama law provided
that an individual was subject to the death penalty if
two prerequisites were met. First, the individual had
to commit one of the fourteen types of aggravated
murder listed in Ala. Code § 13-11-2(a) (1975).
Second, the trial judge had to determine that “[o]ne
or more of the aggravating circumstances
enumerated in section 13-11-6 . . . exist{ed) in the
' Internal parole and probation reports, which did not
surface until after petitioner's resentencing, confirmed that,
while incarcerated, petitioner “did not know his date of birth,
what day of the week it was, the day of the month, or month of
the year. [He] did not have any concept of what parole
amounted to and his only interest was getting out of jai] and to
go to the Walter Reed Hospital for treatment” Habeas Pet. App.
109; see also Magwood v. Jones, 472 F. Supp. 2d 1333, 1335-37
(M.D. Ala. 2007).
5
case” and outweighed any mitigating circumstances.
Id. 13-11-4; see also Pet. App. 51a-55a.*, Murdering a
sheriff while on duty or because of some official or
job-related act constituted aggravated murder under
§ 13-11-2(a)(5), but petitioner did not kill Sheriff
Grantham under any of the aggravating circum-
stances enumerated in § 13-11-6.
The State nonetheless charged petitioner with
capital murder. It appointed two lawyers to
represent him, a _ childhood friend of Sheriff
Grantham and someone who had known the sheriff
professionally for twenty-five years. The State also
placed petitioner in Searcy State Hospital, where
three state psychiatnmsts unanimously confirmed his
paranoid schizophrenia. The psychiatrists also
opined that petitioner “was insane at the time of his
admission to their hospital, at the time [the doctors]
issued their report, and probably at the time of the
commission of the offense.” Pet. App. 26a.
Petitioner, one psychiatrist emphasized, was “not a
borderline case”; he was “completely out of touch with
reality.” Magwood v. State, 426 So. 2d 918, 921 &
923 (Ala. Crim. App. 1982).
After receiving this report, the Alabama trial
court ordered that petitioner be “restored to his right
mind,” Tr. Rec. 387, by means of antipsychotic drugs
potent enough to “put anyone .. . totally asleep.”
Magwood v. Smith, 608 F. Supp. 218, 226 (M.D. Ala.
* Alabama law as it existed in 1979 is reproduced in the
appendix to the district court’s opinion, which appears at Pet.
App. 91a-99a.
6
1985). Months later, the court deemed petitioner
legally competent to stand trial. /d at 227.
Petitioner’s trial lasted a day and one-half.
“(T]he State’s only evidence that [petitioner] was
sane came from two general practitioners who
examined [petitioner] for 15 and 30 minutes,
respectively, and a clinical psychologist who conceded
that [petitioner] suffered from paranoid schizo-
phrenia and that he examined [petitioner] two years
after the offense conduct and while he was strongly
medicated.” Pet. App. 26a. The trial court refused to
compel the testimony of any of the three doctors from
Searcy State Hospital or to grant petitioner funds to
hire a psychiatrist as an expert witness of his own.
The jury, whose members included numerous
acquaintances of the sheriff, see Magwood v. State,
426 So.2d 918, 924 (Ala. Crim. App. 1982), rejected
petitioner’s insanity defense and found him guilty.
Even though none of the “aggravating circum-
stance[s| in Section 13-11-6” accompanied petitioner’s
crime, the trial court sentenced petitioner to death.
Magwood, 426 So.2d at 928 (quoting trial court
sentencing order of June 30, 1981). The trial court
justified this action by referencing Ex parte Kyzer,
399 So.2d 330 (Ala. 1981), in which the Alabama
Supreme Court had held three months earlier (but
almost two years after petitioners crime) that
Alabama law no longer required a court to find an
7
aggravating circumstance under Ala. Code § 13-11-6
in order to impose the death penalty.®
2. After the Alabama courts upheld petitioner’s
conviction and sentence, petitioner filed a federal
habeas petition. The U.S. District Court for the
Middle District of Alabama left his conviction in place
but granted habeas relief as to petitioner's death
sentence. The district court held that the sentencing
court had inexplicably failed to find or consider any
mitigating circumstances relating to petitioner’s
mental illness. Magwood v. Smith, 608 F. Supp. 218,
228 (M.D. Ala. 1985). The Eleventh Circuit affirmed
this decision and mandated “a new sentencing
hearing in order to satisfy the constitutional
standards for sentencing in death penalty cases.”
Magwood v. Smith, 791 F.2d 1438, 1450 (11th Cir.
1986). The State declined to seek review in this
Court.
3. In 1986, “the state trial court conducted a
‘complete and new’ sentencing hearing, including ‘a
new assessment of all of the evidence, arguments of
counsel, and law’ and a ‘new .. . opportunity for the
parties to submit evidence.” Pet. App. 27a (quoting
portion of state court order reproduced at Pet. App.
103a). Again applying Ayzer, the trial court
sentenced petitioner to death notwithstanding the
°’ The Alabama Legislature abrogated Ayzer the day after
petitioner was sentenced, reinstating the rule for crimes
committed after July 1, 1981 that “luJnless at least one
aggravating circumstance as defined in section 13A-5-49
jformerly section 13-11-6) exists, the sentence shall be life
imprisonment without parole.” Ala. Code § 13A-5-45(f) (1981).
8
absence of any aggravating circumstance listed in
former Ala. Code § 13-11-6. Pet. App. 102a-107a.
The Alabama courts upheld this new sentence on
direct appeal. Magwood v. State, 548 So.2d 512 (Ala.
Crim. App. 1988); Ex parte Magwood, 548 So.2d 516
(Ala. 1988).
4. Petitioner sought post-conviction relief from
his new death sentence in the Alabama courts.
Among other things, he argued that “the absence of
any statutory aggravating circumstance and the lack
of notice given by the 1975 Act for the retroactive
application of the decision in Ayzer rendered [his]
sentence unconstitutional under the. . . 14th Amend-
ment{].” Pet. App. 69a (quoting petitioner’s brief).
The Alabama Court of Criminal Appeals rejected this
“fair warning” argument without noting = any
preservation problems. Magwood v. State, 689 So.2d
959, 965-66 (Ala. Crim. App. 1996). It also rejected
petitioner's related argument that his counsel
rendered ineffective assistance at resentencing by
failing to raise this claim. /d. at 967.
5. Petitioner next filed the federal habeas
petition at issue here in the U.S. District Court for
the Middle District of Alabama, limited to chal-
lenging his new sentence. Petitioner renewed, among
other arguments, his fair warning and ineffective
assistance claims. The district court granted relief on
both claims.
As to the fair warning claim, the district court
held that applying the formulation of Alabama law
announced in Ayzer to petitioner’s sentencing
violated clearly established Due Process Clause
limitations on the retroactive application of new law.
“I]t seems beyond dispute,” the court explained,
9
“that the judicial construction of [Alabama death
penalty statutes] announced in Ayzer was
‘unexpected and indefensible by reference to the law
which had been expressed prior to’ [petitioner’s]
offense conduct.” Pet. App. 55a (quoting Boure v. City
of Columbia, 378 U.S. 347, 354 (1964)). The district
court also explained — even though the State had not
argued to the contrary — that this due process claim
was not subject to AEDPA’s restrictions on “second or
successive” habeas petitions. Pet. App. 63a-65a.
Although “the state court committed the same [due
process] error” at petitioner’s first sentencing,
“habeas petitions challenging the constitutionality of
a resentencing proceeding are not successive to
petitions that challenge[d] the . . . original sentence.”
Pet. App. 65a.‘
As to the ineffective assistance claim, the district
court held that petitioner’s attorney rendered inef-
fective assistance by failing to argue at resentencing
that the Due Process Clause prohibited retroactively
applying Ayzer to his case. Pet. App. 82a-89a. The
district court explained that there could not have
been any reasonable strategic reason to forego the
claim because it was a clear winner. And counsel’s
deficient performance unquestionably prejudiced the
defense: had counsel successfully made this argu-
ment, petitioner would have been ineligible for the
death penalty.
—_—_—_— ———————— — ————
* The district court also made clear that this claim was not
subject to procedural default. Petitioner raised it in state post-
conviction proceedings, and “the Alabama Court of Criminal
Appeals denied it on the merits.” See Pet. App. 68a-70a.
10
6. The Eleventh Circuit reversed the district
court’s grant of habeas relief.° The Eleventh Circuit
did not question the district court’s holding on the
merits of petitioner’s fair warning claim. But it
nonetheless ruled that the claim was successive —
notwithstanding the fact that it challenged a newly
imposed death sentence — because it “was available
at [petitioner’s] original sentencing.” Pet. App. 15a.
The Eleventh Circuit rejected the district court’s
ineffective assistance holding on the ground that
“Alabama’s highest court had said in Ayzer” that
state law did not require finding an aggravating
circumstance under Ala. Code § 13-11-6 to impose the
death penalty. Pet. App. 19a. Even though Ayzer
itself had not addressed whether the Due Process
Clause permitted that change in Alabama law to be
applied retroactively, the Eleventh Circuit reasoned:
“We are not prepared to require counsel to raise an
argument that has already been decided adversely to
his client’s position by a state’s highest court in order
to avoid being found ineffective.” Pet. App. 19a-20a.
REASONS FOR GRANTING THE WRIT
The Eleventh Circuit’s decision rests upon two
holdings that are patently erroneous. First, the
Eleventh Circuit’s holding that a claim challenging a
new sentence imposed after a previous grant of
habeas relief is “successive” if the prisoner’s prior
> Jt also affirmed the district court’s rejection of
petitioner’s other claims for relief. Petitioner does not advance
those claims before this Court.
ll
sentence could have been challenged on the same
grounds contravenes this Court’s and other circuits’
consistent recognition that habeas petitions brought
against new sentences (or convictions) are first
petitions. Second, the Eleventh Circuit’s holding that
petitioner’s counsel rendered effective assistance
even though he failed to make a readily available
argument that would have established that petitioner
was ineligible for the death penalty disregards basic
Sixth Amendment principles.
I. The Eleventh Circuit’s Construction of What
Constitutes a “Second or Successive” Habeas
Petition Holding Warrants Review.
A. The Holding is Erroneous.
It has long been hornbook law that the
“successive petition doctrine does not apply when...
a habeas corpus petitioner, who succeeded in
overturning a conviction (or sentence) and who is
subsequently retried and reconvicted (or resen-
tenced), files a second petition to challenge the new
conviction (or sentence).” 2 James S. Liebman &
Randy Hertz, Federal Habeas Corpus Practice and
Procedure §28.3b, at 1412-13 (5th ed. 2005). The text
of AEDPA’s successive petition provisions, the
purpose of those provisions, and this Court’s
precedent all confirm that the Eleventh Circuit erred
in departing from this elementary principle.
1. 28 U.S.C. § 2244 sets forth special rules
limiting the filing of “second or successive” habeas
corpus applications. Although neither this statutory
section nor any other in AEDPA defines the phrase
“second or successive,” one thing should be plain: an
application cannot be “second or successive” when it
12
is the first one to challenge a new judgment. That
being so, no claim in such an application — regardless
of whether the applicant could have brought a similar
claim against an earlier judgment — can be subject to
AEDPA’s successive petition rules.
This straightforward understanding of Section
2244 comports with its purpose. Section 2244
“constitute[s] a modified res judicata rule, a restraint
on what is called in habeas corpus practice ‘abuse of
the writ.” Felker v. Turpin, 518 U.S. 651, 664 (1996).
Section 2244 “modifie[s]” traditional res judicata
doctrine insofar as it re/axes that doctrine, owing to
the historical tradition of allowing some relitigation
in habeas cases that would not be permissible in
other types of cases. See, e.g, Sanders v. United
States, 373 U.S. 1, 8-15 (1963). Accordingly, any
litigation that is exempted from traditional res
judicata doctrine is necessarily exempted from the
reach of Section 2244.
Such is the case here: res judicata exempts
litigation that does not involve “the same cause of
action” as previous litigation. G. & C. Merriam Co. v.
Saalfield, 241 U.S. 22, 29 (1916); see generally 18
Moore’s Federal Practice § 131.01 (2009). And a new
claim brought against a new judgment, see Pet. App.
103a, 106a, is not the “same” as any claim that was
or might have been brought against a previous
judgment.
2. This Court’s decisions are in accord. This
Court deems applications successive only when they
“contest[] the same custody imposed by the same
Judgment of a state court.” Burton v. Stewart, 549
U.S. 147, 153 (2007) (per curiam) (emphasis added);
see also Panetti v. Quarterman, 551 U.S. 930, 944
13
(2007) (application is successive when it challenges “a
state-court judgment already challenged in a prior §
2254 application”) (emphasis added); id. at 964
(Thomas J., dissenting) (application is successive
when it challenges “a state-court judgment that had
been previously challenged in a federal habeas
application”) (emphasis added). This Court has never
suggested that an application filed against a new
judgment can be deemed successive.
To the contrary: Burton strongly suggests that
this Court would not do so. In Burton, a state
prisoner filed a habeas application in 1998 that
challenged his conviction but did not raise any claims
against his sentence. After that petition was denied,
the prisoner filed another application in 2002, this
time challenging the constitutionality of his sentence.
The prisoner argued that the 2002 application was
not successive because the 1998 application actually
challenged a different judgment — the judgment his
state court had entered in 1994, before the prisoner
had been resentenced. If the Eleventh Circuit’s
holding that an application challenging a new
judgment on grounds that were previously available
were correct, Burton’s argument would have been
irrelevant: his 2002 application would have been
successive regardless of whether it chall nged a new
judgment. But this Court assumed that it did matter
which judgment the 1998 petition challenged; it
rejected the prisoner’s argument only on the ground
that his 1998 application actually had challenged the
“same” judgment as his 2002 application did. Burton,
549 U.S. at 156.
This Court’s decision in Richmond v. Lewis, 506
U.S. 40 (1992), reinforces the conclusion that an
14
initial habeas petition challenging a new judgment is
by definition a first petition. There, a state prisoner
who had previously obtained habeas relief challenged
the new death sentence that had been imposed at
resentencing. As the federal court of appeals’
decisions in the case made clear, the prisoner’s
primary claim — that one of the aggravating factors
supporting his sentence was unconstitutionally vague
— was one that he could have, but had not, brought
against his original sentence. See Richmond v.
Lewis, 948 F.2d 1473, 1480 (9th Cir. 1992); Richmond
v. Ricketts, 774 F.2d 957 (9th Cir. 1985); C.A. App. C
(Petitioner’s Specification of Claims Raised in this
Petition and in Richmond v. Cardwell) at 11. This
Court reviewed the prisoner’s vagueness claim on the
merits and held that he was entitled to habeas relief.
Neither the majority nor the concurring or dissenting
opinions suggested that the prisoner’s claim should
be treated as anything other than a first petition,
even though contemporaneous law gave this Court
the authority to inquire sua sponte whether the
petition was successive. FE.g., Femia v. United States,
47 F.3d 519, 524 (2d Cir. 1995); Jones v. Estelle, 692
F.2d 380, 384 n.5 (5th Cir. 1982).
B. The Holding Creates A Circuit Split.
Two federal circuits have explicitly rejected the
rule that the Eleventh Circuit adopted here. In
Richmond v. Ricketts, 774 F.2d 957 (9th Cir. 1985),
the case just described, the Ninth Circuit held that
even though a state prisoner could have challenged
his original sentence on the same basis as his claim
15
concerning his resentencing, the claim was not
successive “because the second petition was filed in
response to the resentencing.” Jd. at 961.6 The Ninth
Circuit later reaffirmed this holding, confirming that
a prisoner who has been resentenced to death
following a new sentencing hearing “may challenge
the death penalty on grounds that were available to
him but that he did not raise when contesting his
first sentence.” Richmond v. Lewis, 948 F.2d 1473,
1480 (9th Cir. 1992), revd on other grounds, 506 U.S.
40 (1992).
The Second Circuit issued a similar decision in
Esposito v. United States, 135 F.3d 111 (2d Cir.
1997). In Esposito, a federal prisoner pleaded guilty
to various drug offenses and was sentenced to 250
months in prison. He then obtained habeas relief
from his sentence on ineffective assistance grounds.
Following resentencing, he brought another federal
habeas petition, arguing in part that the sentencing
court violated his due process rights by failing to
pinpoint the perticular form of methamphetamine for
which he had been responsible.’ (Different forms of
® Although the Ninth Circuit’s decision predates AEDPA,
nothing in AEDPA altered what constitutes a successive
petition. See Panett, 551 U.S. at 944 (citing Slack v. McDaniel,
529 U.S. 473 (2000)); id. at 964 (Thomas, J., dissenting) (“Before
AEDPA’s enactment, the phrase ‘second or successive’ meant
the same thing it does today.”). AEDPA merely codified the
concept and further restricted the circumstances under which
claims in successive petitions can go forward. See 28 U.S.C. §
2244.
? Although the applicant in Zsposito was a federal prisoner
and thus sought habeas relief under 28 U.S.C. § 2255 instead of
16
the drug carried different guidelines ranges.) Even
though it must have been possible for the prisoner to
have challenged his first sentence on this basis, the
Second Circuit held that the claim was not successive
because it “s[ought] — for the first time — collateral
review of the new sentence.” /d. at 113; see also
Vasquez v. Parrott, 318 F.3d 387, 390 (2d Cir. 2003)
(“[Elven a petition that has been finally adjudicated
on the merits will not count for purposes of the
successive petition rule unless the second petition
attacks the same judgment that was attacked in the
prior petition.”) (internal quotation and citation
omitted) (emphasis added).
The Eleventh Circuit claimed (Pet. App. 14a)
that its holding was consistent with a different
Second Circuit decision, United States v. Galtier,
128 F.3d 33 (2d Cir. 1997). But Ga/tier7 addressed a
materially different situation than petitioner’s: there,
a prisoner’s original sentence had merely been
amended — that is, he had been only partially
resentenced — following habeas relief. The Second
Circuit held that a claim in his new habeas filing was
successive “to the extent that it challenge[d] the
underlying conviction or slought] to vacate any
component of the original sentence that was not
amended.” Id. at 38 (emphasis added). Nothing in
§ 2254, “the same mode of analysis applies when addressing the
restriction on second or successive motions contained in § 2255.”
United States v. Pedrazza, 466 F.3d 932, 933 n.1 (10th Cir.
2006); see also 28 U.S.C. § 2255(h) (expressly incorporating
rules set forth in Section 2244); Munoz v. United States, 331
F.3d 151, 152 (1st Cir. 2003).
17
this holding indicates that a claim challenging an
entirely new sentence could ever be deemed second or
successive. To the contrary, Ga/tier? made clear in
dicta — foreshadowing the Second Circuit’s later
holding in Esposito — that a habeas petition “will be
regarded as a ‘first’ petition . . . to the extent that it
seeks to vacate the new, amended component of [a]
sentence.” Gal/tieri, 128 F.3d at 37-38. That is the
situation here: petitioner’s death sentence is entirely
new; no part of the prior one remains. Pet. App. 27a.
C. The Holding Has Pernicious Consequences
For The General Administration Of
Habeas Corpus.
It is important to review the Eleventh Circuit’s
decision not only because petitioner faces an
execution that could not be carried out if he were
under the jurisdiction of another circuit, but also
because the decision threatens to upend settled
understandings in current habeas corpus law.
A moment’s reflection on the way AEDPA works
reveals why this is so, and why the Eleventh Circuit’s
decision illegitimately insulates new judgments,
following initial grants of habeas relief, from
collateral attack. As this Court emphasized in Artuz
v. Bennett, 531 U.S. 4, 9-10 (2000), courts construing
AEDPA must be attentive to the difference between
the words “application” and “claim.” Section 2244
requires courts to decide as a threshold matter
whether a habeas “application” — that is, a whole
filing — is successive. If it is, then the Section
provides rules for determining whether’ each
individual “claim” in the application may go forward.
If a claim in a successive petition has already been
18
litigated, it must be dismissed; if it is new, it can
proceed only under limit. circumstances.
The Eleventh Circuit's ruling turns this
methodology on its head. Before even asking
whether an application against a new judgment is
successive, the Eleventh Circuit apparently now
intends to inspect each individual c/aim in all such
applications. If applicants could have challenged
their original judgments on the same ground as any
claim they advance against the new judgment, the
Eleventh Circuit treats the claim as though raised in
a successive application.
The only way for the Eleventh Circuit to render
that holding consistent with the order of analysis
that Section 2244 directs would be to treat all
applications (that is, a// claims in all applications)
brought against reconvictions or resentencings
following successful habeas attacks as successive.
But this approach would raise several problems.
Among them:
e It would require all claims against new
judgments, even those that arise for the first time at
retrials or reconvictions following successful habeas
petitions, to be dismissed unless, in the words of
Section 2244(b\(2), they (A) “relly] on a new rule of
constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was
previously unavailable” or (B) establish by clear and
convincing evidence that the petitioner is innocent.
This outcome, however, would contravene the
universally settled understanding — accepted even by
the Eleventh Circuit in this case, see Pet. App. 15a —
that claims that arise for the first time at retrial or
resentencing are not subject to rules governing
19
second or successive petitions. See, e.g., In re Taylor,
171 F.3d 185 (4th Cir. 1999), cited with approval in
Burton, 549 U.S. at 156. In other words, making
sense of the Eleventh Circuit’s holding here would
render retrials and resentencings virtually immune
from collateral attack.*®
e Indeed, treating applications challenging
reconvictions or resentencings entered following
successful habeas attacks as successive would render
new judgments committing the same violations that
triggered habeas relief in the first place immune from
challenge. The same would be true with respect to
constitutional violations that prisoners challenged
but that first habeas courts did not reach the first
time around because they granted relief on different
grounds. In both of these scenarios defendants would
have raised the constitutional objections at issue in
earlier habeas applications, so Section 2244, under
the Eleventh Circuit’s reading, would require federal
courts to dismiss the claims. 28 U.S.C. § 2244(b)(1).
This result is not only starkly counterintuitive but
may well violate the constitutional prohibition
against suspending the writ. See U.S. Const. art I, §
9, cl. 2 (Suspension Clause).
e Treating all applications challenging recon-
victions or resentencings following successful habeas
® The ineffective assistance claim that arises in this case
would be the rare exception to this rule, for if petitioner's
attorney had performed at a constitutionally acceptable level,
the attorney would have made clear that petitioner “is ‘actually
innocent’ of the death penalty.” Pet. App. 57a; see infra at 20-22
(laying out ineffective assistance claim).
20
attacks as successive would also prevent prisoners
from being able to seek relief against their new
judgments based on intervening decisions from this
Court. Consider, for example, a _ hypothetical
defendant whose conviction became final in 2003,
who later received habeas relief, and who was
reconvicted in 2005. Such a prisoner would be
precluded from seeking habeas relief based on a
flagrant violation at the 2005 trial of the
Confrontation Clause as explicated in Crawford v.
Washington, 541 U.S. 36 (2004). That decision is not
— as Section 2244(b)(2) requires — retroactive, see
Whorton v. Bockting, 549 U.S. 406 (2007), or relevant
to establishing actual innocence.
II. The Eleventh Circuit’s Ineffective Assistance
Holding Warrants Review.
The district court held that petitioner’s attorney
rendered ineffective assistance by failing to argue at
petitioner’s resentencing that the Due Process Clause
prohibited retroactively applying the new Alabama
law announced in £x parte Kyzer, 399 So.2d 330
(Ala. 1981), to his case. Pet. App. 82a-89a. That new
law dispensed with the prior requirement that at
least one aggravating factor listed in Ala. Code. § 13-
11-6 (1975) exist before sentencing someone to death;
the new law provided, in other words, that
petitioner's crime alone, without any of the
aggravating circumstances required at the time of his
crime under Section 13-11-6, rendered him death
eligible. Had petitioner’s attorney made this due
process argument, this Court’s precedent would have
required the trial court to hold that petitioner could
not be sentenced to death. Pet. App. 57a.
21
The Eleventh Circuit did not quibble with the
well accepted premise that attorneys render
ineffective assistance when they fail, without any
reasonable strategic basis, to raise a readily available
and winning argument. See Kimmelman v.
Morrison, 477 U.S. 365, 374, 382 (1986). The
Eleventh Circuit nonetheless reversed the district
court, basing its holding on the following two
sentences:
While there was a_ possible objection
[petitioner's attorney could have made},
Alabama’s highest court had said in Ayzer
that a § 13-11-2 aggravating factor could be
used as an aggravating circumstance. We are
not prepared to require counsel to raise an
argument that already has been decided
adversely to his client’s position by a state’s
highest court in order to avoid being found
ineffective.
Pet. App. 19a-20a.
To the extent the Eleventh Circuit assumed in
this passage that Ayzer rejected a federal due process
challenge to applying the new law announced in
Kyzer retroactively, the Eleventh Circuit is simply
wrong. Ayzer never considered any such argument.
Rather, the Alabama Supreme Court simply held
that state law gave it the authority to rewrite
Alabama law to declare that defendants could be
sentenced to death even when no aggravating fact
listed at Ala. Code § 13-11-6 was present. Ayzer, 399
So.2d at 339. This decision gave rise to the federal
due process argument petitioner’s attorney failed to
raise at his resentencing; it did not address it, much
less decide it adversely.
22
To the extent the Eleventh Circuit meant that it
was not unreasonable for petitioner’s attorney to
have failed to raise the federal due process argument
at resentencing because the Alabama Supreme Court
in Ayzer asserted state-law authority to change
Alabama law, the Eleventh Circuit was equally
mistaken. A state court’s prior rejection of state-law
arguments says nothing about the merits of a
theoretically different federal constitutional claim.
In short, the Eleventh Circuit had no sound
reason for overturning the district court’s ineffective
assistance holding. Certiorari should be granted on
this issue as well.
CONCLUSION
For the foregoing reasons, the petition for a writ
of certiorari should be granted.
Respectfully submitted,
James A. Power Jr. Jeffrey L. Fisher
Marguerite Del Valle Counsel of Record
POWER DEL VALLE LLP Pamela S. Karlan
233 West 72nd Street STANFORD LAW SCHOOL
New York, NY 10023 SUPREME COURT
LITIGATION CLINIC
Thomas C. Goldstein 559 Nathan Abbott Way
AKIN, GUMP, STRAUSS, Stanford, CA 94305
HAUER & FELD LLP (650) 724-7081
1333 New Hampshire
Ave., NW Amy Howe
Washington, DC 20036 Kevin K. Russell
(202) 887-4000 HOWE & RUSSELL, P.C.
7272 Wisconsin Ave.
Bethesda, MD 20814
August 5, 2009
APPENDIX
la
APPENDIX A
UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT.
Billie Joe MAGWOOD, Petitioner-Appellee,
Cross-Appellant,
Ve
Grantt CULLIVER, Warden, Richard F. Allen,
Commissioner, Alabama Departments of Corrections,
Troy King, Attorney General of Alabama,
Respondents-Appellants, Cross-Appellees.
No. 07-12208
Jan. 23, 2009
Before TJOFLAT, DUBINA and BLACK, Circuit
Judges.
BLACK, Circuit Judge:
Grantt Culliver, Richard F. Allen and Troy King
(the State) appeal the district court’s partial grant of
Alabama death-row inmate Billy Joe Magwood’s 28
U.S.C. § 2254 habeas corpus petition on Magwood’s
fair-warning claim' and _ ineffective assistance of
counsel based on the fair-warning claim. Magwood
cross-appeals the partial denial of his petition, raising
' Magwood asserts his death sentence violated the fair-warning
requirement of the due process clause because it was based on Ex
parte Kyzcr, 399 So.2d 330 (Ala.1981), which was decided after he
committed his offense and retroactively applied to his case.
2a
the multiple issues as discussed in section III.B of this
opinion. After review, we affirm in part and reverse in
part and render judgment in favor of the State.
I. BACKGROUND
A. Factual background
The facts of Magwood’s offense are not in dispute.
They are set forth in an opinion by the Alabama Court
of Criminal Appeals, as follows:
Thomas Weeks, a Coffee County Deputy
Sheriff, testified he was employed as the
county jailer on March 1, 1979, under Coffee
County Sheriff Neil Grantham. The witness
stated he observed [Magwood], whom he
recognized as a former jail inmate, sitting in a
car parked in Sheriff Grantham’s parking
space at approximately 6:45 a.m. Shortly
before 7:00 a.m., he _ observed Sheriff
Grantham drive up and park his vehicle. He
got out of the automobile, walked to some
garbage cans and deposited a trash bag, and
then walked towards the jail door. [Magwood]
got out of his automobile with something in
his hand and met Sheriff Grantham at the
rear of the car. At that point, Deputy Weeks
heard three gunshots and saw Shenff
Grantham fall. The witness then turned back
into the jail and obtained a gun. He observed
([Magwood] get back into his car and saw that
he held a pistol in his hand. He exchanged fire
with |Magwood] as he drove away. Deputy
Weeks then went over to where Sheriff
3a
Grantham lay on the ground and observed
that the Sheriffs face was blue and that he
appeared not to be _ breathing, having
apparently been hit in the face and neck.
Deputy Weeks stated he observed no one else
in the area at the time the Sheriff was killed.
Magwood v. State, 426 So.2d 918, 920 (Ala. Crim. App.
1982).
B. Procedural background
Magwood murdered Sheriff Grantham on March 1,
1979. Magwood was convicted and sentenced to death
for the murder on June 2, 1981. On direct appeal, the
Alabama Court of Criminal Appeals and the Alabama
Supreme Court affirmed Magwood’s conviction and
death sentence. Magwood v. State, 426 So.2d 918 (Ala.
Crim. App.1 982), aff'd, 426 So.2d 929 (Ala. 1983). The
United States Supreme Court denied Magwood’s
petition for writ of certiorari. Magwuod v. Alabama,
462 U.S. 1124 (1983).
On July 13, 1983, Magwood filed a petition for writ
of error coram nobis in the Circuit Court of Coffee
County. This petition was denied and on March 20,
1984, the Alabama Court of Criminal Appeals affirmed
the denial of the coram nobis petition. Magwood v.
State, 449 So.2d 1267 (Ala. Crim. App. 1984). A motion
for out-of time appeal was denied by the Alabama
Supreme Court on June 5, 1984. Ex parte Magwood,
453 So.2d 1349 (Ala. 1984).
Magwood then filed a 28 U.S.C. § 2254 petition for
writ of habeas corpus in the United States District
4a
Court for the Middle District of Alabama. On March
26, 1985, the district court upheld Magwood’s
conviction but conditionally granted the writ as to the
sentence, based on the failure of the sentencing court
to find two mitigating circumstances. Magwood v.
Smith, 608 F. Supp. 218 (M.D. Ala. 1985). This Court
affirmed the district court’s decision. Magwood v.
Smith, 791 F.2d 1438 (11th Cir. 1986).
A resentencing hearing was conducted on
September 17, 1986. On October 2, 1986, the Alabama
trial court, after considering the additional mitigating
circumstances as ordered by the federal district court,
again sentenced Magwood to death. The Alabama
Court of Criminal Appeals and the Alabama Supreme
Court affirmed Magwood’s resentencing. Magwood v.
State, 548 So.2d 512 (Ala. Crim. App.), affd, 548 So.2d
516 (Ala. 1988). The United States Supreme Court
denied Magwood’s petition for writ of certiorari.
Magwood v. Alabama, 493 U.S. 923 (1989).
Magwood filed an application in this Court for
permission to file a second habeas corpus petition in
the district court challenging his conviction, which we
denied. Jn re Magwood, 113 F.3d 1544, 1553 (11th Cir.
1997). Magwood filed a second habeas petition
challenging his resentencing on April 23, 1997. The
district court granted Magwood’s habeas petition on
his fair-warning claim and ineffective assistance of
counsel based on the fair-warning claim and vacated
Magwood’s death sentence. The district court denied
relief on al] other claims. Magwood v. Culliver, 481 F.
Supp. 2d 1262 (M.D. Ala. 2007).
5a
The State appeals as of right the two issues on
which the district court granted relief. The district
court granted a certificate of appealability as to all of
the issues Magwood cross-appeals.
II. STANDARD OF REVIEW
Magwood filed this habeas petition after the
effective date of the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), and AEDPA applies to
this appeal. Under AEDPA, “[a] federal court may not
grant a petition for a writ of habeas corpus to a state
prisoner on any claim that has been adjudicated on the
merits in state court unless the adjudication (1)
resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established
federal law, or (2) resulted in a decision that was based
on an unreasonable determination of the facts in light
of the evidence presented in state court.” Clark v.
Crosby, 335 F.3d 1303, 1308 (11th Cir. 2003). A
federal court’s review is further restricted by 28 U.S.C.
§ 2254(e), which provides “a determination of a factual
issue made by a State court shall be presumed to be
correct” and places the burden on the petitioner to
rebut the presumption of correctness “by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1).
Ill. ANALYSIS
A. State’s appeal
1. Fair warning
The State asserts the district court erred when it
granted relief on Magwood’s claim that the retroactive
6a
application of the judicial rule in Ex parte Kyzer, 399
So.2d 330 (Ala. 1981), deprived Magwood of due
process of law because the claim is precluded under 28
U.S.C. § 2244(b) as successive.*
a. Alabama's death penalty statute and Ex parte
Kyzer
A review of Alabama’s death penalty Jaws at the
time of Magwood’s offense and £x purte Kyzer will be
helpful in the analysis of Magwood’s fair-warning
claim.
Il. The 1975 Act
Magwood committed the crime on March 1, 1979.
At that time, Alabama’s death penalty statute
provided in Alabama Code § 13-11-2(a)(5) (1975):
(a) If the jury finds the defendant guilty, it shall
fix the punishment at death when the
defendant is charged by indictment with any
of the following offenses and with aggravation,
which must also be averred in the indictment,
and which offenses so charged with said
aggravation shall not include any lesser
offenses:
(5) The murder of any police officer, sheriff,
deputy, state trooper or peace officer of any
* The State also contends the district court erred in granting
relief on Magwood’s fair-warning claim because the claim is
procedurally defaulted and is meritless. We do not address these
contentions as we conclude Magwood’s claim is successive.
7a
kind, or prison or jail guard while such prison
or jail guard is on duty or because of some
official or job-related act or performance of
such officer or guard.
Alabama Code §_ 13-11-4 (1975), _ entitled
“Determination of sentence by court; court not bound
by punishment fixed by jury” provided:
Notwithstanding the fixing of the punishment
at death by the jury, the court, after weighing
the aggravating and mitigating circumstances,
may refuse to accept the death penalty as
fixed by the jury and sentence the defendant
to life imprisonment without parole, which
shall be served without parole; or the court,
after weighing the aggravating and mitigating
circumstances, and the fixing of the
punishment at death by the jury, may
accordingly sentence the defendant to death. If
the court imposes a sentence of death, it shall
set forth in writing as the basis for the
sentence of death, findings of fact from the
trial and the sentence hearing, which shall at
least include the following:
(1) One or more of the aggravating circumstances
enumerated in section 13-11-6, which it finds
exists in the case and which it finds sufficient
to support the sentence of death....
Alabama Code § 13-11-6 (1975), did not have a
corresponding aggravating circumstance to the crime
for which Magwood was convicted, namely the murder
of a law enforcement officer. Additionally, the
8a
resentencing court specifically found that Magwood’s
crime did not qualify him for any of the listed
aggravating circumstances enumerated in Alabama
Code § 13-11-6 (1975).
Thus, although Magwood’s conviction under
Alabama Code § 13-11-2(a)(5) (1975), forced the jury to
fix the punishment at death, the judge could
nonethe'sss sentence Magwood to life imprisonment
without parole. Magwood asserts that under Alabama
Code § 13-11-4 (1975), he should have been sentenced
to life imprisonment, as § 13-11-4 (1975) requires there
be an aggravating circumstance listed in § 13-11-6
(1975). Magwood did not have an aggravating
circumstance listed in § 13-11-6 (1975), to correspond
with his crime.
ll. Beck v. Alabama
In Beck v. Alabama, 447 U.S. 625 (1980), the
United States Supreme Court found fault with the
Alabama death penalty scheme because it failed to
allow a jury in a capital case to consider lesser
included, noncapital offenses. On remand, the
Alabama Supreme Court determined the preclusion
clause could be removed from the statute, allowing the
Alabama rule on lesser included offenses in noncapital
cases to apply to capitai cases. Beck v. State, 396 So.2d
645, 658-59 (Ala. 1980). The Alabama Supreme Court
further decided the statute required jury participation
in the sentencing process, and created the necessary
procedures by adding an additional stage to the trial of
a capital case. Jd. at 659-62.°
3
The jury first considers a defendant’s guilt, not only with
9a
i. Ex parte Kyzer
Kyzer was tried and convicted under Alabama’s
1975 death penalty statute, § 13-11-2(a)(10), for first
degree murder “wherein two or more human beings
are intentionally killed by the defendant by one or a
series of acts.” Ex parte Kyzer, 399 So.2d 330, 332
(Ala. 1981). The Alabama Supreme Court concluded
there was an evidentiary basis for lesser included
offense instructions in Kyzer’s case, and thus reversed
and remanded for a new trial to be conducted in
conformance with Beck. /d. at 333.
However, based on the facts of Kyzer’s case, the
Alabama Supreme Court went on to address the issue
of whether the death penalty would be an available
option to the State if Kyzer was retried. Kyzer, like
Magwood, was convicted of an aggravated offense in §
13-11-2 (1975), for which the legislature failed to
provide a corresponding aggravating circumstance in §
13-11-6 (1975). The Alabama Supreme Court stated:
“(t]his case presents in purest form an anomaly in
Alabama's Death Penalty Statute.” Jd. at 334. The
Alabama Supreme Court concluded “[a] literal and
respect to the capital charge but also concerning those noncapital,
lesser included offenses supported by the evidence. If the jury
convicts the accused of a capital offense, the trial proceeds to a
second stage consisting of a sentence hearing during which the
jury hears any evidence of aggravating and mitigating
circumstances. If the jury is unable to unanimously agree on a
death sentence, the judge sentences the accused to life
imprisonment without parole. If the jury imposes a death
sentence, the judge conducts a sentencing hearing without the
jury and imposes a sentence of either death or life imprisonment
without parole. See Beck, 396 So.2d at 662-63.
10a
technical reading of the statute” would lead to the
conclusion that if the trial judge cannot find the
existence of an aggravating circumstance other than
the one averred in the indictment, the trial judge must
refuse to accept the death penalty as fixed by the jury.
Id. at 337. The Alabama Supreme Court could think of
no reason the Alabama legislature would have
imposed such a result, however, and concluded the
trial judge is authorized to find the same aggravation
averred in the indictment and proven beyond a
reasonable doubt to the jury. Jd. at 337-38.
b. Successive petition
The State argues Magwood’s fair-warning claim is
a successive petition within the meaning of 28 U.S.C. §
2244(b)(2). Magwood filed his first 28 U.S.C. § 2254
petition on July 20, 1983, and the district court ruled
on that petition on March 26, 1985. Magwood did not
argue his fair-warning claim in his first habeas
petition, although the aggravator averred in the
indictment was his sole aggravator. Magwood filed an
application in this Court for permission to file a second
habeas corpus petition in the district court challenging
his conviction, which we denied. /n re Magwood, 113
F.3d 1544, 1553 (11th Cir. 1997). In his application for
permission to file a second petition, he did not mention
his fair-warning claim. The current petition on appeal
is the first federal habeas petition in which Magwood
asserts his fair-warning claim.
According to 28 U.S.C. § 2244(b)(2):
A claim presented in a second or successive
habeas corpus application under section 2254
lla
that was not presented in a prior application
shall be dismissed unless—
(A) the applicant shows that the claim relies
on a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was _ previously
unavailable; or
(B)Gi) the factual predicate for the claim could
not have been discovered previously through
the exercise of due diligence; and
(ii) the facts underlying the claim, if proven
and viewed in light of the evidence as a whole,
would be sufficient to establish by clear and
convincing evidence that, but for
constitutional error, no reasonable factfinder
would have found the applicant guilty of the
underlying offense.
Magwood does not argue that his case fits into one
of these exceptions. Instead, he asserts the fair-
warning claim is not successive because he challenges
only the state trial court’s application of Ayzer at his
resentencing, not at his original sentencing. Because
he limits his fair-warning claim to the resentencing, he
contends he necessarily could not have challenged it in
his first habeas petition.
The district court concluded that, based on Fx
parte Green, 215 F.3d 1195 (11th Cir. 2000),
Magwood’s fair-warning claim is not successive within
the meaning of AEDPA. In Green, the petitioner filed
an application seeking an order authorizing the
12a
district court to consider a second or successive
petition under 28 U.S.C. § 2255. Jd. at 1195. Green
pled guilty to possession with intent to distribute
cocaine base and was sentenced. After the district
court was affirmed on direct appeal, Green filed his
first 28 U.S.C. § 2255 petition. Jd. The district court
granted the petition with respect to Green’s Bailey v.
United States, 516 U.S. 137 (1995), claim, and denied
relief as to all other claims. Green, 215 F.3d at 1195-
96. Green appealed, but this Court did not issue a
certificate of appealability. The district court then held
a resentencing and entered an amended judgment.
Green thereafter filed a second § 2255 motion, alleging
his counsel rendered ineffective assistance at
resentencing. The district court found the motion
constituted a second or successive motion because
Green’s claims concerned the same conviction attacked
in his first § 2255 motion. /d. at 1196.
Green applied for permission to file a successive §
2255 petition in this Court, which we denied as
unnecessary, reasoning Green’s § 2255 motion
attacked only his amended sentence. “Because Green
attacks the constitutionality of his re-sentencing
proceeding only, and not the validity of his conviction,
we hold this § 2255 motion is not ‘second or
successive.’ Green obviously could not challenge his
counsel’s effectiveness at re-sentencing at the time he
filed his first § 2255 motion.” /d at 1196. We
concluded his application to file a successive motion
was unnecessary because the motion attacked for the
first time a sentence that was not yet imposed at the
time of his first § 2255 motion. /d.
l3a
Green's ineffective assistance of resentencing
counsel is distinguishable from Magwood’s §fair-
warning claim in one important respect. Unlike
Green’s claim, Magwood’s fair-warning claim was
available when he filed his first § 2254 petition.
Greens. ineffective assistance of counsel at
resentencing claim necessarily was not available until
after Green’s resentencing. Magwood’s fair-warning
claim was available when he filed his first petition, as
his only aggravating factor at his first sentencing was
the same one charged in the indictment. We now must
consider whether Magwood may bring this fair-
warning claim even though it was available when he
filed his first petition.
We noted this possibility in Wa/ker v. Crosby, 341
F.3d 1240, 1245 n.4 (11th Cir. 2003). In Walker, we
concluded Walker’s § 2254 petition was not second or
successive because his first petition was dismissed
without prejudice for failure to exhaust state remedies,
and thus we had “no occasion to decide whether and to
what extent § 2244(b) allows a petitioner, who filed
one habeas application and is then resentenced, to
bring another habeas application that, in part,
challenges his resentencing.” /d. We further noted
“{o]ther courts have suggested that in such a case the
district court is allowed to separate the new claims
challenging the resentencing from the old claims that
were or should have been presented in the prior
application.” /d. (citing /n re Taylor, 171 F.3d 185, 188
n.* (4th Cir. 1999); Walker v. Roth, 133 F.3d 454, 455
n.1 (7th Cir. 1997); Ga/tieri v. United States, 128 F.3d
33, 37-38 (2d Cir. 1997)).
l4a
We now have occasion to answer the question
noted in Walker — “whether and to what extent §
2244(b) allows a petitioner, who filed one habeas
application and is then resentenced, to bring another
habeas application that, in part, challenges his
resentencing.” 341 F.3d at 1245 n.4. We find
persuasive the Second Circuit’s analysis in Ga/tieri,
128 F.3d at 37-38. In that case the Second Circuit
noted AEDPA does not define what constitutes a
second or successive petition in either § 2255 or §
2254. Any petition for habeas relief that is filed after a
prior one cannot automatically be discounted as being
successive, however, because a petitioner could be
successful in a first petition and succeed in receiving a
new sentencing hearing. A second petition after
resentencing could challenge errors from the amended
sentence. /d. at 37. The Second Circuit disapproved,
however, of considering the second petition after
resentencing as a first petition challenging the
amended sentence.
That approach . .. would permit every
defendant who succeeds in having any
component of his sentence modified to bring a
renewed challenge . .. to the unamended
components of his original sentence, raising
grounds that were either available for
presentation on the first petition or even
specifically rejected on that petition. Congress,
in enacting sections [2255 and 2254] to
sharply restrict repetitive habeas petitions,
could not have wanted such an indulgent
result.
Id. at 37. The Second Circuit then concluded:
15a
(W]henever a first 2255 petition succeeds in
having a sentence amended, a subsequent
2255 petition will be regarded as a “first”
petition only to the extent that it seeks to
vacate the new, amended component of the
sentence, and will be regarded as a “second”
petition to the extent that it challenges .. .
any component of the original sentence that
was not amended.
Id. at 37-38.
Applying this approach in Magwood’s case, those
claims seeking to challenge the new, amended
component of the sentence are regarded as part of a
first petition, and those claims seeking to challenge
any component of the original sentence that was not
amended are regarded as part of a second petition.
Here, the fair-warning claim was available at
Magwood’s original sentencing. On resentencing, the
exact same aggravator—the one alleged in the
indictment as allowed by Kyzer—was used again. As
Magwood’s fair-warning claim was available at his
original sentencing, Magwood’s claim is successive and
is governed by 28 U.S.C. § 2244(b)(2).4 This claim is
* Magwood asserts under Burton v. Stewart, 549 U.S. 147, 156-57
(2007), this claim is not successive because he is challenging the
judgment under which he is in custody-the resentencing. The
problem with Magwood’s argument is that he could have, and did,
challenge his sentence which contained the same purported error
in his first habeas petition.We applied Burton in Ferreira v. Sec’y,
Dept of Corr., 494 F.3d 1286 (11th Cir. 2007) (Ferresra II). In
Ferreira Il, we reconsidered our earlier decision that Ferreira’s
petition for habeas corpus was time-barred. Ferreira v. Sec’y,
16a
due to be dismissed because it is successive, and
Magwood does not assert it fits into one of §
2244(b)(2)’s exceptions. Thus, we reverse the district
court’s grant of relief on this claim, and dismiss
Magwood’s fair-warning claim as successive.
2. Ineffective assistance of counsel on the fair-
warning clarm
The State claims the district court erred when it
concluded Magwood’s attorney was constitutionally
ineffective during his resentencing because he failed to
argue that the retroactive application of Ayzer to
Magwood’s case was a violation of due process.
In order for Magwood to obtain relief on his
ineffective assistance of counsel claim, he must show
Dep't of Corr., 183 Fed. Appx. 885 (11th Cir. 2006) (Ferreira 1).
We held in Ferrefra 1 that when a petitioner who has been
resentenced challenges only his underlying conviction in a habeas
petition, the one-year statute of limitations in AEDPA runs from
the date the conviction became final, regardless of when the
petitioner's corrected sentence became final. After considering
Burton, Ferreira II held “that AEDPA’s statute of limitations
runs from the date the judgment pursuant to which the petitioner
is in custody becomes final, which is the date both the conviction
and sentence the petitioner is serving becomes final.” Ferreira II,
494 F.3d at 1288. Thus, Ferreira’s challenge to his conviction,
filed after his resentencing, was timely. /d at 1293. Our
conclusion in Ferreira does not affect this case, however, because
(1) Ferreira was deciding a statute of limitations issue; and (2)
Ferreira was challenging his conviction, which he had not
challenged in his first habeas petition.Conversely, Magwood
challenged his sentence (which contained the same purported
error) in his original habeas petition, thus his fair-warning claim
is successive.
17a
(1) “counsel’s representation fell below an objective
standard of reasonableness,” and (2) “there is a
reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different.” Strickland v. Washington,
466 U.S. 668, 688, 694 (1984). Counsel’s effectiveness
is presumed, and “[a] fair assessment of attorney
performance requires that every effort be made to
eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s
perspective at the time.” /d. at 689. “[C]ounsel cannot
be adjudged incompetent for performing in a particular
way in a case, as long as the approach taken ‘might be
considered sound trial strategy.’ ” Chandler v. United
States, 218 F.3d 1305, 1314 (11th Cir. 2000) (en banc)
(quoting Darden v. Wainwright, 477 U.S. 168, 186
(1986)). “To overcome [the] presumption in favor of
competence, the petitioner bears the heavy—but not
insurmountable—burden of persuading the court ‘that
no competent counsel would have taken the action that
his counsel did take.’ ” Haliburton v. Sec’y for Dep't of
Corr., 342 F.3d 1233, 1243 (11th Cir. 2003) (quoting
Chandler, 218 F.3d at 1314-15).
Magwood asserted the ineffective assistance of
counsel at resentencing on the fair-warning claim on
collateral review in state court, where both the trial
court and Alabama Court of Criminal Appeals rejected
it. The district court disagreed with the state courts’
conclusions, and found counsel was ineffective for
failing to argue to the resentencing court that the
retroactive application of Ayzer to Magwood’s case was
a violation of the due process clause. Th district court
had already concluded the state trial court violated the
18a
fair-warning component of the due process clause by
retroactively applying Ayzer to Magwood’s case. The
district court found that at the resentencing hearing,
Magwood’s counsel stated the court could sentence
Magwood to death without finding an aggravating
circumstance in § 13-11-6. Defense counsel stated:
We say to Your Honor, as we did in some
proposed findings that we submitted to you,
that the capital offense itself is an aggravating
circumstance and that this Court has every
right to consider it as an aggravating
circumstance.
Applying Strick/and, the district court concluded
the combination of defense counsel misstating the law
as it was clearly established by United State Supreme
Court precedent in Boure v. City of Columbia, 378 U.S.
347 (1964), and failing to argue against the retroactive
application of Ayzer, was deficient performance by
counsel. Magwood, 481 F. Supp. 2d at 1292-93.
The district court relied on Cave v. Singletary, 971
F.2d 1513 (11th Cir. 1992), in finding Magwood’s
counsel deficient. In Cave, the defendant’s attorney
emphasized the fact the defendant was guilty of
robbery and essentially conceded the State had proven
its case as to guilt. Defense counsel did not understand
her client could be convicted of felony murder if he
participated in a robbery, and so made the nonsensical
argument to the jury that, although he committed the
robbery, he was not guilty of felony murder. /d. at
1517-18. We found counsel’s performance deficient. /d.
19a
The district court also concluded Magwood’s
counsel’s deficient performance was prejudicial. If
counsel had been able to successfully argue a death
sentence violated the fair-warning principle of the due
process clause, the district court reasoned the outcome
of the case would surely have been different. Magwood,
481 F. Supp. 2d at 1293.
The district court then addressed whether the
state court was unreasonable in rejecting Magwood’s
ineffectiveness claim. The Alabama Court of Criminal
Appeals rested its holding on the fact the lawyer had
no substantive role in the resentencing. The district
court found this conclusion unreasonable, whether
regarded as a legal issue or a factual issue. The
Alabama court’s holding was not consistent with legal
requirements, clearly established by the United States
Supreme Court, that individualized consideration of
the aggravating and mitigating factors is required.
Zant v. Stephens, 462 U.S. 862, 879 (1983). The
holding was also not consistent, factually, with what
actually happened at resentencing. Thus, the district
court found the Alabama court’s holding, that counsel’s
performance was adequate because the federal courts
only ordered a_ resentencing court to find the
mitigating circumstances, unreasonable and concluded
habeas relief was due to be granted on this claim.
Magwood, 481 F. Supp. 2d at 1293-95.
We conclude the district court erred in holding
that counsel’s performance was deficient. While there
was a possible objection, Alabama’s highest court had
said in Ayzer that a § 13-11-2 aggravating factor could
be used as an aggravating circumstance. We are not
prepared to require counsel to raise an argument that
20a
has already been decided adversely to his client’s
position by a state’s highest court in order to avoid
being found ineffective. The district court relies on
Cave, and in that case, counsel did not understand the
felony murder rule—a much more elementary legal
concept. Magwood has failed to overcome the
presumption in favor of competence. Because we do
not find the performance of Magwood’s counsel
deficient, we need not discuss the prejudice prong. See
Strickland, 466 U.S. at 687 (“Unless a defendant
makes both showings, it cannot be said that the
conviction or death sentence resulted from a
breakdown in the adversary process that renders the
result unreliable.”). Thus, we reverse the district
court’s holding that Magwood’s resentencing counsel
was ineffective in failing to argue the retroactive
application of Ayzerwas a violation of due process.
B. Magwood’s Cross-Appeal
Magwood asserts multiple issues on cross-appeal.
Specifically, he asserts the district court erred in
denying him discovery and an evidentiary hearing on
his claim he was denied effective assistance of counsel.
Magwood asserts counsel was ineffective for failing to
investigate and present any evidence at _ his
resentencing, including mitigating evidence that was
later obtained and proffered to the Alabama courts in
the collateral challenge to his sentence, and appended
to his habeas corpus petition in the district court.
Magwood also contends the district court erred in
denying him relief on the remainder of his ineffective
assistance of counsel claims, including that his
counsel: (1) failed to demand a jury at resentencing; (2)
permitted the resentencing court to rely on the jury
2la
recommendation from the first sentencing and the
State’s wholesale introduction of the record, including
inadmissible evidence from the trial and _ first
sentencing; and (3) failed to object to the
unconstitutional grounds of his resentencing.
Magwood next contends the district court erred in
declining to consider the merits of his claims that
Alabama had suppressed internal departmental
reports and documents that directly belied the
Alabama court’s expressed bases for reimposing a
sentence of death notwithstanding the two statutory
mental state mitigating circumstances, in violation of
Brady v. Maryland, 373 U.S. 83 (1963), and in denying
discovery and an_ evidentiary hearing’ thereon.
Magwood also asserts the district court erred by not
granting him relief from his death sentence on the
ground it was freakish and arbitrary, insofar as
Magwood is the sole Alabamian to ever have been
sentenced to death: (1) in the absence of at least one of
the aggravating circumstances required by statute; or
(2) having committed a capital offense while suffering
from a mental disease that placed him under the
influence of extreme mental disturbance and so
impaired his capacity to appreciate the criminality of
his act and to conform his conduct to the requirements
of the law that those enumerated Alabama statutory
mitigating circumstances were met, in violation of the
Eighth and Fourteenth Amendments. Magwood next
argues the district court erred in denying relief on his
claims that the resentencing court, in response to the
federal court’s writ vacating his first death sentence,
merely substituted for its refusal to recognize the
existence of Alabama’s two statutory mental capacity
mitigating circumstances, findings of his purported
capacity that were the equivalent of their earlier
22a
refusal and, therefore, were incompatible with the
prior writ, and that he was denied effective assistance
due to his counsel’s failure to object to the sentence on
that ground. Finally, Magwood asserts Alabama
unconstitutionally deprived Magwood of a jury on
resentencing and he was involuntarily medicated and
presented to the Alabama courts as competent and of
apparent capacity.
After hearing oral argument and reviewing the
record and the parties’ briefs, we find no error in the
district court’s denial of relief on the above-listed
claims. Thus we affirm the district court’s denial of
relief on these claims.
IV. CONCLUSION
We REVERSE the district court’s grant of relief on
Magwood’s fair-warning claim and _ ineffective
assistance of counsel on Magwood’s fair-warning
claim. We AFFIRM the district court’s denial of relief
on the claims Magwood asserts in his cross-appeal.
Thus, we render judgment in favor of the State.
REVERSED IN PART; AFFIRMED IN PART.
23a
APPENDIX B
UNITED STATES DISTRICT COURT
M.D. ALABAMA,
Northern Division.
Billy Joe MAGWOOD, Petitioner,
Vv.
Grantt CULLIVER, Warden, et al., Respondents.
No. 2:97 cv629-MHT
April 9, 2007.
OPINION
MYRON H. THOMPSON, District Judge.
This case is before the court on petitioner Billy Joe
Magwood’s third habeas petition, in which he
challenges his 1986 death sentence on the grounds
that it violates the Sixth Amendment, the Eighth
Amendment, and the Fourteenth Amendment, as well
as this court’s 1985 conditional grant of habeas corpus.
Specifically, Magwood argues that the Alabama courts
failed to conduct a proper proportionality review of his
sentence; that the Alabama courts relied on arbitrary
and non-statutory aggravating factors in finding that a
death sentence was appropriate; that his mental
illness rendered him ineligible for the death penalty;
that his sentence violates the fair-warning principle of
24a
due process; that the state sentencing court’s findings
at his 1986 resentencing were inconsistent with this
court’s 1985 conditional grant of habeas corpus; that a
jury should have been empaneled at his 1986
resentencing; that his counsel was unconstitutionally
ineffective; and, finally, that he was involuntarily
medicated in violation of due process.
For the reasons that follow, the petition will be
granted as to Magwood’s fair-warning claim and the
aspect of the ineffective-assistance claim that flows
from it, and the petition will be denied in all other
aspects.
I. STANDARD OF REVIEW
The standard of review in this case is governed by
the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA). AEDPA provides that, where claims
were originally adjudicated in state court, relief on
claims included in an application for a writ of habeas
corpus can be granted only under two circumstances.
First, as to matters of law, relief may be granted only
where the state-court adjudication resulted in a
decision that was contrary to, or an unreasonable
application of, clearly established federal law, as that
law is set forth by the United States Supreme Court.
28 U.S.C. § 2254(d)(1). Second, as to matters of fact,
relief may be granted only where the state court’s
determination of the facts was unreasonable in light of
the evidence presented to the state court. 28 U.S.C. §
2254(d)(2).
In Williams v. Taylor, 529 U.S. 362 (2000), the
United States Supreme Court held that a decision is
25a
“contrary to” clearly established federal law if the state
court has arrived at a conclusion opposite one reached
by the United States Supreme Court on a question of
law, or if the state court has decided a case differently
from the way the United States Supreme Court has on
materially indistinguishable facts. 529 U.S. at 405. An
“unreasonable application” of that law occurs where
the state court identifies the correct legal standard
from the United States Supreme Court’s cases, but
unreasonably applies it; an “unreasonable application”
also occurs where a state court unreasonably extends,
or refuses to extend, a legal principle from those cases.
Id. at 407.
Il. BACKGROUND
A. Conviction and First Habeas Petition
Magwood was convicted on June 2, 1981, for the
capital murder of the Shenff of Coffee County,
Alabama, C.F. “Neil” Grantham, which occurred on
March 1, 1979. Thereafter, he was sentenced to death
by electrocution. Following exhaustion of his remedies
in state court, Magwood filed a federal-habeas petition
in this court under 28 U.S.C. § 2254 challenging his
conviction and sentence. This court denied the petition
as to Maywood’s conviction, but found that he should
be resentenced based on the sentencing court’s failure
to find the existence of the following two statutory
mitigating circumstances: (1) the capital felony was
committed while Maywood was under the influence of
extreme mental or emotional disturbance, and (2)
Magwood’s capacity to appreciate the criminality of his
conduct or to conform his conduct to the requirements
of law was substantially impaired. Magwood v. Smith,
26a
608 F. Supp. 218, 225 (M.D. Ala. 1985) (Hobbs, C.J.),
affd, 791 F.2d 1438 (11th Cir. 1986).
According to this court, the state trial court’s
failure to find the existence of these mitigating
circumstances was clearly erroneous in light of the
overwhelming evidence regarding Magwood’s mental
condition at the time of the offense. /d. at 226. This
court noted that the State’s only evidence that
Magwood was sane came from two_ general
practitioners who examined Magwood for 15 and 30
minutes, respectively, and a clinical psychologist who
conceded that Magwood suffered from paranoid
schizophrenia and that he examined Magwood two
years after the offense conduct and while he was
strongly medicated. /d. By contrast, the unanimous
opinion of the three physicians on the Lunacy
Commission appointed by the trial court to examine
Magwood was that Magwood was insane at the time of
his admission to their hospital, at the time they issued
their report, and probably at the time of the
commission of the offense. /d. According to one
psychiatrist on the commission, “Billy Joe Magwood
falls into the category that would be called crazy in
Stockholm; he would be called crazy in Calcutta, in
Tokyo, any place. He is a schizophrenic. He is not in
the borderline category.” /d.
This court acknowledged that the jury’s conclusion
in the guilt phase of the trial that Magwood was not
legally insane was due deference by the federal courts.
“Accordingly, while in this Court’s opinion the
evidence seems particularly strong that petitioner was
insane at the time of the offense, this issue is properly
left to the state courts. The matter of the existence of
27a
mitigating circumstances, however, is an altogether
different matter.” /d. at 227. Because the state court
committed clear error in not finding the mitigating
circumstances related to Magwood’s mental state, this
court granted habeas relief conditional upon a
resentencing in which the mitigating circumstances
are found to exist and considered in determining
whether Magwood should receive a sentence of death
or life without parole.
B. 1986 Resentencing
In 1986, the state trial court conducted a “complete
and new” sentencing hearing, including “a new
assessment of all of the evidence, arguments of
counsel, and law” and a “new .. . opportunity for the
parties to submit evidence.” Sent. Tr., R. Tab 1, at R-
25. The sentencing judge found that the mitigating
factors found by this court were present, but that
Magwood was not legally insane at the time of the
crime and that his mental defect was not the sole
cause of the murder. /d. at R-26. The court also found
that Magwood knew right from wrong, and had the
ability to refrain from killing the sheriff. /d. The trial
court further found one aggravating factor: that
Magwood killed a law enforcement officer because of
official job-related acts. Jd. at R-25. Magwood’s
attorney at resentencing, J.L. Chestnut, Jr., stated
that the aggravating factor existed, submitting it in
Magwood’s proposed findings. /d. at R-17. After
weighing the mitigating and aggravating
circumstances as it found them, the sentencing court
again sentenced Magwood to death by electrocution.
Id. at. R-28 to R-29.
28a
The Alabama Court of Criminal Appeals affirmed
the trial court, Magwood v. State, 548 So.2d 512 (Ala.
Cr. App. 1988), and the Alabama Supreme Court, in
turn, affirmed that decision, Ex parte Magwood, 548
So.2d 516 (Ala. 1988). The United States Supreme
Court denied a petition for a writ of certiorari.
Magwood v. Alabama, 493 U.S. 923 (1989). Magwood
then filed for post-conviction relief under Alabama’s
former Criminal Procedure Temporary Rule 20 (now
Ala. R. Crim. P. 32). His petition was denied by the
trial court and by the Alabama Court of Criminal
Appeals. Magwood v. State, 689 So.2d 959 (Ala. Cr.
App. 1996).
Magwood then simultaneously filed two petitions
in federal courts. First, he submitted a request for
permission to file a second habeas petition challenging
the 1981 judgment of conviction to the Eleventh
Circuit Court of Appeals. The Eleventh Circuit denied
this second petition. Jn re Magwood, 113 F.3d 1544
(llth Cir. 1997). Second, he filed a habeas petition
under 28 U.S.C. § 2254 in this court seeking relief
from his 1986 sentence. This third petition is the
subject of this opinion.
C. Procedural Posture of this Petition
This court split the proceedings on the current
petition into two stages: Stage I (determining whether
the claims were procedurally defaulted) and Stage II
{considering the merits of the claims that were not
procedurally defaulted). Having found at Stage I that
some claims were procedurally defaulted, Magwood v.
Jones, 472 F. Supp. 2d 1333 (M.D. Ala. 2007)
29a
(Thompson, J.), this court now goes on to consider the
claims that are not defaulted.
D. Alabama’s Death-Penalty Scheme
In order to understand Magwood’s claims, it is
necessary to understand the development of Alabama’s
death-penalty scheme during the time period relevant
here. There are essentially three eras of the Alabama
death penalty during this period of time. See generally
Colquitt, The Death Penalty Laws of Alabama, 33 Ala.
L. Rev. 213 (1982). The first era involves the operation
of Alabama’s 1975 capital statute before the Alabama
Supreme Court reinterpreted it in Beck v. State, 396
So.2d 645 (Ala. 1981), and Ex parte Kyzer, 399 So.2d
330 (Ala. 1981). Relevant parts of that statute, set
forth in Title 13, Chapter 11 of the former Alabama
Code, are attached as an appendix to this opinion.
Under the 1975 statute, a defendant was charged with
one of 14 aggravated offenses enumerated in former
1975 Ala. Code § 13-11-2(a), including § 13-11-2(a)(5),
“The murder of any . . . sheriff. . . or peace officer of
any kind. . . because of some official or job-related act
or performance of such officer. .. .” The jury’s function
was to determine whether the defendant was guilty of
the charged offense. If the defendant was guilty, the
jury was “to fix the punishment at death.” /d. § 13-11-
2(a). At that point, “[njotwithstanding the fixing of the
punishment at death by the jury,” sd. § 13-11-4, the
trial judge took over sentencing “to determine whether
or not the court will sentence the defendant to death or
to life imprisonment without parole,” 7d. § 13-11-3.
Following a hearing, the court was required to weigh
eight aggravating and seven mitigating circumstances,
as enumerated in §§ 13-11-6 and -7, respectively. Jd. §
30a
13-11-4. Then, “liJf the court imposes a sentence of
death, it shall set forth in writing, as the basis for the
sentence of death, findings of fact from the trial and
the sentence hearing, which shall at least include...
folne or more of the aggravating circumstances
enumerated in section 13-11-6, which it finds exists in
the case and which it finds sufficient to support the
sentence of death.” /d. Therefore, under the 1975
statute, the trial judge was the final sentencing
authority, Jacobs v. State, 361 So.2d 640, 644 (Ala.
1978), and a sentence of death was permitted only
upon her finding that aggravating circumstances in §
13-11-6 outweighed mitigating circumstances in § 13-
11-7.
The second era involved the operation of the 1975
statute after its interpretation by the Alabama
Supreme Court in two decisions, Beck v. State and Ex
parte Kyzer. Following a series of decisions by the
United States Supreme Court, including but not
limited to Beck v. Alabama, 447 U.S. 625 (1980), the
Alabama Supreme Court undertook an examination of
the 1975 statute to ensure that it met constitutional
standards. In Beck v. State, 396 So.2d 645 (Ala. 1981)
(on remand), rather than require the state legislature
to re-write the statute to conform to constitutional
requirements recently set out in decisions of the
United States Supreme Court, the Alabama Supreme
Court found that the Alabama legislature intended to
write a constitutional statute, 396 So.2d at 660, and,
accordingly, “exercise[d] its inherent power to
formulate guidelines which the Supreme Court of the
United States has judicially determined to be
constitutionally required in death cases,” id. at 648.
These “guidelines” included the requirement,
3la
mandated by Beck v. Alabama itself, that the jury be
permitted to consider lesser included offenses. Jd. at
658-59. They also entailed a revised procedure that
made the jury more involved in the sentencing phase
of the case. Jd. at 662-63. Under the procedures
outlined in Beck, the trial would be “trifurcated” into a
guilt phase, an advisory sentencing phase in which the
jury was instructed on and required to weigh the
aggravating and mitigating circumstances, and a final
sentencing phase in which the judge was required to
weigh the aggravating and mitigating circumstances.
Id.
Whereas Seck reformulated various procedures for
capital cases, Ex parte Kyzer addressed _ the
aggravating circumstances the trial court was
permitted to consider when it determined whether to
sentence a defendant to death or life imprisonment
without parole. In Ayzer, the Alabama Supreme Court
posed the question of whether a defendant convicted of
one of the 14 aggravated offenses enumerated in
former 1975 Ala. Code § 13-11-2(a) could be sentenced
to death without the trial court finding the existence of
one of the eight enumerated = aggravating
circumstances in § 13-11-6.' The court acknowledged
that a-“literal and technical reading of the statute”
precluded a death sentence in the absence of any
aggravating circumstance in § 13-11-6. Ayzer, 399
So.2d at 337; see former 1975 Ala. Code § 13-11-4 (“If
' In fact, the real question in Ayzer was whether a new trial was
required in light of Beck v. Alabama, 447 U.S. 625, and the
Alabama Supreme Court answered this question in the
affirmative. The remainder of the opinion in Ayzer, including its
discussion of the aggravating circumstances required for a
sentence of death, is dictum.
32a
the court imposes a sentence of death, it shall set forth
in writing, as the basis for the sentence of death,
findings of fact from the trial and the sentence
hearing, which shall at least include . . . [o]Jne or more
of the aggravating circumstances enumerated in
section 13-11-6, which it finds exists in the case and
which it finds sufficient to support the sentence of
death.”). However, and notwithstanding the language
of the statute, the Alabama Supreme Court held that
the legislature did not intend to limit the trial court’s
consideration of aggravating and _ mitigating
circumstances to those enumerated in §§ 13-11-6 and -
7. Kyzer, 399 So.2d at 338. Rather, the trial court
could consider the aggravated offense enumerated in §
13-11-2 and averred in the indictment as an
aggravating circumstance for sentencing purposes. /d.
If the aggravation of the offense itself outweighs any
mitigating circumstances, the court held, the trial
judge could sentence the defendant to death even in
the absence of an aggravating circumstance
enumerated in § 13-11-6. /d.
According to the Alabama Supreme Court, this
conclusion was required in order to resolve an
“anomaly” in the statute resulting from the fact that
“there is a corresponding aggravating circumstance for
most, but not all, of the aggravated offenses.” Jd. at
334. If the jury found the defendant guilty of the
aggravated offense but the trial judge could not find
the existence of an aggravating circumstance, this
“would be completely illogical and would mean the
legislature did a completely useless act by creating a
capital offense for which the defendant could not
ultimately receive the death penalty.” /d. at 337.
Reasoning that it could “think of no reason why the
33a
legislature would intend such a result,” /d., and that it
could not “assume that the legislature did a useless
act,” id. at 338, the court held that, notwithstanding
this “literal and technical reading of the statute,” sd. at
337, the legislature intended to permit the trial judge
to consider the aggravated offense averred in the
indictment as an aggravating circumstance sufficient
to impose the death penalty. /d. at 338.’
The third era of the Alabama death penalty began
on July 1, 1981, when a new death-penalty statute
took effect. The 1981 statute codified many of the
* When the Beck decision was initially released, it apparently did
not reflect the interpretation of the statute later announced in
Kyzer. Beck was initially issued on December 19, 1980, but it was
modified and reissued on March 6, 1981, the same day the court
issued its decision in Ayzer. According to Judge Colquitt’s law
review article on the death-penalty laws of Alabama, the
December 1980 version of Beck stated that “a finding by the jury
that the defendant was guilty of committing the capital offense,
along with a finding of one or more of the aggravating
circumstances set out in 13-11-6, would be a sufficient finding
which the jury could weigh in determining whether to impose the
death penalty.” Colquitt, supra, at 284-85 (quoting Beck v. State,
No. 77-530 (original manuscript Dec. 19, 1980)). Subsequently,
the Alabama Supreme Court modified its original opinion and
issued the final version on March 6, 1981, the same day it decided
Kyzer. According to the final version of Beck, “the jury verdict
that the defendant was guilty of committing the capital offense
would mean that the State had already established at least one
aggravating circumstance, even though the legislature did not
include an aggravating circumstance in § 13-11-6 to correspond
with the ‘aggravation’ made a part of each capital offense by § 13-
11-2(a).” Beck, 396 So.2d at 663. To the best of this court’s
knowledge, the original version of Beck as quoted in Judge
Colquitt’s law review article has not been made a part of the
record in this case.
34a
changes made by the Alabama Supreme Court in Beck.
But it also rejected Ayzer’s rule on aggravating
circumstances: “Unless at least one aggravating
circumstance as defined in section 13A-5-49 exists, the
sentence shall be life imprisonment without parole.”
1975 Ala. Code § 13A-5-45(f). Therefore, under the
1981 statute, the trial court could not sentence a
defendant to death based on a finding that the
aggravated offense constituted the only aggravating
circumstance.
III. DISCUSSION
This court now turns to the merits of Magwood’s
claims.
A. Freakish, Arbitrary, and Disproportionate
Imposition of the Death Penalty
Magwood claims that his death sentence was
freakish, arbitrary, and disproportionate in violation of
the Fourteenth Amendment’s due process clause and
the Eighth Amendment. Magwood points to three
circumstances that he _ claims’ violated his
constitutional rights: (1) the state courts’ failure to
conduct adequate “proportionality review” of his death
sentence; (2) the sentencing court’s reliance on “non-
statutory and arbitrary factors” in imposing the death
sentence; and (3) his mental illness, which he argues
disqualified him from the death penalty.
1. Proportionality Review
Magwood claims that he was denied due process
when the state appellate courts refused to vacate his
35a
death sentence under Alabama’s requirement of
“proportionality review.” In Beck v. State, 396 So.2d at
664, the Alabama Supreme Court held that, pursuant
to the United States Supreme Court’s decision in
Gregg v. Georgia, 428 U.S. 153 (1976), “proportionality
review” would be required in Alabama: “Each death
sentence should be reviewed to ascertain . . . whether
similar crimes throughout the State are being
punished capitally and whether the sentence of death
is appropriate in relation to the particular defendant.”
Beck, 396 So.2d at 664. Magwood claims that, in his
case, the Alabama appellate courts failed in their
obligation to review his sentence for proportionality.
He argues that, under Alabama law, the death penalty
is never inflicted upon a person with an impaired
mental condition such as his own and that no other
capital defendant has been sentenced to death without
the existence of an aggravating circumstance
enumerated in former 1975 Ala. Code § 13-11-6.
This court must reject Magwood’s proportionality
claim. Under the federal-habeas statute, this court
entertains an application for a writ of habeas corpus
only on the ground that the petitioner is in custody in
violation of the Constitution, laws, or treaties of the
United States. 28 US.C. § 2254(a). Proportionality
review, however, is not required by the Constitution.
Pulley v. Harris, 465 U.S. 37 (1984). In cases where
state law requires proportionality review, federal-
habeas courts should not review the substance of state
courts’ conclusions based on such review. Mi//s v.
Singletary, 161 F.3d 1273, 1281-82 (11th Cir. 1998);
Moore v. Balkcom, 716 F.2d 1511, 1518 (11th Cir.
1983).
36a
It may be true that once state law requires
proportionality review, as it does in Alabama, then the
due process clause applies to the extent that the State
cannot deny proportionality review without duc
process of law. See Foster v. Delo, 39 F.3d 873, 882
(8th Cir. 1994) (en banc); Banks v. Horn, 939 F. Supp.
1165, 1175 (M.D. Pa. 1996) (McClure, J.), vacated on
other grounds, 126 F.3d 206 (3d Cir. 1997). However,
also consistent with due-process principles, where the
state court undertakes proportionality review “in good
faith” and concludes that the proportionality principle
was not violated, the Constitution does not require the
federal court “to look behind that conclusion.” Wa/ton
v. Arizona, 497 U.S. 639, 656 (1990), overruled on
other grounds by Ring v. Arizona, 536 U.S. 584 (2002).
In this case, the Alabama Court of Criminal
Appeals conducted proportionality review as required
by Beck. Magwood v. State, 548 So.2d 512, 513 (Ala.
Cr. App. 1988). This court, having reviewed the state
court’s opinion, sees nothing in the record to indicate a
lack of good faith in that court’s proportionality
review. Accordingly, Magwood’s proportionality claim
at the habeas stage must be rejected.
2. Consideration of “Non-Statutory” Aggravating
Factors
Magwood argues that his sentence violates the
Constitution because the state court exceeded its
statutory authority, resulting in a sentence that is
arbitrary. First, Magwood contends that Alabama
state law, during the time period relevant here,
authorized a sentence of death only where the
37a
sentencing authority found at least one circumstance
listed in § 13-11-6 and that no such circumstance was
found by Magwood’s sentencing court. Second,
Magwood contends that other “non-statutory” factors
were unconstitutionally employed.
a.
First, Magwood argues that the finding of an
aggravated offense set forth in § 13-11-2 alone,
without a finding of an aggravating circumstance
listed in § 13-11-6, is insufficient as a matter of state
law to sentence him to death. He contends that the
sentencing court, by sentencing him to death in the
absence of a finding of an aggravating circumstan_e
found in § 13-11-6, ran afoul of the constitutional
requirement that a capital sentencing be based on the
application of “clear and objective standards” which
“channel the sentencer’s discretion.” Godfrey vv.
Georgia, 446 U.S. 420, 428 (1980) (internal citations
omitted). He thus relies on the United States Supreme
Court’s prohibition on the arbitrary imposition of the
death penalty in support of his argument. “Since
Furman, [the capital sentencing] cases have insisted
that the channeling and limiting of the sentencer’s
discretion in imposing the death penalty is a
fundamental constitutional requirement for
sufficiently minimizing the risk of wholly arbitrary
and capricious action.” Maynard v. Cartwright, 486
U.S. 356, 363 (1988).
Magwood, in his briefs, assumes that the
aggravating factor cited by the sentencing judge was
non-statutory, as his position is that only those
aggravating circumstances listed in § 13-11-6 are
38a
statutory aggravating factors, and he argues that
there are no objective standards, by definition, in a
system in which the sentencing authority can employ a
non-statutory aggravating factor. In Magwood’s view,
the use of a factor that does not appear in § 13-11-6 as
the sole aggravating factor is equivalent to the sole
factor being impermissibly vague, see Godfrey, 446
U.S. 420; the imposition of the death penalty under
such circumstances is unpredictable and therefore
arbitrary and capricious.
As the above suggests, Magwood, throughout his
brief, frames his argument as presenting the question
whether a State may constitutionally sentence
someone to death based on a single aggravating factor
that is not found in the State’s capital-sentencing
statute. This is an open question, but it has been
suggested that such a sentence might violate the
Constitution. See, e.g., Henry v. Wainwright, 721 F.2d
990, 994 (5th Cir. 1983).
However, this constitutional question is not before
this court. What is at stake here is not whether a nor-
statutory factor can, consistently with the
Constitution, operate as an aggravating factor. By
claiming that his sertence was’ unconstitutional!
because it was based en a non-statutory factor,
Magwood relies on an unsound assumption about what
the statutory factors under state law were. Alabama
law, established by Ayzer, was that the aggravating
factor found in Magwood’s case—one of the aggravated
offenses set forth in § 13-11-2—was_ statutory
aggravating factor. Moreover, this factor is found in
the statute; at base, Magwood disputes merely the
state court’s holding that the legislature did not intend
39a
to require a finding of additional aggravating factor
beyond the aggravated offense set forth in § 13-11-2.
As discussed above, the Alabama Supreme Court
held in Ayzer that, as a matter of Alabama law, a
sentencing body need not find an aggravating
circumstance set forth in § 13-11-6 in order to impose a
sentence of death. Rather, a court need only find that
the aggravated offense (set forth in § 13-11-2) was an
aggravating factor in the crime. “Applying traditional
rules of statutory construction,” the Alabama Supreme
Court found in Ayzer that “the legislature intended to
punish capitally defendants found guilty of offenses
listed in § 13-11-2,” even though the offense is not set
forth as an aggravating circumstance in § 13-11-6.
Magwood’s argument hinges on this decision being
wrong as a matter of state law. Thus, as a threshold
matter, this case presents the question whether, when
a state court interprets its own Statec’s statute, this
court can find that the state court’s interpretation of
its own law is wrong and hold that the state court’s
interpretation therefore violates the Constitution.
This, this court cannot do.
As early as 1948, the Supreme Court stated that
neither it nor other federal courts are “at liberty to
conjecture that the [state] court acted under an
interpretation of the state law different from that
which we might adopt and then set up our own
interpretation as a basis for declaring that due process
has been denied.” Gryger v. Burke, 334 U.S. 728, 731
(1948). Since then, the Supreme Court and lower
federal courts have consistently held that, while
federal courts must enforce constitutional standards,
they are not free to ignore or reinterpret state law, as
40a
that law is interpreted by state courts. As the Supreme
Court emphasized in Wainwright v. Goode, 464 U.S.
78, 84 (1983), and reemphasized in Estelle v. McGuire,
502 U.S. 62, 67-68 (1991), “it is not the province of a
federal habeas court to reexamine _ state-court
determinations on state-law questions. In conducting
habeas review, a federal court is limited to deciding
whether a conviction violated the Constitution, laws,
or treaties of the United States.”
These decisions undermine the major premise of
Magwood’s argument: that the state court, in his
sentencing, acted outside the authority of state law. To
be sure, Magwood attempts to couch his argument
about the state courts’ interpretation of state law in
constitutional standards, but the premise of his
argument directly challenges the Alabama Supreme
Court’s interpretation of Alabama’s 1975 death-
penalty scheme. In order to prevail, Magwood would
have to convince this court that Ayzer does not
represent an authoritative interpretation of Alabama’s
capital-sentencing statute; that is, Magwood would
have to convince the court that Ayzer is not state law,
and that he has not done.
This court can, of course, review the consistency of the
Magwood’s sentencing with the United States
Constitution.
3 Magwood also does not appear to argue that the state courts’
interpretation of § 13-1i1-6 was “an obvious subterfuge to evade
consideration of a federal issue,” the “rare circumstance” in which
the federal courts are authorized to re-examine state-court
determinations of state law. Mullaney v. Wilbur, 421 U.S. 684,
691, n.11 (1975). Even if he did, this court would not find that
such a subterfuge occurred.
b.
Magwood also argues that the state sentencing
court, in imposing the death sentence, improperly
considered factors that, if employed, would be non-
statutory factors, such as the fact that the victim was
shot three times at close range with a pistol. Pet. at 56.
It appears that Magwood has not pursued this line of
argument in his merits brief. However, to the extent
Magwood has not abandoned it, this court would not
grant relief on that claim because the reasoning of
Goode controls here, too. The Alabama Court of
Criminal Appeals reviewed this claim at_ the
postconviction stage and held that the sentencing
court found the existence of only one aggravating
circumstance. Insofar as this is a finding of fact, this
court does not think it an “unreasonable” one. 28
U.S.C. § 2254(d)(2), see also Goode, 464 U.S. at 85.
Regardless of remarks the state trial court made
during the sentencing colloquy about’ the
circumstances and conditions of the offense conduct,
nothing in the record suggests that the court based its
sentence of death on factors other than che capital
offense and its elements (which, in this case,
constituted the aggravating circumstance) and its
weighing of that aggravating circumstance against the
mitigating circumstances it found existed in this case.
Furthermore, even if the sentencing court did
consider one or more non-statutory aggravating factors
in violation of state /aw, federal-habeas relief is
available to Magwood only if he can demonstrate a
violation of federal law. See Goode, 464 U.S. at 83-84;
see also 28 U.S.C. 2254(d)(1). Magwood would face a
42a
heavy burden in demonstrating that the consideration
of such factors in violation of state law “so infects the
balancing process created by the [Alabama] statute
that it is constitutionally impermissible . . . to let the
sentence stand.” Barclay v. Florida, 463 U.S. 939, 956
(1983) (emphasis added). See a/so Zant v. Stephens,
462 U.S. 862 (1983) (rejecting a similar claim because
“any possible impact [of the invalid aggravating factor]
cannot fairly be regarded as a constitutiona/ defect in
the sentencing process” (emphasis added)).
Accordingly, this court rejects Magwood’s claim that
the state-sentencing court considered non-statutory
aggravating factors in violation of the Constitution
when it sentenced Magwood to death.
3. Executing the Mentally III
In his merits brief, Magwood claims that it is a
violation of the Eighth Amendment to execute a
defendant who is as mentally ill as he is. Pet. Br. at
33-35. The State correctly points out that Magwood did
not present this claim in his petition for habeas
corpus, to which Magwood replies that it should be
considered part of his “proportionality” claim because
executing a person who had_= serious’ mental
impairment at the time of the offense would be
disproportionate to that defendant’s culpability. /d. at
34.
Insofar as Magwood intends to fold this claim into
his proportionality claim, it must be rejected for the
reasons already stated in the court’s discussion of
proportionality review: this court’s review is limited to
whether the state court undertook proportionality
43a
review in good faith, and this court finds that it did.
See Subsection III.A.1, supra.
To the extent Magwood wishes the court to
consider independently whether persons with mental
impairments such as his can be executed under the
Eighth Amendment, the court agrees with the State
that no separate Eighth Amendment claim was raised
in the petition for habeas corpus. Regardless of
whether the court may consider a claim not raised in
the petition, none of the Supreme Court cases cited in
Magwood’s brief, Roper v. Simmons, 543 U.S. 551
(2005); Atkins v. Virginia, 536 U.S. 304 (2002); Ford v.
Wainwright, 477 U.S. 399 (1986), holds that the
Eighth Amendment prohibits the execution of a person
who committed his offense while under the influence of
extreme mental or emotional disturbance or whose
capacity to appreciate the criminality of his conduct or
to conform his conduct to the requirements of the law
was substantially impaired. See R. Tab 1 at R-27
(finding that these mitigating circumstances existed).
The federal-habeas statute prohibits the court from
granting relief on any claim unless its adjudication in
state court “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.” 28 U.S.C. §
2254(d)(1). Under such a demanding standard of
review, and in the absence of a holding by the United
States Supreme Court that supports his claim,
Magwood cannot obtain habeas relief on grounds that
the Eighth Amendment prohibits the execution of a
person who committed his offense while suffering from
mental illness such as he was.
44a
4. Conclusion
In sum, Magwood’s claim that his death sentence
was freakish, arbitrary and disproportionate in
violation of due process and the Eighth Amendment is
rejected. First, the federal courts’ role in policing state-
court proportionality review is extremely limited, and
the state court did not deny proportionality review.
Second, the Alabama Supreme Court’s Ayzer decision
precludes this court from considering whether the use
of a non-statutory aggravating factor violated
Magwood’s constitutional rights because Ayzer is a
definitive interpretation of state law. Third, the state
appellate court has already determined that the
sentencing court did not rely on _ non-statutory
aggravating circumstances and that determination
was not unreasonable, nor is it likely that the
consideration of such factors would have rendered the
death sentence unconstitutional. Last, the United
States Supreme Court has not held that it is
unconstitutional to execute someone for a crime
committed while suffering from serious mental illness.
B. Retroactive Application of Ex Parte Kyzer
Next, Magwood claims that his death sentence
violates the fair-warning requirement of the due
process clause because it was based on an Alabama
Supreme Court decision, #x parte Ayzer, 399 So.2d
330 (Ala. 1981), that was decided after his offense and
retroactively applied to his case. The principle of “fair
warning” has “long been part of our tradition,” U/nited
States v. Bass, 404 U.S. 336, 34 (1971), and is
recognized as “fundamental to our concept. of
45a
constitutional liberty,” Marks v. United States, 430
U.S. 188, 191 (1977). As early as 1931, Justice Holmes
wrote: “Although it is not likely that a criminal will
carefully consider the text of the law before he
murders or steals, it is reasonable that a fair warning
should be given to the world in language that the
common world will understand, of what the law
intends to do if a certain line is passed.” McBoyle v.
United States, 283 U.S. 25, 27 (1931).
That principle has been cited and applied dozens of
times by the United States Supreme Court. See, e.g.,
Arthur Andersen LLP v. United States, 544 U.S. 696,
703 (2005); Rogers v. Tennessee, 532 U.S. 451 (2001);
United States v. Lanier, 520 U.S. 259, 265-66 (1997);
United States v. Aguilar, 515 U.S. 593, 600 (1995);
Marks, 430 U.S. at 191-92; Douglas v. Buder, 412 U.S.
430, 432 (1973) (per curiam); Rabe v. Washington, 405
U.S. 313, 316 (1972) (per curiam); Bass, 404 U.S. at
348; Boure v. City of Columbia, 378 U.S. 347 (1964);
United States v. Harriss, 347 U.S. 612, 617 (1954).
According to the latest definitive statement of the fair-
warning rule, due process prohibits the retroactive
application of judicial interpretations of criminal
statutes that are “unexpected and indefensible by
reference to the law which has been expressed prior to
the conduct in issue.” Rogers, 532 U.S. at 461 (quoting
Boure, 378 U.S. at 354).
In this case, as the court will explain in more
detail below, the fair-warning principle compels the
court to grant Magwood habeas relief as to his death
sentence. At the time Magwood committed his offense,
given the findings of the sentencing court, state law
did not allow for him to be sentenced to death. When
46a
he was- sentenced, however, the trial court
retroactively applied a change in the law, made
subsequent to Magwood’s offense but before his trial,
that permitted a death sentence in cases such as his.
Such a sentence runs afoul of fairness, due process,
and clearly established Supreme Court precedent.
1. Relevant Supreme Court Precedent:
Boure and Rogers
Magwood claims that he was denied due process
when the sentencing court sentenced him to death
without finding the existence of an aggravating
circumstance under former 1975 Ala. Code § 13-11-6,
thereby sentencing him to a punishment he could not
have received under the law that existed at the time of
his offense. The basic factual premises of Magwood’s
claim are correct. His offense conduct, the murder of
Sheriff Grantham, occurred on March 1, 1979, more
than two years before the Alabama Supreme Court
decided Ex parte Kyzer. And the trial court whose
sentence is challenged in the habeas petition now
before the court “d[id] not find the existence of any...
aggravating circumstance in section 13-11-6. .. .” R.
Tab 1 at R-25. Consequently, the question before the
court is whether the trial court’s sentence of death on
that basis is properly understood as a retroactive
application of a subsequent judicial decision that
denies Magwood due process of law.
As the parties have noted in their briefs, the
relevant United States Supreme Court decisions are
Bouie v. City of Columbia, 378 U.S. 347 (1964), and
Rogers v. Tennessee, 532 U.S. 451 (2001). In Bouie,
the Court held that the South Carolina Supreme Court
47a
had violated due process in affirming the convictions of
civil-rights “sit-in” protesters for violating that state’s
criminal-trespass statute. In a decision issued after
the defendants’ conduct but before affirming the
convictions, the state supreme court had construed the
statute, which on its face prohibited entry on another
person’s land after notice prohibiting such entry, to
prohibit remaining on land after receiving notice to
leave. 532 U.S. at 349-50 & n.2. On review, the United
States Supreme Court noted “the basic principle that a
criminal statute must give fair warning of the conduct
that it makes a crime,” sd. at 350, and stated that “a
deprivation of the right of fair warning can result .. .
from an _ unforeseeable and_ retroactive judicial
expansion of narrow and precise statutory language,”
id. at 352. “If a judicial construction of a criminal
statute is unexpected and indefensible by reference to
the law which had been expressed prior to the conduct
in issue, it must not be given retroactive effect.” Jd. at
354 (internal quotation marks omitted).
Applying those principles, the Court found that
neither the plain language of the statute nor prior
South Carolina decisions interpreting it supported the
application of the criminal trespass law to persons who
remained on land after they were asked to leave. The
Court therefore held that the challenged convictions
contravened due process of law.
In Rogers, the question was whether the
Tennessee Supreme Court’s abolition of that State’s
common-law “year-and-a-cey rule” could _ be
retroactively applied to affirm the murder conviction
for a homicidal act that occurred more than a year and
a day before the death of the victim. On review of the
48a
conviction, the United States Supreme Court
disavowed dicta from Bouse suggesting that the fair-
warning principle of the due process clause, as it
applies to judicial decisions, is coextensive with the ex
post facto clause as applied to legislative acts.
Although the “limitations on ex post facto judicial
decisionmaking are inherent in the notion of due
process,” id. at 456, the “decision in Bouse was rooted
firmly in well established notions of due process,” and
did not “incorporate jot-for-jot the specific categories”
of retroactive legislative acts barred by the ex post
facto clause, id. at 459. Instead, the “more basic and
general principle of fair warning that Bouse so clearly
articulated” should be applied to challenges to
retroactive judicial decisionmaking. /d. Extending the
strict rules of the ex post facto clause to all instances
of judicial decisionmaking would “evince too little
regard for the important institutional and contextual
differences between legislative, on the one hand, and
common law decisionmaking, on the other.” /d. at 460.
Applying these principles to the _ retroactive
abolition of the year-and-a-day rule in Tennessee, the
Court held that the abolition of the rule, which was
“widely viewed as an outdated relic of the common
law,” id. at 462, did not violate the fair-warning
principle of the due process clause. The Court noted
that the year-and-a-day rule was nowhere to be found
in the statutory criminal code of Tennessee, and it had
“only the most tenuous foothold” as part of the
criminal law, including precedential case law, of that
State. Jd. at 464. In sum, the Tennessee court's
retroactive abolition of the rule was not “unexpected
and indefensible such that it offended the due process
principle of fair warning articulated in Boure and its
49a
progeny.” Jd. at 466 (internal quotation marks
omitted). The challenged conviction was therefore
affirmed.
To summarize, fogers, while not overturning
Bouie, limited it to a considerable extent. Rogers made
clear that the due process clause does not incorporate
against judicial decisionmaking al] the limitations that
the ex post facto clause places on legislatures. Rogers,
532 U.S. at 458-59. The due process clause is not
implicated by the retroactive application of every
judicially-created change in the law that happens to be
detrimental to a defendant. /d. at 460. Instead, due
process is violated by such retroactive application only
when the new judicial interpretation of a criminal
statute is “unexpected and indefensible by reference to
the law which had been expressed prior to the conduct
in issue.” Jd. at 462 (quoting Bouse, 378 U.S. at 354).
Thus, if a judicial decision is a “routine exercise of
common law decisionmaking in which the court
brought the law into conformity with reason and
common sense” rather than “a marked and
unpredictable departure from prior precedent,” sd. at
467, then its retroactive application to offense conduct
that occurred before the decision was made would not
contravene the fair-warning principle of the due
process clause.
2. Bouiels Controlling
Faced with these two United States Supreme
Court decisions, this court must now decide whether
the retroactive application of £x parte Kyzer is barred
by Bouse or permitted under Aogers. This court
concludes that, even taking into account the language
50a
of Rogers that limits the scope of Boure, Boure governs
the outcome in this case. In other words, the court
concludes that the retroactive application of Hx parte
Kyzer violated due process because it was “unexpected
and indefensible by reference to the law which had
been expressed prior to the conduct in issue.” Bouse,
378 U.S. at 354 (internal quotation marks omitted),
quoted in Rogers, 532 U.S. at 461.
The principal difference between Boure and Rogers
is that Boure concerned a “retroactive judicial
expansion of narrow and precise statutory language,”
Bouie, 378 U.S. at 353 (emphasis added), whereas the
retroactive judicial decision challenged in Afogers
“involveld)] not the interpretation of a statute but an
act of common Jaw judging,” Rogers, 532 U.S. at 461
(emphasis added). In this case, Magwood challenges
the Alabama Supreme Court’s expansive
interpretation of a criminal statute, not any changes it
made to a common-law rule.
The FAogers court, in assessing whether the
abolitsan of the year-and-a-day rule was “unexpected
and indefensible by referemee of the law which had
been expressed prior to the conduct in issue,” based its
decision on three considerations, none of which applies
to Ayzer. First, “|t|he year and a day rule [was| widely
viewed as an outdated relic of the common law.” rd. at
462, whereas the Alabama death-penalty statute
construed by the Alabama Supreme Court in Ayzer
was ony a few years old. Second, “the year and a day
rule hajd| been legislatively or judicially abolished in
the vast majority of jurisdictions recently to have
addressed the issue,” id. at 463, whereas this court 1s
unaware of other States’ courts that, prior to
5la
Magwood’s offense conduct, had interpreted state
statutes’ aggravating-circumstances requirements to
be non-binding on the sentencing judge. Third, “at the
time of [Rogers’s] crime the year and a day rule had
only the most tenuous foothold as part of the criminal
law of the State of Tennessee” and “did not exist as
part of Tennessee’s statutory criminal code,” sd. at 464,
whereas at the time of Magwood’s crime the
aggravating-circumstances requirement was” an
express part of Alabama’s statute and the court knows
of no prior judicial decisions in Alabama that gave the
aggravating-circumstances requirement “only the mest
tenuous foothold” as part of the law of that State.
In fact, numerous pre-Ayzer decisions by the
Alabama Court of Criminal Appeals strengly imply or
suggest that a defendant convicted of a capital offense
could not, before Ayzer, be sentemced to death unless
the trial court found the existemce of at beast ene
aggravating circumstance as enumerated in former
1975 Ala.Code § 13-11-6. For example, state courts
held that the trial court could met base a sentence of
death of an aggravatimg circumstance from § 13-11-6
that does httle more tham describe the aggravated
capital offense from § 13-11-2. Colley v. State, 405
So.2d 374 (Ala. Cr. App. 1980); Ael/er v. State, 380
So.2d 926 (Ala. Cr. App. 1979). State courts also held
that § 13-11-6 lists the on/y aggravating circumstances
that could be considered by the sentencing judge.
Berard v. State, 402 So.2d 1044 (Ala. Cr. App. 1980);
Tomlin v. State, 443 So.2d 47 (Ala. Cr. App. 1979).
These decisions, combined with a plain reading of the
text of § 13-11-4, belie any notion that the
aggravating-circumstances requirement had “only the
52a
most tenuous foothold” as the law in Alabama prior to
Kyzer.*
In contrast to the AHogers case, the circumstances
of Boure mirror those of this case in most salient
respects. First, Bouse and this case both involve the
judicial interpretation of statutory language, not the
evolution of judge-made common law. Second, in both
cascs, the statutory language was precise as written,
and did not appear, prior to the challenged state-court
decision, to welcome the interpretation given by the
judiciary. In Boure, “(bly its terms, the statute
prohibited only ‘entry upon the lands of another .. .
after notice from the owner .. . prohibiting such entry.
_. .” Id. at 356. Similarly, former 1975 Ala. Code § 13.
11-4, by its own terms, required that “[ilf the court
imposes a sentence of death, it shall set forth in
writing, as the basis for the sentence of death, findings
of fact from the trial and the sentence hearing, which
shall at least include ... |olne or more of the
aggravating circumstances enumerated in sectron 13-
11-6, which it finds exists in the case and which it
finds sufficient te support the sentence of death.”
Third, in both cases, subsequent acts of the state
legislatures were revealing as to the meaning of the
law prior to the judicial decision at issue: in Beuze, the
Tennessee legislature enacted a statute criminalizing
the defendants’ conduct shortly after the sit-in
* Admittedly, Ae//er is the only one of these decisions that was
issued prior to Magwood’s offense conduct. However, the other
three decisions did litthe more than confirm what Ae//er clearly
implied and the text of the statute itself clearly stated: the
aggravated offense from § 13-11-2 could not itself constitute the
sole aggravating circumstanee justifying a sentence of death
53a
occurred; conversely, in this case, the Alabama
legislature overturned Ayzer in its 1981 death-penalty
statute by creating a separate subsection that
expressly states, “Unless at least one aggravating
circumstance as defined in section 13A-5-49 exists, the
sentence shall be life without parole.” 1975 Ala. Code §
13A-4-45(f).°
Fourth, in neither case did the retroactively
applied judicial interpretation have support in state-
court decisions prior to the offense conduct. In Boure,
the United States Supreme Court reviewed 95 years of
state-court interpretation of the criminal-trespass
statute and found no authority for the interpretation
given by the South Carolina Supreme Court in the
challenged case. 378 U.S. at 361. Although Alabama’s
1975 death-penalty statute was not nearly as old as
the Seuth Carolina criminal-trespass statute, this
court is aware ef no published decision of an Alabama
state court, prior to Magwood’s offense, that permitted
a death sentence where no aggravated circumstance as
enumerated in § 13-11-6 had been found. As discussed,
numerous pre-Ayzer decisions of the Alabama Court of
Crimina! Appeals strongly imply that the sentencing
cowrt must fimd the existence of at least one
aggravating circumstance as enumerated m § 13-11-6
in order to semtence the defendant to death. Col/ey v.
* Im addition to the subsequent legisiative enactment, a
subsequent state-court decision implicitly recognized that A yzer
changed the law. Ex parte Woodard, 631 So.2d 1065, 1071 (Ala.
Cr. App. 1993), cites Ayzer for the proposition that “umder former
capital offense statutes, death sentence could net be upheld where
defendant was convicted of the intentional murder of three
persons in one course of conduct, but no statutory aggravating
circumstances existed.”
54a
State, 405 So.2d 374 (Ala. Cr. App.1 980); Berard v.
State, 402 So.2d 1044 (Ala. Cr. App. 1980); Tomlin v.
State, 443 So.2d 47 (Ala. Cr. App. 1979) ; Keller v.
State, 380 So.2d 926 (Ala. Cr. App. 1979). And just as
in Bouse, where the South Carolina court had cited two
previous cases but the United States Supreme Court
found those cases to be “simply irrelevant,” sd. at 357-
58, in this case Ayzer cited two previous Alabama
cases, Evans v. State, 361 So.2d 666 (Ala. 1978) and
Clements v. State, 370 So.2d 723 (Ala. 1979), which
this court has reviewed and can safely say are
irrelevant as well, at least insofar as they do not
address the question of whether a ceferndant can be
sentenced to death absent the finding of an
aggravating circumstance as enumerated in § 13-11-6.
if anything, Clements suggests that the Kyzer
decisiom was entirely unforeseeable. Clements, which
was decided shortly before Magwood’s offense conduct,
recognizes several “long-settled rules of construction,”
370 So.2d at 725, prohibiting the expansive judicial
interpretation of criminal statutes:
“A basic rule of review in criminal cases is that
criminal! statutes are to be strictly construed
in faver of these persons sought to be
subjected to their operation, i.e., defendants.”
“Penal statutes are te reach no further in
meaning than ther words.”
“One whe cammits an act which does not come
within the words of a criminal statute,
according to the general amd popular
understanding of those words, when they are
55a
not used technically, is not to be punished
thereunder, merely because the act may
contravene the policy of the statute.”
“No person is to be made subject to penal
statutes by implication and all doubts
concerning their’ interpretation are _ to
predominate in favor of the accused.”
/d. (citations omitted). Applying these rules to former
1975 Ala. Code § 13-11-4 (“If the court imposes a
sentence of death, it shall set forth in writing .. .
findings of fact... which... include... [o]ne or more
of the aggravating circumstances enumerated in
section 13-11-6.”), it seems beyond dispute that the
judicial construction of that statute announced in
Ayzer was “unexpected and indefensible by reference
to the law which had been expressed prior to”
Magwood’s offense conduct. Boure, 378 U.S. at 354
(internal quotation marks omitted), quoted in Rogers,
532 U.S. at 461.
3. Distinctions Between this Case and Bouse Are
Immaterial
Admittedly, there is one aspect of this case that
makes it look more like Rogers than Bouie: Magwood,
like Rogers, undoubtedly committed a serious violent
offense the criminality of which is not in question.® In
Rogers, the retroactivity of the challenged state-court
decision meant the difference between a conviction for
° The State never expressly makes this argument but, in a
footnote, reminds the court, “At no time was Mapwood’s conduct
innocent in the instant case.” Resp. Br. At 25 n.6.
56a
murder and a conviction for some form of aggravated
assault, and in this case the retroactivity of Ayzer
means the difference between a sentence of death and
a sentence of life without parole. In Bouse, by contrast,
the defendants’ conduct was innocent of any crime—
and in fact, by most standards, heroic.
However, although there is some dicta in Bouzie to
suggest that the defendants’ due-process claim was
“particularly compelling where, as_ here, [their]
conduct cannot be deemed improper or immoral,” 378
U.S. at 362, there is no language in Boure that limits
its holding to conduct that is ma/um prohrbitum as
opposed to ma/um en se. As for Rogers, although the
Court’s opinion in that case does refer to Boule as a
case about “the constitutionality of attaching criminal
penalties to what previously had been /snnocent
conduct,” 532 U.S. at 459 (emphasis added), the Court
never implies that its basis for distinguishing Boure
had anything to do with the moral content of Rogers’s
conduct or the fact that his conduct was, if not murder,
a serious crime.
In fact, the significance of such a distinction was
more or less rejected by Justice Holmes in McBoyle v.
United States, 283 U.S. 25 (1931): “Although it is not
likely that a criminal will carefully consider the text of
the law before he murders or stea/s, it is reasonable
that a fair warning should be given to the world in
language that the common world will understand, of
what the law intends to do if a certain line is passed.”
283 U.S. at 27 (emphases added). Accordingly, even
though Magwood was guilty of a capital offense, as
defined in former 1975 Ala. Code § 13-11-2, at the time
he killed Sheriff Grantham, he had no fair warning
57a
that his conduct, which was committed absent any
aggravating circumstances as enumerated in former
1975 Ala. Code § 13-11-6, could subject him to a death
sentence. He was entitled to fair warning of “what the
law intend[ed] to do,” McBoyle, 283 U.S. at 27—that is,
execute him—if he killed Sheriff Grantham absent any
aggravating circumstances as enumerated in former
1975 Ala. Code § 13-11-6.
The “innocent conduct” distinction should also be
rejected in a case such as this one where the defendant
is “innocent of the death penalty.” Sawyer v. Whitley,
505 U.S. 333, 335 (1992). The United States Supreme
Court, while acknowledging that “|t]he phrase
‘innocent of death’ is not a natural usage of those
words,” 7d. at 341, has stated that “[s]ensible meaning
is given to the term ‘innocent of the death penalty’ by
allowing a showing .. . that there was no aggravating
circumstance or that some other condition of eligibility
had not been met,” sd. at 345 (emphasis added). Here,
Magwood was not eligible for the death penalty under
Alabama state law, given the sentencing court’s
findings, at the time he committed his offense because
the sentencing judge found no _ aggravating
circumstances under former 1975 Ala. Code § 13-11-6.
Therefore, he is “actually innocent” of the death
penalty, and the fact that he is otherwise guilty of
capital murder is of no consequence under Boure and
Rogers.’
Magwood’s innocence of the death penalty would also excuse,
under the miscarriage-of-justice exception, any procedural default
that would otherwise bar his claim. Sawyer, 505 U.S. at 335; 2
Hertz & Liebman, Federa/ Habeas Corpus Practice & Procedure §
26.4, at 1369-71 (5th ed. 2005). Because the court has already
adopted the magistrate judge’s recommendation on other grounds
58a
A similar distinction between this case and Boure,
and indeed between this case and Rogers, is that Boure
and Rogers involved challenges to the defendants’
convictions, whereas this case involves a challenge to
Magwood’s sentence. It is unsurprising that the State
does not argue that the fair-warning principle of the
due process clause does not apply to sentencing, as
there is nothing about Bouse or subsequent case law,
and certainly nothing about the due-process principles
animating Bourve, that would restrict the fair-warning
rule in such a way.
Indeed, to so limit the due process principles
animating RBouze would contradict the United States
Supreme Court’s Apprendrrelated jurisprudence,
whose reasoning points to the conclusion that
retroactively applied aggravating factors in a death-
penalty case are the functional equivalent of
retroactively applied elements in a criminal offense. In
Apprendi v. New Jersey, 530 U.S. 466 (2000), the
Court held that under the Sixth Amendment any fact
that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a
jury and proved beyond a reasonable doubt. 530 U.S.
at 490. Of importance here, the Apprendi Court
emphasized that it is of no relevance whether state
law labels a particular fact an “element” of the offense
or merely a “sentencing factor.” Jd. at 494. If the
that this claim is not procedurally defaulted, Order of Jan.27,
2004 (doc. no. 69), at 2, and because the Supreme Court has
instructed that the actual-innocence exception should not be
invoked unless all other avenues of relief are unavailable, Dretke
v. Haley, 541 U.S. 386, 393-94 (2004), the court need not invoke
the miscarriage-of-justice exception to the procedural default rule
in this case.
59a
required finding exposes the defendant to an increase
in punishment beyond what would be the maximum
authorized statutory sentence absent the finding, then
it is the “functional equivalent of an element of a
greater offense than the one covered bv the jury’s
guilty verdict.” Jd. n.19. The principles of Apprendi
were applied to death sentences in Ring v. Arizona,
536 U.S. 584 (2002), which stated that “enumerated
aggravating factors operate as ‘the functional
equivalent of an element of a greater offense,’ ” 536
U.S. at 609 (quoting Apprendi, 530 U.S. at 494 n.19,
meaning that any fact, such as an aggravating factor,
on which the state law conditions the imposition of the
death penalty must be found by a jury beyond a
reasonable doubt. Aing, 536 U.S. at 589.
“There is no principled reason to distinguish, in
this context, between what constitutes an offense for
purposes of the Sixth Amendment’s jury-trial
guarantee and what constitutes” an offense for
purposes of the fair-warning principle of the due
process clause. Sattazahn v. Pennsylvania, 537 U.S.
101, 111 (2003) (applying the Apprendi Ring
principles to a double-jeopardy claim). That is, the
significance of Apprendi and Ring for Bouse claims in
death-penalty cases is not that juries, rather than
judges, must find the “aggravating” facts that elevate
the sentence for a capital offense from life without
parole to death. Rather, Apprendi and Ring illustrate
that enumerated aggravating circumstances, such as
those in former 1975 Ala. Code § 13-11-6, operate as
the “functional equivalent” of elements of an offense,
which means that a death sentence based on the
finding of aggravating circumstances that would not
have authorized a death sentence at the time the
60a
offense conduct occurred is the “functional equivalent”
of a conviction based on the finding of elements that
would not have constituted a crime at the time the
offense conduct occurred—precisely the type of
conviction that violates the fair-warning principle of
the due process clause under Bourse. Consequently,
where, as here, the defendant challenges’ the
retroactive application of a judicial decision that
makes him eligible for a death sentence where he
would not have been statutorily eligible before, the
fair-warning principle unquestionably applies.*®
In sum, this case is not distinguishable from Bouse
in any way that is material to Magwood’s claim. The
fair-warning principle applies here even though
Magwood’s conduct was not innocent and even though
he challenges his death sentence rather than his
conviction on the underlying capital offense.
4. Additional Arguments Are Unavailing
Briefly, the court will now address and reject five
additional arguments, only three of which were raised
5 The court notes that the Eleventh Circuit has “assume|ld]
arguendo, without deciding,” that the fair-warning principle
applies to sentencing. United States v. Duncan, 400 F.3d 1297,
1307 n.12 (11th Cir. 2005). Duncan, however, involved a
challenge to the retroactive application of the changes made to
the United States Sentencing Guidelines by United States v.
Booker, 543 U.S. 220 (2005), not aggravating factors in a capital
sentencing statute. See Webster v. Woodford, 369 F.3d 1062, 1069
(9th Cir. 2004) (holding that Bouie applies to “judicial
constructions of substantive elements of criminal law such as
aggravating circumstances” in a capital case even though it “does
not apply to sentencing schemes”).
6la
by the State, against granting Magwood relief on this
claim.
a.
First, although neither party cites Jackson v.
Thigpen, 752 F. Supp. 1551 (N.D. Ala. 1990) (Clemon,
J.), affd in relevant part & revd on other grounds sub
nom. Jackson v. Herring, 42 F.3d 1350 (11th Cir.
1995), this court thinks it important to distinguish the
holding in that case from Magwood’s claim here. In
Jackson, the district court rejected the habeas
petitioner’s claim that the retroactive application of
&Ayzer violated her right to fair warning under the due
process clause. Jackson challenged the state court’s
“dual use” of the same fact (her prior conviction for
second-degree murder) to support her conviction of an
aggravated offense, former 1975 Ala. Code § 13-11-
2(aX13) (“Any murder committed by a defendant who
has been convicted of murder in the first or second
degree in the 20 years preceding the crime.”), and to
support the finding of an aggravated circumstance, /d.
§ 13-11-6(2) (“The defendant was previously convicted
of another capital felony or a felony involving the use
or threat of violence to the person.”). In Jackson,
however, the aggravating circumstance found by the
court was actually enumerated in § 13-11-6; it was not
the aggravated offense enumerated in § 13-11-2 being
used as an aggravating circumstance for sentencing
purposes. The district court also noted that prior to
Ayzer, the Alabama Supreme Court had allowed death
sentences to stand where a single act supported both
an element of the offense and an aggravating factor.
Jackson, 752 F. Supp. at 1558. Based on these facts,
the district court held that Ayzer “did not make any
substantive change in Alabama law regarding the dual
62a
use of a single prior criminal act and that result
should have been anticipated.” Jd.’
The same cannot be said regarding Ayzer's effect
on the dual use of a aggravated offense that is not
enumerated as an aggravating circumstance in § 13-
11-6. With regard to Jackson’s claim, not only had the
Alabama Supreme Court approved of numerous death
sentences based on dual use of a single prior criminal
act, but, in addition, the plain text of the statute
permitted such dual use. The Alabama Court of
Criminal Appeals’ decisions setting aside death
sentences based on such dual use had never been
settled law, and, by permitting dual use in Ayzer, the
Alabama Supreme Court more or less confirmed that
the statute meant what it said. In contrast, Ayzer’s
other holding upended the literal meaning of the
statute with respect to enumerated aggravating
circumstances. Not only had prior court decisions
implied that the court must find the existence of an
aggravating circumstance enumerated in § 13-11-6, no
court had ever approved a death sentence based on an
aggravating circumstance that was found in § 13-11-2
but not in § 13-11-6.
In other words, Ayzer really involved two
interpretations of the capital-sentencing procedures
under the 1975 statute. First, it confirmed what was
unsettled before: the sentencing court could consider
* To the extent the Jackson court based its decision on the facts
that the petitioner's offense conduct occurred after Beck and that
language in Beck predicted language in Jackson, 752 F. Supp. at
1558, it may have overiooked the fact that relevant language in
Beck was modified and released simultaneously with Ayzer. See
supra note 2.
63a
an aggravating circumstance from § 13-11-6 even if
that aggravating circumstance was substantially the
same, or was based on the same facts, as the
aggravated offense from § 13-11-2 averred in the
indictment. This first interpretation, which we might
call the “dual-use” holding of Ayzer, was the issue the
court faced in Jackson v. Thigpen, and the district
court in that case rejected Jackson’s claim that she did
not have fair warning of Ayzer’s dual-use holding.
Second, Ayzer interpreted the statute to permit the
sentencing court to consider an aggravating
circumstance that did not even appear in § 13-11-6, so
long as that aggravating circumstance was the
aggravated offense from § 13-11-2 that was averred in
the indictment. This second interpretation of the
statute, as opposed to the dual-use holding, was a
judicial expansion of the plain text of the statute and
had no support in prior case law. The court is
confident that by holding today that Magwood was
denied fair warning in being sentenced to death absent
the existence of any aggravating circumstance
enumerated in § 13-11-6, it in no way undermines the
district court’s holding in Jackson v. Thigpen that the
petitioner in that case had not been denied fair
warning in being sentenced to death under the dual-
use doctrine.
b.
Second, although the State does not raise a
preclusion defense, the court thinks it important to
point out the fact that this is not Magwood’s first
federal-habeas petition and consider whether his claim
is barred under AEDPA’s “successive petition” rule.
Magwood’s first habeas petition was before the federal
64a
district court over 20 years ago, and this court denied
the petition as to Magwood’s conviction and granted
the petition as to his death sentence. Magwood v.
Smith, 608 F. Supp. 218 (M.D. Ala. 1985) (Hobbs,
C.J.). At resentencing, Magwood again received a
death sentence, and his habeas petition challenging
the resentencing is now before this court.
From a review of this court’s 1985 decision, it
appears that Magwood did not raise, in his first
habeas case, the fair-warning claim, even though he
could have done so. At Magwood’s first sentencing, the
state court committed the same constitutional error
identified here: it retroactively applied Ayzer to
Magwood’s case and sentenced him to death without
finding the existence of any aggravating circumstance
in former 1975 Ala. Code § 13-11-6. However, this
court never addressed any fair-warning claim in its
1985 opinion, even though JBouve’s fair-warning
principle represented clear Supreme Court precedent
at the time.
This raises the question of whether Magwood was
precluded from raising the issue when challenging his
resentencing. In habeas proceedings, federal courts are
required to follow the statutory rules on “successive
petitions” rather than the judge-made law on res
judicata. AEDPA bars claims “presented in a second or
successive habeas corpus application,” except in very
limited circumstances. 28 U.S.C. § 2244(b)(2). Because
the answer to precisely what constitutes a second or
successive petition is not clarified in AEDPA, courts
must often interpret the statute to see if a specific
claim is second or successive.
65a
Here, the court concludes that Magwood’s fair-
warning claim is not a successive petition within the
meaning of AEDPA. As this court discussed in a
previous opinion in this case, Magwood v. Jones, 472
F. Supp. 2d 1333 (M.D. Ala. 2007) (Thompson, J.), the
Eleventh Circuit has concluded that, under AEDPA,
habeas petitions challenging the constituticnality of a
resentencing proceeding are not successive to petitions
that challenge the underlying conviction and original
sentence. Jn re Green, 215 F.3d 1195 (11th Cir. 2000)
{per curiam); see a/so 2 Hertz & Liebman, Federa/
Habeas Corpus Practice & Procedure § 28.3b(i), at
1412 (5th ed. 2005) (“When a petitioner files a second
or subsequent petition to challenge a _ criminal
judgment other than the one attacked in an earlier
petition, it cannot be said that the two petitions are
‘successive.”). In this court’s earlier opinion, it
addressed the issue of whether Magwood’s Brady
claim as it related to his resentencing was successive
to his Brady claim as it related to his underlying
conviction. “Although the State suppressed the same
evidence at his trial, the suppression at resentencing
was an independent constitutional error’ that
originated at the resentencing proceedings.” Magwood,
472 F. Supp. 2d at 1338-39. Here, this court is
presented with an analogous issue: Although the state
court committed the same fair-warning error at
Magwood’s original sentencing, the fair-warning error
at resentencing was an independent constitutional
error—and the habeas petition on _ resentencing
challenges a separate judgment. Therefore, the court
concludes that Magwood’s fair-warning claim is not
successive within the meaning of AEDPA.
66a
Having concluded that the claim is not barred as
successive under AEDPA, the court need not consider
whether some form of common-law res judicata might
apply, see Allen v. McCurry, 449 U.S. 90, 94 (1980)
(defining claim preclusion), because the State did not
raise a claim-preclusion defense. See Arizona Vv.
California, 530 U.S. 392, 410 (2000) (“[Where] the
technical rules of preclusion are not strictly applicable,
the principles upon which these rules are founded
should inform our decision. Those principles rank res
Judicata an affirmative defense ordinarily lost if not
timely raised.”(internal quotation marks, brackets,
and citation omitted)); Loursville & N.R. Co. v. M/V
Bayou Lacombe, 597 F.2d 469, 471 n.1 (5th Cir. 1979)
(res judicata is an affirmative defense and as such is
waivable).'°
Furthermore, unlike in this court’s consideration
of the Brady issues in its previous opinion, Magwood,
472 F. Supp. 2d at 1338-43, here the law-of-the-case
doctrine does not apply because this court did not
decide the fair-warning claim in 1985. See Arizona v.
California, 460 U.S. 605, 618 (1983) (“[T]he doctrine [of
law of the case] posits that when a court decides upon
a rule of law, that decision should continue to govern
the same issues in subsequent stages in the same
case."(emphasis added)). Accordingly, even though
Magwood arguably could have, but did not, raise the
fair-warning claim in his habeas petition challenging
'° In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en
banc), the Eleventh Circuit Court of Appeals adopted as binding
precedent all of the decisions of the former Fifth Circuit handed
down prior to the close of business on September 30, 1981.
67a
his first conviction and sentencing, he is not precluded
from raising it here.
Cc.
Third, the State argues that Magwood was given
“fair warning” that he could be sentenced to death
because his trial, sentencing, and resentencing all
occurred subsequent to March 6, 1981, when the
Alabama Supreme Court issued its decision in Ayzer.
Resp. Br. at 24-25. This argument is without merit.
Under the fair-warning principle of the due process
clause, the relevant question is not whether the
defendant will be surprised in the courtroom by the
retroactive application of a novel judicial construction
of a criminal statute, but whether such novel
construction was unforeseeable at the time of the
defendant’s unlawful conduct. See Bouse, 378 U.S. at
354 (“If a judicial construction of a criminal statute is
unexpected and indefensible by reference to the law
which had been expressed prior to the conduct in
issue, it must not be given retroactive effect.” (internal
quotation marks omitted and emphasis added)). In
fact, Boure itself involved the retroactive application of
a judicial decision, City of Charleston v. Mitchell, 239
S.C. 376, 123 S.E.2d 512 (1961), that had been issued
prior to the state supreme court’s decision affirming
their convictions; the critical point was that Mitchel/
was decided subsequent to the Bouse defendants’
conduct. See Bouse, 378 U.S. at 350 n.2.
In Magwood’s case, the offense conduct occurred on
March 1, 1979, and the Alabama Supreme Court
issued £\x parte Kyzer on March 6, 1981. Therefore, as
in Boure, at the time of the offense conduct, Magwood
68a
did not have fair notice that he could be sentenced to
death absent at least one aggravating circumstance
enumerated in former 1975 Ala. Code § 13-11-6.
d.
Fourth, the State continues to press its procedural-
default defense, arguing that Magwood did not raise
his fair-warning claim in state court. Resp. Br. at 21-
23. Although this court has already adopted the
magistrate judge’s recommendation that the claim is
not procedurally defaulted because the Alabama Court
of Criminal Appeals denied it on the merits (doc. no.
69, overruling State’s objection, doc. no. 61, to the
magistrate judge’s report and recommendation, doc.
no. 59), this court will now address an additional
reason why the State’s procedural-default defense as
to this claim is without merit.
Under the procedural-default rule, which is a
component of both the adequate-and-independent-
state-grounds and exhaustion doctrines, a habeas
petitioner is procedurally barred from pursuing a
claim either not raised in state court or correctly
rejected in state court on state-law procedural
grounds. Coleman v. Thompson, 501 U.S. 722, 729-32
(1991); Harmon v. Barton, 894 F.2d 1268, 1270 (11th
Cir. 1990). If a petitioner fairly presented his federal
claim throughout state-court collateral proceedings,
then the claim is exhausted and preserved for federal-
habeas review even if the state court chooses not to
address it. Kelley v. Sec'y for Dept of Corrections, 377
F.3d 1317, 1345 (11th Cir. 2004); 2 Hertz & Liebman,
supra, § 23.3b, at 1073.
69a
Here, the question is whether Magwood raised his
fair-warning claim in his Rule 20 state postconviction
petition. A review of Magwood’s Rule 20 petition and
appellate brief reveals that he did. In the Rule 20
petition, Magwood alleges that the “trial court, ... in
applying and following an interpretation which was
not rendered until after Petitioner’s conduct in 1979, . .
. violated Petitioner’s constitutional rights including
those secured by the Fifth, Eighth and Fourteenth
Amendments and the prohibitions against ex post
facto laws in the constitutions of the United States and
Alabama.” Seventh Amended Rule 20 Pet., R. Tab 21,
at 21-22. Then, in the Rule 20 appellate brief to the
Alabama Court of Criminal Appeals, Magwood again
preserves the claim: “(T]he absence of any statutory
aggravating circumstance and the lack of notice given
by the 1975 Act for the retroactive application of the
decision in Ayzer rendered Mr. Magwood’s sentence
unconstitutional under the 5th, 8th and 14th
Amendments.” Appellant Br., R. Tab 25, at 23.
By making these arguments in his _§ state
postconviction pleadings, Magwood exhausted his fair-
warning claim and preserved it for federal-habeas
review. The exhaustion requirement is “not so
draconian or formalistic as to require petitioners to
give a separate federal law heading to each of the
claims they raise in state court to ensure exhaustion
fur federal review. [It] simply requirels] that
petitioners present their claims to the state courts
such that the reasonable reader would understand
each claim’s particular legal basis and specific factual
foundation.” Kel/ey, 377 F.3d at 1344-45. By arguing
in state postconviction proceedings that the trial court
violated Magwood’s constitutional rights by
70a
retroactively applying Ayzer to his case, Magwood
fairly presented his fair-warning claim to the state
courts and thereby preserved it for federal-habeas
review.
e.
Last, the State argues that Ayzer was not
unexpected and indefensible by reference to prior state
law because the Alabama Supreme Court merely
applied “traditional rules of statutory construction” to
discover what the legislature intended. Resp. Br. at 30.
According to the State, the Ayzer court was merely
rectifying an “anomaly” in the statute, 399 So.2d at
334, an anomaly that caused a “literal and technical
reading of the statute” to be “completely illogical and
would mean the legislature did a completely useless
act,” sd. at 337. Because a literal reading would entail
such a bizarre result, the State essentially argues, the
AKyzer decision-like the abolition of the year-and-a-day
rule in Tennessee—“was a routine exercise of [judicial]
decisionmaking in which the court brought the law
into conformity with reason and common. sense.”
Rogers, 532 U.S. at 467. Although this court’s role is
not to second-guess the state court’s authoritative
opinion as to what the state legislature intended when
it enacted the 1975 capital statute, the court cannot
accept the State’s argument that Ayzer was little more
than the “appllication of] traditional rules of statutory
construction,” Resp. Br. at 30.
Two considerations animate this court’s conclusion
on this point. First, as previously discussed, the
traditional rules of statutory construction, as
recognized by the Alabama Supreme Court in
Jla
Clements v. State, require that criminal statutes be
strictly construed in defendants’ favor and reach no
further in meaning than their words. 370 So.2d at 725.
It therefore appears that the Ayzer decision
contravened the principles of statutory construction as
recognized by the Alabama Supreme Court,
notwithstanding the Ayzer court’s view that it was
merely interpreting legislative intent. Ayzer, 399
So.2d at 338.
Second, the court cannot help but disagree with
the Alabama Supreme Court’s dycta in Ayzer that the
literal reading of the statute “would be completely
illogical and would mean the legislature did a
completely useless act by creating a capital offense for
which the defendant could not ultimately receive the
death penalty.” Kyzer, 399 So.2d at 337. In fact, the
statute expressly provides for a sentence of Je
without parole for any defendant convicted of an
aggravated offense but for whom the aggravating
circumstances in § 13-11-6 do not outweigh the
mitigating circumstances. See former 1975 Ala. Code §
13-11-4. The court is aware of no other criminal
offense in the Alabama code at the time of Magwood’s
conduct, other than a capital offense enumerated in §
13-11-2, that could have resulted in a sentence of life
imprisonment without parole. If the legislature, in
enacting the 1975 statute, had wished to specify
certain offense conduct that was severe enough to
warrant life imprisonment without parole but not
severe enough to warrant a death sentence, then it
would not be “completely illogical” or a “completely
useless act” to allow for the possibility that a
defendant could be convicted of a capital offense under
§ 13-11-2 but, because of the lack of aggravating
72a
circumstances as enumerated in § 13-11-6, not be
sentenced to death.
Again, this court is in no position to reject the
Alabama Supreme Court’s authoritative opinion as to
the leg
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