Dallas v. Allen et al (DEATH PENALTY)

Filing 120

OPINION AND ORDER: For the above reasons, it is the ORDER, JUDGMENT, and DECREE of the court that petitioner Donald Dallas is not entitled to habeas relief on the above-discussed claims to which the respondents have not asserted a procedural-default defense. By later separate order, the court will address those claims to which the respondents have asserted a procedural-default defense. Signed by Honorable Judge Myron H. Thompson on 1/12/2012. (Attachments: # 1 Civil Appeals Checklist)(jg, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

DONALD DALLAS,

)
)
Petitioner,
)
)
v.
)
)
COMMISSIONER, ALABAMA
)
DEPARTMENT OF CORRECTIONS, )
et al.,
)
)
Respondents.
)

CIVIL ACTION NO.
2:02cv777-MHT
(WO)

OPINION AND ORDER
Petitioner Donald Dallas, an Alabama inmate under
sentence of death, filed a petition in this court for
writ of habeas corpus under 28 U.S.C. § 2254.

Initially,

this court ordered that this case should proceed in two
stages:

first,

dismissed

on

to

determine

which

procedural-default

claims

grounds

should
and

be

which

non-defaulted claims require an evidentiary hearing; and
second, to determine the merits of the non-defaulted
claims.

The magistrate judge oversaw the first stage.

Later

the

stages.

court
The

decided

court

now

that

it

would

decides

that,

oversee
because

both
the

procedural-default issue is more difficult than expected,
it is best to narrow this case substantially and resolve
now all the claims for which there is no proceduraldefault defense and for which the court believes an
evidentiary hearing is unnecessary.

As explained below,

the court concludes that Dallas is not entitled to habeas
relief on these claims.

I.
The Alabama Court of Criminal Appeals summarized the
facts of this case as follows:
“The record indicates that on July 12,
1994, Mrs. Hazel Liveoak left her home
in Millbrook to go grocery shopping in
Prattville.
As she was placing her
groceries into her car, ... appellant
[Dallas] and co-defendant Carolyn Yaw,
pushed Mrs. Liveoak into the car and
forced her to lie face down on the
floorboard.
He and Yaw got into the
car.
The appellant told Mrs. Liveoak
that he wanted her money.
When she
informed him that she only had $ 10.00
2

with her, he replied that that was not
enough and began to drive toward
Greenville.
Mrs. Liveoak told the
appellant that she had a credit card
that could be sued at an automatic
teller machine.
In Greenville, the
appellant drove to the end of the dirt
road, opened the trunk and forced Mrs.
Liveoak into it. With Mrs. Liveoak in
the trunk, the appellant and Yaw
travelled to Montgomery. The appellant
drove the car to the bank and parked in
an area of the parking lot far removed
from the bank building.
Yaw was
successful in using Mrs. Liveoak’s
credit card in 3 of 11 transactions to
obtain $ 300.00. The appellant remained
at the car, talking to Mrs. Liveoak
while Yaw withdrew the money.
Mrs.
Liveoak prayed for the appellant and his
family while she was in the trunk. The
appellant told Mrs. Liveoak that he and
Yaw would abandon the car and telephone
for help to ensure that she was released
from the trunk. Mrs. Liveoak was never
released from the trunk and she suffered
a heart attack and died.
“Evidence was presented tending to prove
that
Mrs.
Liveoak
did
not
die
immediately but rather lived for a
number of hours.
Evidence was also
presented that Mrs. Liveoak had a number
of bruises and cuts on her hands
consistent with trying to free herself
or calling for help.
The State
presented evidence that the appellant
and Yaw, after leaving Mrs. Liveoak,
3

went to a ‘crack house’ to purchase
cocaine with the stolen money.
They
then went to a motel and spent the night
smoking crack cocaine. The testimony of
Dennis Bowen, an acquaintance of the
appellant, indicated that the appellant
and Yaw were bragging at the crack house
that they had placed an elderly lady in
the trunk of a car and had left her
there.
When
Bowen
questioned
the
appellant about his statement, he
responded that he ‘hoped the old lady
would die.’ Evidence was also presented
showing that, three days before this
offense, the appellant had abducted and
robbed Wesley Portwood, an 80-year-old
man, in the parking lot of a K-Mart in
Prattville. As with Mrs. Liveoak, the
appellant made Portwood lie face down on
the floorboard of his car, then drove to
a remote area and ordered him out of the
car. The appellant told Portwood to lie
down in the weeds or he would place him
in the trunk of the car. Portwood told
the appellant that he did not want to
get into the trunk because he would
‘smother inside.’
The appellant then
robbed Portwood of $ 160.00. Portwood
survived the abduction.
“The appellant testified at trial. On
cross-examination, when asked why he
left Mrs. Liveoak in the trunk knowing
of her condition, he replied that ‘[h]e
didn’t want to get caught.’”

4

Dallas

v. State, 711 So. 2d 1101, 1103-1104 (Ala. Crim.

App. 1997).
An Alabama jury found Dallas guilty of the capital
offense of the murder of Liveoak during the course of a
kidnapping in the first degree, in violation of 1975 Ala.
Code § 13A-5-40(a)(1), and the capital offense of the
murder of Liveoak during the course of a robbery in the
first

degree,

in

violation

of

1975

Ala.

Code

§ 13A-5-40(a)(2). The jury recommended by a vote of 11 to
one that Dallas should receive a death sentence.

The

state trial court sentenced Dallas to death.
The

Alabama

Court

of

Criminal

Appeals

affirmed

Dallas’s convictions and death sentence. Dallas v. State,
711 So. 2d 1101 (Ala. Crim. App. 1997), and Alabama
Supreme Court then affirmed the lower appellate court. Ex
parte Dallas, 711 So. 2d 1114 (Ala. 1998).

The United

States Supreme Court denied Dallas’s petition for writ of
certiorari.

Dallas v. Alabama, 525 U.S. 860 (1998).

5

Acting pro se, Dallas filed a Rule 32 petition for
post-conviction relief in a state trial court.

The state

court appointed an attorney to represent him during his
Rule 32 proceeding.

The state court dismissed certain

claims and held an evidentiary hearing on others.

The

state court eventually denied Dallas’s Rule 32 petition in
full.

Dallas filed a motion with the state court to

alter, vacate, or amend its final order, but the state
court denied that motion as well.
Dallas appealed to the Alabama Court of Criminal
Appeals, but that court dismissed his appeal as “untimely
filed.”

Dallas filed a motion asking the state trial

court to find that his time for filing his notice of
appeal was tolled by his motion to alter, vacate, or
amend, and the state court granted the tolling motion.
Dallas appealed a second time to the Alabama Court of
Criminal Appeals, but the appellate court dismissed the
second appeal on the ground that the first appeal was
untimely.

Dallas filed a petition for writ of certiorari

6

in the Alabama Supreme Court, but that court dismissed
Dallas’s petition for failure to comply with Ala. R. App.
P.

39( c) (1).
Dallas then filed for habeas relief in this court.

Initially,

the

State

of

Alabama,

acting

through

respondents, filed a motion to dismiss Dallas's petition
on the ground that it was filed outside the one-year time
limit prescribed by 28 U.S.C. § 2244 (d).

This court

adopted the magistrate judge’s recommendation to deny the
dismissal motion, and this case was referred back to the
magistrate judge for further proceedings.
The State then filed its answer to the habeas-corpus
petition.

In its answer, the State of asserted that a

number of the claims raised by Dallas were precluded from
review in this court because the claims are barred by
procedural

default.

The

magistrate

judge

ordered

the

parties to file briefs on the issues of procedural default
and

whether

an

evidentiary

hearing

Following the filing of these briefs,

7

should

be

held.

the court required

the parties to file briefs on the merits of all claims for
which there is no agreement that the claim is procedurally
defaulted.
Thereafter, because the parties failed to file briefs
on the merits of all claims as instructed, the court
required supplemental briefs from the parties addressing
the merits of all claims not previously addressed.

The

State moved for reconsideration of this order, contending
that a large number of claims are procedurally defaulted,
and thus do not warrant briefing on the merits. The court
granted

the

State’s

motion

for

reconsideration

and

deferred merits briefing by the parties on certain claims
until further order.
The court therefore now turns its attention to those
claims for which the parties agree procedural default is
not a defense.

8

II.
There are 11 claims for which the State has not
asserted a procedural-default defense.

These claims are

properly before the court, for they were raised by Dallas
in the state court and rejected by those courts on the
merits.
However, before addressing the merits these claims,
this court will set out the standard governing federal
review of them.

The Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”) governs their review. Under
the AEDPA,
“(d) An application for writ of habeas
corpus on behalf of a person in custody
pursuant to the judgment of a State
court shall not be granted with respect
to any claim that was adjudicated on the
merits in State court proceedings unless
the adjudication of the claim-(1) resulted in a decision that was
contrary to, or involved an unreasonable
application of, clearly established
Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was
based on an unreasonable determination
9

of the facts in light of the evidence
presented in the State court proceeding.
“(e)(1) In a proceeding instituted by an
application for a writ of habeas corpus
by a person in custody pursuant to the
judgment
of
a
State
court,
a
determination of a factual issue made by
a State court shall be presumed to be
correct. The applicant shall have the
burden of rebutting the presumption of
correctness by clear and convincing
evidence.
28 U.S.C. § 2254.
Under the “contrary to” phrase, a federal habeas
court may grant the writ if the state court arrives at a
conclusion opposite to that reached by the United States
Supreme Court on a question of law or if the state court
decides a case differently from the way the United States
Supreme Court did on a set of materially indistinguishable
facts.

Williams v. Taylor, 529 U.S. 362, 404-405 (2000).

In other words, a state-court decision is contrary to
clearly established Supreme Court precedent if the state
court applies a rule that contradicts the governing law
set forth in United States Supreme Court precedent.

10

Id.;

see also McIntyre v. Williams, 216 F. 3d 1254 (11th Cir.
2000).

There is a distinction between an interpretation

which is contrary to Supreme Court precedent and “an
unreasonable application” of that precedent.
529 U.S. at 406.

Williams,

An unreasonable application is an

objectively unreasonable application of the federal law
set forth by the United States Supreme Court cases. Id. at
408-410; McIntyre, 216 F. 3d at 1257.
The

United

States

Supreme

Court

has

therefore

cautioned as follows: “If this standard is difficult to
meet, that is because it was meant to be. ... [Section]
2254(d) stops short of imposing a complete bar on federal
court relitigation of claims already rejected in state
proceedings. ... It preserves authority to issue the writ
in cases where there is no possibility fairminded jurists
could disagree that the state court's decision conflicts
with

this

Court's

precedents.

It

goes

no

farther.

Section 2254(d) reflects the view that habeas corpus is a
‘guard against extreme malfunctions in the state criminal

11

justice systems,’ not a substitute for ordinary error
correction through appeal.

As a condition for obtaining

habeas corpus from a federal court, a state prisoner must
show that the state court's ruling on the claim being
presented in federal court was so lacking in justification
that there was an error well understood and comprehended
in existing law beyond any possibility for fairminded
disagreement.”

Harrington v. Richter, ___ U.S. ____,

____, 131 S.Ct. 770, 786-787 (2011) (citations omitted).
Bearing in mind these standards and the caution about
their application, the court will address in turn each of
the claims at issue at this time.

A.
The court will consider ten of Dallas’s claims as a
group.

First and second, Dallas claims that the state

trial court erred in denying his objection to three of the
State’s proposed jury instructions.

12

In rejecting the

first claim, as to jury instruction three, the Alabama
Court of Criminal Appeals stated the following:
“The appellant cites
charge as improper as he
effectively shifted the
as to the element of
appellant:

the following
alleges that it
burden of proof
intent to the

‘You may infer that a person intends the
natural consequences of what he does if
the act is done intentionally.’
However, because the language of the
trial court’s instruction is permissive
rather than mandatory, it is not an
unconstitutional,
burden-shifting
instruction so as to violate Sandstrom
v. Montana, 442 U.S. 510, 99 S. Ct.
2450, 61 L.Ed.2d 39 (1979). See Freeman
v. State, 555 So. 2d 196, 208-09 (Ala.
Crim. App. 1988), affirmed, 555 So. 2d
215 (Ala. 1989), cert. denied, 497 U.S.
1046, 111 S. Ct. 8, 111 L.Ed.2d 823
(1990).
A review of the entire jury
charge given by the trial court in the
guilt phase indicates that the jury was
properly and thoroughly instructed as to
its role as factfinder as well as to the
law related to this case.”
Dallas, 711 So. 2d at 1109.

In rejecting the second

claim, as to jury instructions 20 and 21 regarding the

13

credibility and impeachment of the witnesses, the Alabama
Court of Criminal Appeals stated the following:
“The record indicates that, after some
alteration, the trial court gave the
following instructions, to which the
appellant takes issue:
‘Charge # 20:
‘In
this
case
the
defendant
has
testified, as he has a perfect right to
do. He has a perfect right to have his
testimony considered with the testimony
of each and every other witness who has
testified in this case. However, in
passing upon his testimony, you ladies
and gentlemen of the jury have a right
to consider the fact that he is the
defendant and as such has an interest in
the outcome of this case.
‘Charge # 21:
‘If you find from the evidence that any
witness has been impeached by a prior
inconsistent statement or by giving
contradictory testimony in court, you
may, in your discretion, consider that
in evaluating and weighing that witness’
testimony.’
“The trial
jury
that
prerogative
credibility
presented.

court properly charged the
it
had
the
exclusive
to determine the weight or
to be afforded the evidence
The jury charges in their
14

entirety, including the two charges
quoted above, made clear to the jury
that it could accept or reject any part
of the testimony given by any witness
and were correct statements of law. See
Slaton v. State, 680 So. 2d 879, 895
(Ala. Crim. App. 1995), affirmed, 680
So. 2d 909 (Ala. 1996).”
Dallas, 711 So. 2d at 1108.
Third, Dallas claims that the state trial court erred
in denying his requested jury charges on the lesser
included

offenses

of

reckless

murder

and

criminally

negligent homicide at the guilt phase of his trial.
rejecting

this

claim,

the

Alabama

Court

of

Appeals stated the following:
“The appellant argues that the reckless
murder instruction was warranted because
of his alleged voluntary intoxication at
the time of the offense. Additionally,
he argues that a criminally negligent
homicide
instruction
was
warranted
because ‘he inadvertently created the
risk of death by placing the victim in
the trunk and he should have been aware
of the risk but was not due to his
intoxication.’
“Although the trial court properly
charged the jury on the lesser included
offenses
of
felony
murder
and
15

In

Criminal

manslaughter, it correctly denied the
charge on reckless murder and criminally
negligent homicide because there was no
rational basis for a verdict finding the
appellant guilty of either offense. No
evidence supported a basis for an
instruction on reckless murder as
defined by § 13A-6-2(a)(2), Code of
Alabama 1975, because the appellant’s
actions were directed solely at the
victim and therefore did not ‘“manifest
[ ] extreme indifference to human
life.”’
Parker v. State, 587 So. 2d
1072, 1084 (Ala. Crim. App. 1991),
quoting Northington v. State, 413 So. 2d
1169 (Ala. Crim. App. 1981), cert.
quashed, 413 So. 2d 1172 (Ala. 1982).
Additionally, there was no evidence
presented at trial that the appellant
was under the influence of cocaine at
the time of the killing and thus
voluntarily intoxicated at the time of
the offense. The evidence presented by
the State indicated that the appellant
acted with the specific intent to kill.
He had been informed by the victim of
her heart condition and did not want to
‘get caught.’
Because the evidence
tended to show that the appellant acted
with the specific intent to kill, the
instruction on criminally negligent
homicide was also correctly refused.
Certainly, it cannot be said that the
appellant failed to perceive that death
might result if an elderly woman with a
heart condition was locked in the trunk
of a car and left in the middle of
summer in Alabama. Therefore, the trial
16

court was correct in
appellant’s charge.”

refusing

the

Dallas, 711 So. 2d at 1107-1108.
Fourth, Dallas claims that the state trial court
erred in denying his counsel’s request for a continuance.
In rejecting this claim, the Alabama Court of Criminal
Appeals stated the following:
“The appellant argues that he received
ineffective assistance of trial counsel
because, he says, the trial court
refused to grant his motion for a
continuance based on grounds that his
trial attorneys’ caseloads were so heavy
that they could not devote sufficient
time to the preparation of his trial.
‘Applying the principles of the capital
case of Ex parte Hays, 518 So. 2d 768
(Ala. 1986), we find it extremely
improbable that the additional time for
preparation requested by the defendant
would have changed the result of the
trial and that the defendant has not met
his burden of showing actual prejudice
in the defense of the charge for which
he was convicted. In Hays, our Supreme
Court wrote:
“‘Hays contends that the trial court’s
denial of his motion for continuance,
under the facts of this case, denied him
his constitutional right to effective
17

assistance of counsel under the Sixth
Amendment
of
the
United
States
Constitution.
The Court of Criminal
Appeals rejected this argument because
Hays failed to show any actual prejudice
in the defense of his case as a result
of the trial court’s denial of his
motion. We agree.’
“‘The United States Supreme Court in
Morris v. Slappy, 461 U.S. 1, 11-12, 103
S. Ct. 1610, 1616, 75 L.Ed.2d 610, 619
(1983), recognized that:
“Not every restriction on counsel’s time
or opportunity to investigate or to
consult with his client or otherwise to
prepare for trial violates a defendant's
Sixth Amendment right to counsel. See
Chambers v. Maroney, 399 U.S. 42, 53-54,
90 S. Ct. 1975, 1982-83, 26 L.Ed.2d 419
(1970).
Trial judges necessarily
require a great deal of latitude in
scheduling trials.
Not the least of
their problems is that of assembling the
witnesses, lawyers, and jurors at the
same place at the same time, and this
burden counsels against continuances
except
for
compelling
reasons.
Consequently, broad discretion must be
granted trial courts on matters of
continuances; only an unreasoning and
arbitrary
‘insistence
upon
expeditiousness
in
the
face
of
justifiable request for delay’ violates
the right to assistance of counsel.
Ungar v. Sarafite, 376 U.S. 575, 589, 84
S. Ct. 841, 849, 11 L.Ed.2d 921 (1964).
18

See also Avery v. Alabama, 308 U.S. 444,
60 S. Ct. 321, 84 L.Ed. 377 (1940);
Connor v. State, 447 So. 2d 860 (Ala.
Crim. App. 1984). Furthermore, it is
evident from recent Supreme Court
precedent
that,
although
certain
criteria such as the time provided for
the investigation and preparation of the
case, counsel’s experience, the gravity
of
the
charge
and
complexity
of
defenses, and counsel’s accessibility to
witnesses are relevant factors to
consider when evaluating effectiveness
of counsel, the controlling analysis is
whether the action prejudiced the
accused in the defense of his or her
case. See United States v. Cronic, 466
U.S. 648, 104 S. Ct. 2039, 80 L.Ed.2d
657 (1984). The accused has the burden
of proving prejudice by making a showing
that he or she did not receive ‘a fair
trial,
a
trial
whose
result
is
reliable.’
Strickland v. Washington,
466 U.S. 668 [687], 104 S. Ct. 2052,
2064, 80 L.Ed.2d 674, 693 (1984).
As
opined in United States v. Cronic,
supra:
“The right to the effective assistance
of counsel is thus the right of the
accused to require the prosecution's
case
to
survive
the
crucible
of
meaningful adversarial testing. When a
true adversarial criminal trial has been
conducted--even if defense counsel may
have made demonstrable errors--the kind
of testing envisioned by the Sixth
Amendment has occurred.’
466 U.S. at
19

656, 104 S. Ct. at 2045, 80 L.Ed.2d at
666.”’”
Hays, supra, 518 So. 2d at 771-72.
‘Fortenberry v. State, 545 So. 2d 129,
130-40 (Ala. Crim. App. 1988), affirmed,
545 So. 2d 145 (Ala. 1989), cert.
denied, 495 U.S. 911, 110 S. Ct. 1937,
109 L.Ed.2d 300 (1990).’
McWilliams v. State, 640 So. 2d 982,
992-93 (Ala. Crim. App. 1991).’
“In the present case, the appellant
failed to demonstrate that he was
prejudiced by the trial court’s denial
of his motion for continuance and that,
therefore, his counsel’s performance was
deficient for failing to secure the
continuance. Moreover, a review of the
entire
record
indicates
that
the
appellant
received
effective
representation at all stages of trial.
Because the appellant failed to make a
showing that he did not receive a fair
trial, his argument that his counsel was
ineffective must fail.”
Dallas, 711 So. 2d at 1111-1112.

(The court recognizes

that Dallas has submitted additional evidence on this
claim.
a

The court is treating this additional evidence as

separate

claim,

to

which

procedural-default defense.)
20

the

State

asserts

the

Fifth,

Dallas

claims

that

that

his

right

to

conflict-free counsel was violated because one of his
attorneys had a conflict of interest.

In rejecting this

claim, the Alabama Court of Criminal Appeals stated the
following:
“The appellant argues that he received
ineffective assistance of counsel, in
violation of the Sixth and Fourteenth
Amendments
to
the
United
States
Constitution, because of, he says, an
actual conflict of interest on the part
of his trial counsel.
“A review of the record indicates that
the appellant's argument is without
merit.
Before trial, one of the
appellant's attorneys filed a motion to
withdraw from representation of the
appellant.
The motion was based upon
that attorney's having been previously
appointed by the attorney general to
represent the Alabama Department of
Mental Health and Mental Retardation in
an unrelated civil case. The attorney
stated in his motion that he had
conferred
with
the
Disciplinary
Commission of the Alabama State Bar
Association, which issued an advisory
opinion stating that a conflict did not
exist.
The trial court denied the
motion without a hearing.

21

“‘In order to demonstrate a violation of
his Sixth Amendment rights, a defendant
must show that an actual conflict of
interest adversely affected his lawyer's
performance.” Cuyler v. Sullivan, 446
U.S. 335, 350, 100 S.Ct. 1708, 1719, 64
L.Ed.2d 333 (1980). “An actual conflict
of interest exists when an attorney owes
loyalty to a client whose interests are
adverse to another client.”
Self v.
State, 564 So.2d 1023, 1033 (Ala. Crim.
App. 1989), cert. quashed, 564 So.2d
1035 (Ala. 1990).
“While it is true that the attorney
general had appointed the appellant's
trial counsel as a deputy attorney
general in an unrelated civil matter, an
actual conflict of interest did not
exist
in
this
case
because
the
appellant's interests were not adverse
to that of the Alabama Department of
Mental Health and Mental Retardation.
The appellant argues that we must
presume prejudice is in this case
because the attorney had to struggle to
serve two different ‘masters.’ On the
one hand he was commissioned as a deputy
attorney general and in that capacity
his superior was the attorney general.
On the other hand, he was representing
a defendant charged with a crime that
the attorney general is charged with
enforcing.
However, prejudice is
presumed only when an actual conflict is
shown. Cuyler, 446 U.S. at 349-50, 100
S.Ct. at 1719. See also Browning v.
State, 607 So.2d 339, 342 (Ala. Cr.App.
22

1992).
Because no actual conflict of
interest existed in this case, prejudice
is not presumed.
“Additionally,
the
appellant
has
not demonstrated that he was prejudiced
as a result of the fact that his
attorney represented the State in the
civil case.
Nor has the appellant
established by any evidence that his
attorney's performance was adversely
affected by his appointment in that
case. The appellant must make a factual
showing that his attorney ‘made a choice
between possible alternative courses of
action, such as eliciting (or failing to
elicit) evidence helpful to one client
but harmful to the other.’
Self v.
State, supra. (citations omitted.)
“Therefore, the appellant was not denied
effective assistance of counsel or a
fair trial because of an alleged
conflict of interest on the part of his
trial counsel.”
Dallas, 711 So. 2d at 1114.
Sixth, Dallas claims that the state trial court erred
in failing to remove a prospective juror for cause.
rejecting

this

claim,

the

Alabama

Court

of

Appeals stated the following:
“As to the trial court's refusal to
grant the appellant's challenge for
23

In

Criminal

cause on the other potential juror,
which
was
based
on
her
alleged
reverse-Witherspoon
responses,
the
record indicates that this veniremember
stated that she would not automatically
impose the death penalty in every
capital case, but would follow the trial
court's instructions and would base her
decision regarding punishment upon the
aggravating and mitigating circumstances
that were presented. Taylor v. State,
[666 So.2d 36 (Ala. Cr. App. 1994)].
For this reason, we find no error in the
trial court's failure to grant the
appellant's challenge for cause.”
Dallas, 711 So. 2d at 1107.
Seventh, Dallas claims that the state trial court
erroneously allowed the jury to consider the aggravating
circumstance

that

the

capital

murder

of

especially heinous, atrocious, or cruel.

Liveoak

was

In rejecting

this claim, the Alabama Court of Criminal Appeals stated
the following:
“The appellant argues that the trial
court erred in giving an instruction to
the jury during the sentencing phase on
the aggravating circumstance that the
offense
was
especially
heinous,
atrocious, or cruel when compared to
other capital offenses because, he says,

24

the facts of the case did not support
such an instruction.
“The trial court made the following
specific findings of fact with regard to
that aggravating circumstance:
‘This Court finds that the State has
proven beyond a reasonable doubt the
aggravating
circumstance
that
this
offense
was
especially
heinous,
atrocious, or cruel compared to other
capital
offenses.
The
aggravating
circumstance “the capital of offense was
especially heinous, atrocious, or cruel
compared to other capital offense” was
intended to apply “to only those
consciousness or pitiless homicides
which are unnecessarily tortuous to the
victim.” Ex parte Kyzer, 399 So.2d 330,
334 (Ala. 1981). The State must prove
beyond a reasonable doubt, as the court
finds in this case, that Mrs. Liveoak
experienced
pre-mortem
suffering;
however, the suffering may either be
physical or psychological. “Heinous”
means extremely wicked or shockingly
evil.
“Atrocious” means outrageously
wicked and vile. “Cruel” means designed
to inflict a high degree of pain with
utter indifference to or even the
enjoyment of the sufferings of others.
This Court cannot imagine a more
depraved and cruel murder of a person
than what Mrs. Liveoak suffered at the
hands of Dallas.
He left her in the
trunk of her automobile on a summer
afternoon so that she would die simply
25

because he did not want to get caught.
He literally entombed her in the trunk
of her car.
The suffering of Mrs.
Liveoak is unimaginable.
She lay
helpless in the hot, stuffy trunk and
fought to escape, until the conditions
that she was left in caused her death.
Yet, even as torturous as her death, the
cruelest act committed by Dallas was
that he gave Mrs. Liveoak false hope; he
told her, as she was praying for him,
and that he would send help. The help
never arrived because the evidence
clearly showed that he had no intention
of sending her help. Mrs. Liveoak was
tortured at the hands of Dallas, and
this Court finds that this killing was
especially heinous and atrocious or
cruel as envisioned under Ala. Code,
Section 13A-5-49(8) (1975).’
“Because the evidence supported the
finding
that
the
aggravating
circumstance that the killing was
especially heinous, atrocious, or cruel,
the
jury's
consideration
of
that
circumstance during the sentencing phase
was proper. The jury was instructed on
the meaning of the words of the
aggravating circumstance in the context
of
capital
sentencing.
Those
instructions correctly followed the
recognized
construction
of
that
aggravating circumstance established by
the Alabama Supreme Court in Ex parte
Kyzer, 399 So.2d 330, 334 (Ala. 1981),
in
which
the
court
stated:
‘The
aggravating
circumstance
listed
in
26

§ 13-1-6(8) [now § 13A-5-49(8)] was
intended
to
apply
to
only
those
consciousness or pitiless homicides
which are unnecessarily torturous to the
victim.’ See also Ex parte Rieber, 663
So.2d 999 (Ala. 1995), cert. denied, 516
U.S. 995, 116 S.Ct. 531, 133 L.Ed.2d 437
(1995).
Thus, the trial court's
instruction
was
supported
by
the
evidence and was sufficient to guide the
jury in deciding whether to recommend
the death penalty.”
Dallas, 711 So. 2d at 1110.
Eighth, Dallas claims that the the State failed to
prove a prima-facie case of capital murder.

In rejecting

this claim, the Alabama Court of Criminal Appeals stated
the following:
“The appellant argues that the State
failed to prove a prima facie case of
capital murder against him because, he
says, he lacked the specific intent to
kill. More particularly, he argues that
the State failed to prove that he
intentionally caused the death of the
victim because her death resulted from
a heart attack. He also argues that the
State presented no evidence as to the
time of the victim's death.
“However, the record, including the
trial court's specific findings of fact,
reveals
that
the
State
presented
27

sufficient evidence from which the jury
could
reasonably
infer
that
the
appellant intended to kill the victim
and that the murder was committed during
a robbery and a kidnapping in the first
degree.
‘“‘To
affirm
a
finding
of
a
“particularized intent to kill,” the
jury must be properly charged on the
intent to kill issue, and there must be
sufficient
evidence
from
which
a
rational jury could conclude that the
defendant possessed the intent to kill.’
Ex parte Raines, 429 So.2d 1111, 1113
(Ala. 1982). Both prongs of this test
are satisfied in this case.” Kennedy v.
State, 472 So.2d 1092, 1105 (Ala. Cr.
App.), affirmed, 472 So.2d 1106 (Ala.
1985), cert. denied, 474 U.S. 975, 106
S.Ct. 340, 88 L.Ed.2d 325 (1985).’
Nichols v. State, 624 So.2d 1328 (Ala.
Cr. App. 1992).
“The jury was presented with evidence
that clearly established that the
appellant had committed the robbery and
kidnapping, with full awareness of the
victim's heart condition, and that his
treatment
of
the
victim
directly
exacerbated her heart condition, which
ultimately resulted in her death.
Evidence was also presented that the
victim did not die immediately but
rather survived for a number of hours in
the trunk.

28

“Applying the aforestated authority to
the evidence in this case, we conclude
the State presented sufficient evidence
to support the appellant's conviction.”
Dallas, 711 So. 2d at 1112-13.
Ninth and tenth, Dallas claims that the state trial
court improperly considered victim-impact evidence.

In

rejecting these claims, the Alabama Court of Criminal
Appeals stated the following:
“The appellant argues that the trial
court erred in allowing the State to
introduce victim impact testimony into
evidence during the sentencing phase
because, he says, it violated his due
process rights under the Eighth and
Fourteenth Amendments to the United
States Constitution. Specifically, he
argues that statements by the victim's
son concerning how the death of his
mother had affected him and his family,
as well as a letter sent by the victim's
daughter to the trial judge, rendered
the trial fundamentally unfair.
“An examination of the record indicates
that the victim's son testified that his
mother was a Christian and that her
murder had a profound impact on her
children and grandchildren. Mr. Liveoak
did not express any opinion about the
crime,
the
appellant,
or
the
appropriateness of a death sentence.
29

Mr. Liveoak's statements with respect to
the impact of his mother's murder on him
and on his family were relevant to the
jury's decision as to whether to
recommend that the death penalty be
imposed.
See Payne v. Tennessee, 501
U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d
720 (1991). Additionally, there is no
indication from the record that a victim
impact statement was included in the
presentence investigation report. Cf.
Ex parte Rieber, supra. (‘[A] remand is
not required in every death penalty case
in which a victim impact statement
appears in a presentence investigation
report.’)
“Nor was there any indication that the
trial court considered a letter written
by the victim's daughter to the trial
court addressing her thoughts on the
appellant
and
the
appropriate
punishment.
Because the letter was
received
by
the
trial
court
approximately two weeks after the court
entered its sentencing order, the letter
could not have been considered in
determining the sentence; thus, the
appellant's due process rights were not
violated.”

As to all of the above ten claims, the Alabama
Supreme Court, on direct appeal, summarily affirmed the
Alabama Court of Criminal Appeals as follows:

30

“Dallas raises the same issues here that
he argued in the Court of Criminal
Appeals.
We have thoroughly reviewed
the Court of Criminal Appeals’ opinion,
which addressed each of these issues on
the merits, and we have considered the
arguments made in Dallas’s brief and
advanced by his counsel during oral
arguments.
We have given specific
attention to Dallas's argument that the
trial judge erred in not instructing the
jury
on
reckless
murder
and
on
criminally negligent homicide and that
the judge erred in not granting a
continuance. We have also examined the
record for any plain error.
Based on
our review, we find no reversible errors
in either the guilt phase or the
sentencing phase of Dallas’s trial. We
therefore affirm the judgment of the
Court of Criminal Appeals.”
Dallas, 711 So. 2d at 1114.
Applying § 2254 and the United States Supreme Court’s
caution about its application, this federal court cannot
say that Dallas is entitled to habeas relief on any of the
above ten claims.

Dallas has not shown, pursuant to

§ 2254(e)(1), that the decisions of the state courts were
contrary to or involved an unreasonable application of
clearly established federal law or that the decisions of

31

those courts were based on an unreasonable determination
of the facts in light of the evidence presented in the
state-court proceedings.

B.
The court turns next to Dallas’s eleventh claim: the
State exercised its peremptory strikes in a racially
discriminatory manner.

The court has considered this

claim separately because it is troubling and requires more
discussion.
In Batson v.

Kentucky, 476 U.S. 79 (1986), the

United States Supreme Court held that the Equal Protection
Clause of the Fourteenth Amendment prohibits the use of
peremptory challenges of venire members based solely on
the fact that the venire members belong to the same race
as a criminal defendant.

Batson has been extended to

peremptory challenges of venire members who did not share
the same race with the defendant.
U.S. 400 (1991).

32

Powers v. Ohio, 499

In Rice v. Collins, 546 U.S. 333 (2006), the United
States Supreme Court summarized the legal standard that
courts must apply in analyzing Batson claims:
“A defendant’s Batson challenge to a
peremptory strike requires a three-step
inquiry.
First, the trial court must
determine whether the defendant has made
a
prima
facie
showing
that
the
prosecutor
exercised
a
peremptory
challenge on the basis of race.
476
U.S., at 96-97, 106 S. Ct. 1712.
Second, if the showing is made, the
burden shifts to the prosecutor to
present a race-neutral explanation for
striking the juror in question. Id., at
97-98, 106 S.Ct. 1712.
Although the
prosecutor must present a comprehensible
reason, ‘[t]he second step of this
process does not demand an explanation
that is persuasive, or even plausible;’
so long as the reason is not inherently
discriminatory, it suffices. Purkett v.
Elem, 514 U.S. 765, 767-768, 115 S.Ct.
1769, 131 L.Ed.2d 834 (1995) (per
curiam).
Third, the court must then
determine whether the defendant has
carried his burden of proving purposeful
discrimination. Batson, supra, at 98,
106 S.Ct. 1712.
This final step
involves evaluating ‘the persuasiveness
of the justification’ proffered by the
prosecutor, but ‘the ultimate burden of
persuasion
regarding
the
racial
motivation rests with, and never shifts

33

from the opponent of the strike.’
Purkett, supra, at 768, 115 S.Ct. 1769.”
546 U.S. at 338.
The state trial court’s decision on the ultimate
question of discriminatory intent represents a finding of
fact of the sort accorded great deference on appeal.
Hernandez

v.

(plurality).

New

York,

Thus,

500

U.S.

352,

364

See

(1991)

the ultimate question for this

federal court is whether the state appellate courts’
determination that peremptory challenges of black jurors
in this case were not “motivated by intentional racial
discrimination” is a decision which was “contrary to” or
“an unreasonable application of federal law” or a decision
“that was based on an unreasonable determination of the
facts in light of the evidence presented in the State
court proceeding.”

28 U.S.C. § 2254 (d)(1) and (2).

Moreover, there is a presumption of correctness to factual
determinations made by state courts, and the presumption
may be rebutted by only “clear and convincing evidence.”
28 U.S.C. 2254 (e)(1) at 364.
34

On
Appeals

direct
and

appeal,

the

the

Alabama

Alabama
Supreme

Court
Court

of

Criminal

reviewed

and

rejected Dallas’s claim that the prosecution exercised its
peremptory strikes in a racially discriminatory manner to
exclude black venire members.
the

Alabama

Court

of

In rejecting that claim,

Criminal

Appeals

stated

following:
“The
appellant
argues
that
the
prosecution struck black veniremembers
in a racially discriminatory manner in
violation of Batson v. Kentucky, 476
U.S. 79, 106 S. Ct. 1712, 90 L.Ed.2d 69
(1986), and Ex parte Branch, 526 So. 2d
609 (Ala. 1987), by using 12 of his 16
strikes to remove 12 of the 15 black
veniremembers.
“Although the trial court acknowledged
that the appellant had failed to prove
a
prima
facie
case
of
racial
discrimination based solely on these
numbers, it nevertheless required the
prosecutor to explain his reasons for
his strikes. Therefore, we must examine
the
stated
reasons.
‘[O]nce
a
prosecutor has offered a race-neutral
explanation
for
the
peremptory
challenges and the trial court has ruled
on the ultimate question of intentional
discrimination, the preliminary issue of
whether the defendant had made a prima
35

the

facie showing becomes moot.’ Hernandez
v. New York, 500 U.S. 352, 358, 360,
111. S. Ct. 1859, 1866, 114 L.Ed.2d 395
(1991).
Where the challenged party’s
explanations for its strikes are a part
of the record, the appellate court will
review those explanations regardless of
the manner in which they came into the
record.
See, e.g., Huntley v. State,
627 So. 2d 1013, 1016 (Ala. 1992);
Jackson v. State, 594 So. 2d 1289, 1293
(Ala. Crim App. 1991); Williams v.
State, 548 So. 2d 501, 504 (Ala. Crim.
App. 1988), cert. denied, 489 U.S. 1028,
109 S. Ct. 1159, 103 L.Ed.2d 218 (1989).
Additionally,
‘[a]
circuit
court’s
ruling in a Batson objection is entitled
to great deference and we will reverse
a circuit court’s Batson findings only
if they are “clearly erroneous.”’
Branch, 526 So. 2d at 625-26.
“The prosecutor stated that 5 of the 12
veniremembers were struck because they
indicated that they were opposed to the
death penalty.
‘Although a juror’s
reservations about the death penalty may
not be sufficient for a challenge for
cause, his view may constitute a
reasonable explanation for the exercise
of a peremptory strike.’ Johnson v.
State, 620 So. 2d 679, 696 (Ala. Crim.
Appl. 1992), reversed on other grounds,
620 So. 2d 709 (Ala. 1993), on remand,
620 So. 2d 714 (Ala. Crim. App.), cert.
denied, 510 U.S. 905, 114 S. Ct. 285,
126 L.Ed.2d 235 (1993). Two of the 12
veniremembers were struck because the
36

prosecutor thought they were inattentive
during voir dire.
The fact that a
veniremember ‘appear[ed] to be asleep or
inattentive’ during voir dire has been
held to be an acceptable reason for a
strike. Kelley v. State, 602 So. 2d 473,
476 (Ala. Crim. App. 1992). Four of the
12 veniremembers were struck because
they had family members who had been
convicted of a crime, which has also
been held to constitute a race-neutral
reason for striking a potential juror.
See Gorum v. State,
671 So. 2d 764
(Ala. Crim App. 1995); Fort v. State,
668 So. 2d 888 (Ala. Crim. App. 1995).
“The last veniremember to be struck by
the prosecutor was struck because he
could
not
complete
his
jury
questionnaire. He did, in fact, serve
as an alternate juror. The prosecutor
stated that ‘although [he] liked him in
all other respects, with the bank record
and the Computer Crime Act allegations,
[he] felt it would not be the best for
him to sit as a juror in this case.’
Cf.
Vanderslice v. State, 671 So. 2d
769, 770 (Ala. Crim. App. 1995) (a
veniremember’s apparent inability to
understand what was being said to him
was a sufficient race-neutral reason to
justify a peremptory strike). As long
as there is a legitimate nonracial
reason for the challenged strike, the
Batson principles are not violated.
Zanders v. Alfa Mutual Insurance Co.,
628 So. 2d360, 361 (Ala. 1993).

37

“In the present case, the trial court’s
denial of the appellant’s Batson motion
was not ‘clearly erroneous.’ Ex parte
Branch, 526 So. 2d at 625-26.”
Dallas, 711 So. 2d at 1104-1105.

As with all the other

claims asserted by Dallas on direct appeal, the Supreme
Court of Alabama did not write separately to this issue;
rather, conducting a “plain error” review, the court
summarily affirmed the judgment of the Court of Criminal
Appeals.

Dallas, 711 So. 2d at 1114.1

Although the state trial court did not find that
Dallas made a prima-facie showing that the prosecutor
exercised his peremptory strikes on the basis of race, the
court required the prosecutor to proffer his reasons for
his peremptory strikes.

Tr. Vol. 5 pp. 478-479.

The

prosecutor stated his reasons for his strikes as follows:

1. The State, pointing to facts from the record on
venire, Tr. Vol. 5 pp. 479-490, argues that, in fact, 16
(not 15) of the 44 venire members were black.
Even
though this appears to be verified by the state-court
record and would further support the State’s position
that there was no purposeful discrimination, this court
will analyze the facts as they were presented to and
recited by the Alabama appellate courts.
38

“The State’s first strike was Juror 113
.... [A]s the court will remember, was
a challenge for cause.
She was very
ambivalent as to the death penalty. I
wrote down she seemed very confused as
to whether she could follow the law in
regards to the capital phase of this
trial. And that’s why I struck here.
“The state’s next strike was Juror 73.
I have written down in my notes that she
was extremely weak on the death penalty.
She said at first she could not
entertain it, but after questioning from
the Court and defense counsel she said
she could probably consider the death
penalty.
I didn’t know - - my opinion,
that did not raise to a challenge for
cause, but it certainly raise to a
peremptory strike. That’s Juror 73 ....
She was [a] black female, and the other
one [Juror 113] was a black female.
“The next strike is Juror 91, [a] black
female. Again, I have in my notes that
she said it would be hard for her to
vote for the death penalty.
Her
feelings are very strong on that. She
thought that she could overcome it. I
wrote weak on death penalty. Also, she
had in her questionnaire that she was
taking medication as to diabetes and
high blood pressure. She checked that
it could interfere with her ability to
sit as a juror. So that’s why she was
struck.

39

“The next strike was Juror 45 .... She
is a white female. She was the one, if
the Court will remember, had a brother
with a drug problem and was involved in
some type of a murder case. It came out
to some type of reckless homicide. I am
not sure what it was.
She said, and
would make me very concerned, [when he]
was under the influence of drugs her
brother would turn into a Jekyll and
Hyde. That seemed to go to pretty much
what the defense is in this case. And
that’s why I struck Juror 45.
“The next strike was Juror 67 .... She
is a black female. Although she did not
say so in her questioning to me, she did
check on her questionnaire that she
takes high blood pressure medication,
and that would interfere with her
ability to sit as a juror. She had two
uncles that was somehow or another in a
self-defense type of shooting and killed
some person and was prosecuted for it.
Also, I had that she was extremely weak
on the death penalty.
I have against
the death penalty. She may be able to
consider it, but she was not sure.
That’s why I struck Juror 67.
“The next strike was Juror Number 20
..., [a] black female.
One reasons I
struck her was because she had a seventh
grade education. There are going to be
bank records, and there are a lot of--as
the
Court
is
aware
of
the
indictment--things
concerning
the
Computer Crime Act and such that may be
40

difficult for her to follow.
Her
spelling
was
very
poor
on
the
questionnaire. I noted on two occasions
she had her eyes closed and seemed to be
asleep during voir dire. I noticed that
she walker with a cane. And she said as
far as the death penalty, she doesn’t
favor it, but she would consider the
factors that you would give her, impose
the death penalty, but her first
response out of her mouth was that she
did not favor the death penalty. That’s
why Juror Number 20 was struck.
“My next strike was Juror 27 .... We
showed him with some criminal arrests
just as recently as four years ago. He
is a white male. One reason I struck
him, also, is he is [R.B.]’s son, and I
know [R.B.] real well, and I have gotten
into a lot of arguments with [R.B.]
about the death penalty. And if he has
got any of his daddy’s stubbornness in
him with regard to the issues, I just
didn’t feel comfortable leaving him on
the jury.
“My next strike was Juror Number 93 ....
He was a white male. We showed him also
with a large number of arrests as
recently as June of 1995.
He was
twenty-four years old. I thought that
was a little young for this case.
I
didn’t particularly like his dress.
That’s not the main reason, but all of
that together was why he was struck.

41

“The next strike Juror Number 1 .... I
have noted that he was wearing earrings
each time in court.
Call me old
fashioned. I do not like people wearing
earrings, whether black or white or
whatever. Also, he had a large number
of arrests. And in August of 1993 he
was prosecuted for Theft I by our
office.
The case was nol-prossed on
payment of restitution in February of
‘94. He was a black male.

“Next strike was Juror Number 31 ....
He was the teacher from Goodwyn High
School. He sat on the front row. He
looked totally disinterested during the
entire voir dire process. Several times
he rolled his eyes. I just couldn’t get
a feel for him, Judge, because of his
disinterest in everything. Everything
else looked fine on, except I did not
like the way he acted in his mannerisms
and responses.
And it is kind of
similar to the reason we struck [the]
juror back a few ....
And for that
reason, I struck him.
“The next strike was Juror Number 58
..., [a] white female. She stated that
she believes in the death penalty but
she was very uncomfortable about having
to imposed it and having to make that
decision.
She said it would be
agonizing for her. I felt she was very
weak on that issue, and for that reason
I struck her. Juror 58 ..., [a] white
female.
42

“The next strike was Juror 95. ... She
is a black female.
I struck her
basically for the same reason I struck
[Juror 58].
She first said during
general voir dire that she would have
problems sitting in judgement of another
person. She regards the death penalty,
she said she couldn’t express an
opinion. She knew the Bible stood for
it, but she said that she was more
inclined to go for life without parole,
and she personally did not want to have
to make the decision to sentence someone
to death.
She was unemployed.
All
those reasons together is the reason I
struck [her].
“Next strike was ... Juror 94.
The
Court is aware that he was late for
court.
Not only was he wearing an
earring,
but
he
was
wearing
two
earrings.
He had his arms crossed
several times. I did not particularly
like his attitude during questioning.
The clincher of all was, when I was
leaving the courtroom, he came down to
our office and was asking about were
child support court was. I am not sure
whether he had to go to child support
court or know somebody in child support
court. But, again, I did not want to
take the risk of him either being
prosecuted for child support or having
some friend of his being prosecuted for
child support sitting on a capital
murder case, and that’s why I struck
him.

43

“My next strike was Juror 29 .... The
reason he was struck was because he had
a reading disorder as he stated.
He
also stated he had a cousin that was
convicted of drugs.
This spelling,
again, on the jury questionnaire was
very poor.
Again, it is going to be
bank records and such that are going to
be coming in in this case, and that’s
the reasons I struck him. Juror 29 ...,
black male.
“This juror was going to be my alternate
until a couple of my strikes got eaten
up.
This was ... [a] black female,
Juror Number 26.
The reason I struck
her was because, even though she said
her brother got what he deserved, still
having someone of her family, immediate
family, convicted of murder, I just felt
it was too big of a risk for them to sit
as a juror in my case.
“The last strike, Juror 52 .... He was
going to be on the jury, but I left him
as the alternate.
And the reason I
struck him was, again, that he had--he
could
not
even
complete
his
questionnaire, if the Court recalls.
Donna had to do it for him. I liked him
in all other respects, but, again, with
the bank records and the Computer Crimes
Act allegations, I felt it would not be
best for him to sit as a juror in this
case.
“Judge, those are my reasons.
And I
would now make an objection as to the
44

defense’ strikes
sixteen whites.”
Tr.

of

fifteen

out

of

Vol. 5 pp. 479-489.
In

overruling

Dallas’s

and

the

State’s

Batson

objections, the court concluded that, “It seems to me the
responses given by both sides are fairly consistent, the
majority of which appear to be the perceptions of the
lawyers about individuals and whether or not they may be
hesitant in their responses, whether or not they were
attentive

to

their

responses,

whether

or

not

they

expressed strong or weak opinions on the death penalty.”
Tr.

Vol.5

p.

511.

As

stated,

the

trial

judge’s

conclusion was affirmed on appeal.2
The

ultimate

question

for

this

federal

court

is

whether the state appellate courts’ determination that
peremptory challenges of black jurors in this case were
not motivated by intentional racial discrimination is a
decision

that

was

“contrary

to”

or

“an

unreasonable

2. The court will not address the State’s Batson
objections to Dallas’s strikes of certain jurors because
that issue is not relevant here.
45

application of federal law” or a decision “that was based
on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” 28
U.S.C. § 2254 (d)(1) and (2).
Dallas argues that his claim that the prosecutor used
his peremptory strikes in a racially discriminatory manner
is premised on evidence of disparate treatment of black
and

white

jurors

and

a

documented

history

of

race

discrimination by the district attorney’s office.

He

notes that the prosecutor used 12 of his 16 peremptory
strikes to strike African-American jurors: Jurors 1, 20,
26, 29, 31, 52, 67, 73, 91, 94, 95, and 113.

He then

argues that the six ‘race neutral’ reasons given for
striking

these

12

discrimination.

jurors

Those

were

reasons

pretexts
were

as

for

racial

follows:

(1)

certain jurors were “weak” on the death penalty, (2)
certain jurors were on medication that would interfere
with

their

demonstrated

jury

service;

poor

“attitudes”;

46

(3)

certain
(4)

one

male
juror

jurors
had

an

alleged “large” number of arrests; (5) certain jurors had
relatives involved in homicides or drug use; and

(6)

certain jurors appeared to have low education levels or
learning disabilities which might make it “difficult” for
them to “follow” the evidence of bank records that would
be introduced in the case.
The

prosecutor

struck

African-American

Juror

113

because she was “very ambivalent” about the death penalty
and because she was “very confused as to whether she could
follow the law.”

Tr. Vol. 5 pp. 479-480.

Although her

testimony, which was less than clear, might be read to
indicate that she could consider the death penalty “[i]f
the fact was proven”, the statement made immediately prior
to this testimony was that “I would vote for life without
parole before I would vote for the death penalty.”
Vol. 5 pp. 410-411.

Tr.

In addition, when Dallas’s counsel

asked her whether she thought that she would be able to
follow the law as it was explained to her by the trial
court,

she

responded,

“I

am

47

confused.

I

am

really

confused.” Tr. Vol. 5 p. 412.

In fact, in response to

the

this

prosecutor’s

challenge

of

juror

for

cause,

Dallas’s own counsel stated, “I think this juror may not
be the most desirable juror for a number of reasons, but
I don’t think those rise to the level of a factual basis
requiring ... a challenge for cause.” Tr. Vol. 5 pp. 414415.
The

law

is

well-settled

that

a

juror’s

attitude

toward the death penalty constitutes a valid race-neutral
reason for exercising a peremptory strike against the
juror.
Cir.

Atwater v. Crosby, 451 F. 3d 799, 806-807 (11th

2006)

(“[T]he

prospective

juror

had

difficulty

answering the questions put to her and her demeanor
indicated

that

she

was

hesitant

regarding the death penalty.

and

uncomfortable

This is a valid, race-

neutral reason for exercising a peremptory challenge, and
the court did not abuse its discretion in upholding the
challenge.”).

The issue is not whether this juror was

qualified or disqualified as a matter of law, but rather

48

whether the prosecutor had a non-racial reason to strike
her. Mere hesitancy about the death-penalty could be such
a reason. In response, Dallas argues that this reason is
a pretext for the discriminatory striking of Juror 113
because certain white jurors who “expressed concerns about
the death penalty” were not struck.
However, the record reflects that, unlike Juror 113,
white Jurors 63, 87, and 115 testified that they did not
have a personal opinion about the death penalty and that
they would be able to consider recommending either a
sentence of death or life without parole.

Tr. Vol. 5 pp.

260-65, 318-323; Vol. 6 pp. 416-422. Moreover, the record
reflects that the prosecutor struck two white jurors
(Jurors 27 and 58) because of their attitude toward the
death penalty.

Tr. Vol. 6 pp. 468-469.

The prosecutor also struck African-American Juror 73
because she was “extremely weak on the death penalty.” Tr.
Vol. 6 p. 480.

Although she testified, after being

pressed on the issue, that she “probably could” consider

49

recommending the death penalty, she first testified as
follows:
“THE COURT: Do you think given the
appropriate evidence and circumstances
you could entertain the death penalty as
an appropriate punishment?
“[JUROR]: No
“THE COURT: You don’t think so?
“[JUROR]: (Shakes head negatively).”
Tr. Vol 5 p. 300.

Then later when the prosecutor asked

her whether she would be more inclined to recommend a
sentence of death or a sentence of life without parole,
she testified that she would be more inclined to recommend
a life without parole sentence.

Id. at 304. As stated,

mere hesitancy about the death-penalty is a race-neutral
reason.
The

prosecutor

struck

African-American

Juror

91

because of her attitude toward the death penalty and
because she indicated on her juror questionnaire that she
was taking medications that could interfere with her

50

ability to serve as a juror.3

Tr.

Vol. 6 pp. 480-481.

Although this juror testified that she would “try” to set
aside her personal opinion against the death penalty, she
also testified as follows:
“THE COURT: Do you think given the
appropriate circumstances, the evidence
and the law, that you could consider the
death penalty as an appropriate penalty?
“[JUROR]: That would be hard..
“THE COURT: It would be more difficult
to do that is what you are saying?
“[JUROR]: Uh-huh.
“THE COURT: I understand that because of
the weight of the decision.
“[JUROR]: Right.
“THE COURT: But your personal opinion is
that that would just be more difficult
to do?

3. The jury questionnaires were not included in the
state appellate record, and, therefore, are not before
this court for consideration. Even so, the Eleventh
Circuit has clearly held that one race-neutral reason for
a peremptory strike, which is supported by the record, is
sufficient to meet the prosecutor’s burden even where
another of the proffered reasons for the strike is not
supported by the record. United States v. Diaz, 26 F. 3d
1533, 1543 (11th Cir. 1994).
51

“[JUROR]: Right.
“THE COURT: If the law says that you
should
consider
that
under
these
circumstances, would you be able to do
that?
“[JUROR]:
Yes,
knowledge.

sir,

based

on

my

“THE COURT: You don’t think your
personal opinion would be so great that
it would prevent you from being able to
consider the death penalty?
“[JUROR]: Well, I must say, it would be
pretty strong, but I would try to do the
best to my knowledge.
***
“THE COURT: And what you are telling me
is that your personal opinion would be
in favor of life without parole. But do
you think you could set that aside and
consider the death penalty as an
appropriate penalty, also?
“[JUROR]: Sir, I would try.
“THE COURT: Are you uncertain whether
you could do it or not?
“[JUROR]: Kind
decision.”

of.

52

That’s

a

tough

Tr.

Vol.

5.

pp.

334-335.

Furthermore,

during

her

questioning by the prosecutor, this juror again testified
that she was not sure that she could set aside her
personal

opinion

about

the

death

penalty,

and

she

repeatedly stated that she would be more comfortable
recommending a sentence of life without parole.

Tr. Vol.

5 pp. 337-338. As stated, mere hesitancy about the deathpenalty is a race-neutral reason.
The prosecutor also struck African-American Juror 67
because

of

her

attitude

toward

the

death

penalty.

Although this juror finally testified that she might be
able to consider voting for the death penalty, she also
testified as follows:
“THE COURT: . . .
Do you have a
personal opinion one way or the other
about the death penalty for life without
parole?
“[JUROR]: I am against the death
penalty. I would rather them have life
without parole.
“THE COURT: You would be more inclined
to vote for life without parole in the
appropriate case?
53

“[JUROR]:

Right
***

“[LAWYER]: Your preference for life
without parole, ... what is that based
upon?
“[JUROR]:
Based upon I just feel like
that’s the way I feel.
I am not for
the death penalty.
I just feel life
without parole. A person’s death, they
have to deal with it.
“LAWYER]: It is just a personal belief
of yours?
“[JUROR]: Yes.
“LAWYER]: Are there any circumstances
that you can think of where you would
vote to recommend the death penalty?
“[JUROR]: I haven’t reached that far.
No.”
Tr. Vol. 5 pp. 284-287.

As stated, mere hesitancy about

the death-penalty is a race-neutral reason.
The

prosecutor

struck

Juror

67

also

because

she

testified that two of her uncles were involved in the
death of another person and that one of her uncles was in
prison, apparently as a result of that crime.

54

Tr. Vol.

5 p. 288.

The Eleventh Circuit has held that a party may

exercise a peremptory strike against a juror who has
family members with criminal histories.

See, e.g. United

States v. Houston, 456 F. 3d 1328, 1337 (11th Cir. 2006)
(“This

court

has

previously

held

that

prior

family

involvement with drug charges is a ‘reasonably specific’
and ‘neutral’ explanation for a prosecutor’s exercise of
a peremptory strike.

We see no reason why prior family

involvement with armed robbery would not be considered as
a neutral explanation for a strike--particularly when the
case to be tried includes an armed robbery charge.”)
However,

Dallas

contends

that

this

reason

was

a

pretext for discrimination because the prosecutor failed
to strike similarly situated white jurors.

Specifically,

Dallas argues that the prosecutor failed to strike white
Juror 84, whose wife had a drug conviction; white Juror
19, who was “critical” of the way the District Attorney’s
office prosecuted the woman who killed her son; and white
Juror

108,

who

had

a

relative

55

with

a

drug

problem.

However, a review of the record demonstrates that Dallas’s
defense counsel struck Jurors 19 and 108.

Tr. Vol. 6 pp.

468-469. As to Juror 84, he testified that his wife plead
guilty to abusing a “diet suppressant.”
316-317.

Tr. Vol. 5 pp.

It could be reasonably argued that a juror who

has a family member with a conviction for abusing a “diet
suppressant” is not “similarly situated” to a juror who
has family members who were involved in the death of
another person due to an argument and for which one family
member went to prison.

See, e.g., Hollingsworth v.

Burton, 30 F. 3d 109, 112-113 (11th Cir. 1994) (no Batson
violation where the prosecutor struck a black juror who
had some of the same characteristics as a seated white
juror, but where, under the facts of the case, raceneutral

reasons

existed

making

the

white

juror

more

preferable to the prosecution.).4

4. The prosecutor said he struck this juror also
because she was taking medicine to treat her high blood
pressure.
Since this juror testified that her blood
pressure medication would not interfere with her ability
to serve as a juror, the State conceded in its brief that
(continued...)
56

The prosecutor also struck African-American Juror 20
because of her attitude toward the death penalty; “because
she had her eyes closed and seemed to be asleep during
voir dire”; and because of her seventh grade education and
her “very poor” spelling on her juror questionnaire.
Vol. 6 pp. 482-483.

Tr.

With respect to the death penalty,

although this juror ultimately testified that she could
consider voting for the death penalty, she also testified
as follows:
“THE COURT: ... Do you have an opinion
about capital punishment; that is, the
death penalty? Do you have an opinion
one way or the other about that?
“[JUROR]:
penalty.

I

don’t

favor

the

death

4. (...continued)
one of the reasons given for striking her is not
credible.
However, as stated, the Eleventh Circuit has
held that one race-neutral reason for a peremptory strike
which is supported by the record is sufficient to meet
the prosecutor’s burden even where another of the
proffered reasons for the strike is not supported by the
record.
See supra note 3. Accordingly, the court will
evaluate the other two reasons given by the prosecutor
for striking this juror.
57

“THE COURT: Do you favor life without
parole over the death penalty if those
are the choices?
“[JUROR]: Yes.”
Tr. Vol. 4 pp. 158-161.

As stated, mere hesitancy about

the death-penalty is a race-neutral reason.
As to Juror 20, the prosecutor stated that, “I noted
on two occasions she had her eyes closed and seemed to be
asleep during voir dire.
a cane.”

I noticed that she walked with

Tr. Vol. 5 p. 483.

Dallas argues that the

State’s “alleged personal preferences” were used as a
pretexts for race-based strikes.

He argues that the

prosecutor’s reasons for striking her based upon her lack
of attention during voir dire and because she walked with
a

cane

were

pretexts.

However,

Dallas

provides

no

evidence of similarly situated white jurors who were not
struck

It is well-settled that a party may exercise a

peremptory strike against a juror who is inattentive or
who appears to be sleeping during voir dire.

See United

States v. Diaz, 26 F. 3d 1533, 1542-1543 (11th Cir. 1994)

58

(citing United States v. Hendrieth, 922 F. 2d 748, 749-750
(11th Cir. 1991) (“upholding trial court’s decision to
allow strike based upon juror’s inattentiveness and her
rolling and rubbing her eyes during voir dire.”)).
As stated, the prosecutor struck Juror 20 also because
she had a seventh grade education and because her spelling
on her juror questionnaire was “very poor.”

Tr. Vol. 6

pp.

Court

482-483.

The

United

States

Supreme

has

indicated that a juror’s education level constitutes a
valid race-neutral reason for a party to exercise a
peremptory challenge.

See, e.g., Batson v. Kentucky, 476

U.S. 79, 89 n. 12 (1986) (“Prior to voir dire examination,
which serves as the basis for exercise of challenges,
lawyers wish to know as much as possible about prospective
jurors, including their age, education, employment, and
economic status, so that they can ensure selection of
jurors who at least have an open mind about the case.”)
(emphasis added).

Indeed, “[t]he attainment of a certain

educational level has been accepted by numerous circuits

59

as a race-neutral criterion for exercising a peremptory
challenge under the Batson mandate.”

United States v.

Marin, 7 F. 3d 679, 686 (7th Cir. 1993).
Dallas argues that this reason for the strike is a
pretext because it is not supported by the record and
because similarly situated white jurors were not struck.
As to his first contention, Dallas says that, because the
evidence of bank transactions referenced--records of ATM
withdrawals--was undisputed, there was no chance less
educated jurors would be confused by this information as
Respondent claims.

Tr. Vol. 7, pp. 846-47.

Indeed,

Dallas argues that “the State surely knew at the time of
voir dire there was no dispute as to the charged financial
crimes.”

Petitioner’s Brief on the Merits (Doc. No. 88)

at p. 36.

However, Dallas presents no evidence that the

State did know this fact during voir dire.

Rather, he

argues that, because his counsel conceded commission of
the financial crimes during opening statement to the jury,
Tr. Vol. 5 p. 545, and during closing argument, Tr. Vol.

60

7 p. 870, that the State must have known during voir dire
there was no issue surrounding the bank records.
more, however,

Without

the court can not conclude that the State

knew, at the time of voir dire, that there was no dispute
as to the charged financial crimes.
Dallas also maintains that the State failed to strike
two white jurors who made mistakes in filling out their
jury questionnaires, thus demonstrating that the strike of
Juror 20 based upon her education level was a pretext.
Dallas points to the State’s failure to strike Juror 19,
who failed to characterize her son’s death as resulting
from a crime, and Juror 111, who failed to recall that she
heard something previously about the facts of this case.
However, there is no evidence as to the education levels
of these jurors.

Moreover, the evidence before the court

is that the spelling on Juror 20's questionnaire was “very
poor.”

Tr. Vol. 6 pp. 482-483, which could be viewed as

indicating repeated errors on the questionnaire. There is

61

no evidence Jurors 19 and 111 made repeated errors in fact
or spelling on the questionnaire.
The prosecutor struck Juror 1 because of his arrest
record and because he was wearing earrings.
prosecutor stated:

Indeed, the

He struck this juror because he “had

a large number of arrests.

And in August of 1993 he was

prosecuted for Theft I by our office.

The case was nol-

prossed on payment of restitution in February of 94.” Tr.
Vol. 5 p. 484.

Dallas argues that the State’s reason for

striking this juror because he “has a large number of
arrests” is not supported by the facts.

However, whether

the juror had many arrests or just one is immaterial; the
important fact is that he had one.

It is well-settled

that a juror’s prior criminal history or arrest record
constitutes a valid race-neutral reason for a party to
exercise a peremptory challenge. Murphy v. Dretke, 416 F.
3d 427, 433 (5th Cir. 2005).

Moreover, before striking

Juror 1, the prosecutor struck two white male jurors

62

(Jurors 27 and 93) who also had prior arrests.

Tr. Vol.

5 p. 483-484.
The State struck Juror 1 also because he was wearing
earrings.

The

prosecutor

explained:

“Call

me

old

fashioned. I do not like people wearing earrings, whether
black, white, or whatever.”

Tr. Vol.5 p. 484.

In Purkett

v. Elem, 514 U.S. 765 (1995), the United States Supreme
Court held that the prosecutor’s explanation that he
struck one of the jurors because the juror “had long,
unkempt hair, a mustache, and a beard” was race-neutral
and satisfied the State’s burden of articulating a nondiscriminatory reason for the strike.”

Id. at 769.

The prosecutor next struck African-American Juror 31
because of his demeanor and inattentiveness during voir
dire.

The prosecutor explained:

front row.

He looked totally disinterested during the

entire voir dire process.
eyes.

This juror “sat on the

Several times he rolled his

I just couldn’t get a feel for him, Judge, because

of his disinterest in everything.

63

Everything else he

looked fine on, except I did not like the way he acted in
his mannerisms and responses.” Tr. Vol. 5 at pp. 484-485.
It is well-settled that a juror’s inattentiveness during
voir dire constitutes a valid race-neutral reason for a
party to exercise a peremptory strike against the juror.
See United States v. Cordoba-Mosquera, 212 F. 3d 1194,
1197 (11th Cir. 2001).
The

prosecutor

struck

because “she said that she

African-American

Juror

95

was more inclined to go for

life without parole, and she personally did not want to
have to make the decision to sentence someone to death.”
Tr. Vol. 5 at 486.
consider

Although she testified that she could

recommending

death,

she

also

testified

follows:
“THE COURT: But if the evidence supported a
finding of capital murder, you are telling
me--would you be more inclined to give the
death
penalty
or
is
what
you
are
saying--well, you tell me what you are
saying. If there was a verdict of capital
murder, what do you think you would do at
that time?

64

as

[JUROR]: I would say life without parole.
But as far as the death penalty, I don’t
believe in killing anyone. But in the Bible,
like I say, you know, if ye kill, ye shall be
killed. So I try to live by the Bible.
“THE COURT: I think I understand a
little bit better what you are saying
now.
You personally wouldn’t want to
make a decision where somebody’s life
had to be taken?
“[JUROR]: Yes, sir.”
“THE COURT: You would lean towards life
without parole?
“[JUROR]: Yes, sir.
“THE COURT: But if the law supported a
finding of the death penalty, you think you
could possibly do that?
“[JUROR]: Yes, sir.
“THE COURT: Do you think you could set your
personal feelings about the death penalty
aside long enough to rule based upon the
evidence and the law in the case?
“[JUROR]: I would have to pray very hard
to do so.
* * *
“[LAWYER]: ... [Y]esterday when being
questioned by the Judge in the whole
group, you indicated that you may have
65

some problems sitting in judgment of
another person.
I know you also said
that you do believe in justice.
What
problem would you have?
“[JUROR]: Well, as far as individual
actions of a person without breaking the
law, I could not judge them. But as far
as breaking the law and doing something
wrong or hurting somebody or taking
somebody’s life, I guess I could go
along with it. But what I meant by that
is that I don’t want to judge anybody
just by individual everyday living.
That’s what I meant. But, still, at the
same time, I don’t want to make a
decision, you know, to take somebody’s
life, even though they are in the wrong.
It is kind of a hard decision for me.
“[LAWYER]: I understand. I know it is a
very hard decision.
Do you think you
would be able to set aside this conflict
that you have and be able to sit as a
juror in this case?
“[JUROR]: Yes, sir, like I say, I would
have to pray very hard to have that type
attitude.
“[LAWYER]: But you are not comfortable?
“[JUROR]: No sir.”
Tr Vol 4, pp. 359-361.

Dallas points to the testimony of

Juror 95, where she references the Bible’s instructions,

66

“[y]e shall kill, ye shall be killed” as evidence that
Juror 95 was impartial on the death penalty.
taking

that

statement

in

context

within

However,

the

entire

dialogue, it could be reasonably argued that Juror 95 was
not comfortable with her role as a juror in this case and
was much more inclined to recommend a sentence of life
without parole. As stated, mere hesitancy about the death
penalty is a race-neutral reason.5
The prosecutor struck Juror 94 because he wore two
earrings and because he was late to court; and because of
his attitude and demeanor during voir dire, Tr. Vol. 5 pp.
486-487; struck Juror 52 because “he could not even
complete his questionnaire,” id.; struck Juror 29 because
“he had a reading disorder” and because “he had a cousin
that was convicted of drugs,” id.; and struck Juror 26
because she had “someone of her family, immediate family,

5. Moreover, prior to striking Juror 95, the
prosecutor struck a white Juror 58 because she testified
that “she was very uncomfortable about having to impose
[the death penalty] and having to make that decision.
Tr. Vol. 5 p. 485.
67

convicted of murder.”

Id.

As this court has explained

with regard to other similarly situated African-American
jurors who were struck, these reasons are all raceneutral.
The above summary of the evidence demonstrates that
the State had race-neutral reasons, albeit some quite
subjective and some even weak, for the striking the
African-American jurors that it did.

Nonetheless, the

questions still remains as to whether those reasons are
credible.

This court is most deeply troubled by the fact

that the prosecutor used 12 of his 16 strikes to strike
African-American

jurors.

There

is

also

a

strong

suggestion in the record that the prosecutor may have
targeted African-American jurors for questioning so as to
elicit reasons to use to get rid of them.

There is also

a serious question as to whether the prosecutor’s office
has a history of Batson violations.
If this federal court were the state trial court, with
the opportunity to get a first-hand impression of whether

68

the prosecutor was targeting African-American jurors for
more questioning and with an institutional knowledge of
the overall pattern of jury striking in the prosecutor’s
office and by the prosecutor himself, this court might,
therefore, very well have reached a difference conclusion
on Dallas’s Batson challenge.

However, as the United

States Supreme Court has repeatedly reminded lower federal
courts, they are not the state courts, and, as a result,
are not the factfinders on whether a prosecutor’s raceneutral reasons were, in fact, credible.

Nor are the

federal courts even general courts of error for the state
courts.

Their deference is much greater.

As Justice

Breyer has explained (and lamented) about the application
of Batson in the habeas context:
“The [state] trial judge is best placed
to consider the factors that underlie
credibility: demeanor, context, and
atmosphere. And the trial judge is best
placed to determine whether, in a
borderline
case,
a
prosecutor’s
hesitation or contradiction reflect (a)
deception, or (b) the difficulty of
providing a rational reason for an
instinctive decision. Appellate judges
69

cannot on the basis of a cold record
easily second-guess a trial judge’s
decision about likely motivation. These
circumstances mean that appellate courts
will, and must, grant the trial courts
considerable leeway in applying Batson.
... As the present case illustrates,
considerations of federalism require
federal habeas courts to show yet
further
deference
to
state-court
judgments. See 28 U.S.C. § 2254(d)(2)
(state-court factual determination must
stand unless ‘unreasonable’).”
Rice, 546 U.S. at 343-344 (Breyer, J., concurring).
Faced with race-neutral reasons and constrained by
clear

legal

conclude

precedent,

that

the

this

court,

Alabama

therefore,

courts’

cannot

credibility

determination that the peremptory challenges of black
jurors in this case were not “motivated by intentional
racial discrimination” is a decision that was “contrary
to” or “an unreasonable application of federal law” or a
decision “that was based on an unreasonable determination
of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254 (d)(1) and (2).

70

Dallas further argues that the state trial court erred
because it “seemed to collapse” the first and third prongs
of the Batson analysis “into one” and failed to determine
whether Dallas satisfied his burden of proving purposeful
discrimination.

However, the Eleventh Circuit has held

that denial of a Batson objection by a trial judge is an
“implicit” conclusion that the prosecutor’s race-neutral
explanations were credible and thus, that there was no
purposeful discrimination. See Hightower v. Terry, 459 F.
3d 1067, 1072 n. 9 (11th Cir. 2006) (“The trial court’s
overruling of Hightower’s Batson objection would have
defied logic had the court disbelieved the prosecutor’s
race-neutral explanations.

We may therefore make ‘the

common sense judgment’--in light of defense counsel’s
failure to rebut the prosecutor’s explanations and the
trial

court’s

implicitly

ultimate

found

the

ruling--that

the

prosecutor’s

trial

court

race-neutral

explanations to be credible, thereby completing step three
of the Batson inquiry.”)

In any event, the Alabama Court

71

of Criminal Appeals found that the prosecutor’s reasons
were credible and not based on intentional discrimination.
Dallas, 711 So.2d at 1104-1105.
***
For the above reasons, it is the ORDER, JUDGMENT, and
DECREE of the court that petitioner Donald Dallas is not
entitled to habeas relief on the above-discussed claims to
which the respondents have not asserted a proceduraldefault defense.
address

those

By later separate order, the court will

claims

to

which

the

respondents

asserted a procedural-default defense.
DONE, this the 12th day of January, 2012.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

have