McNabb v. Allen (DEATH PENALTY)

Filing 53

MEMORANDUM OPINION AND ORDER. Signed by Honorable Judge Mark E. Fuller on 3/27/2012. (jg, )

IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
TORREY TWANE MCNABB,
Petitioner,
v.
KIM T. THOMAS, Commissioner,
Alabama Department of Corrections,
Respondent.

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CASE NO. 2:08-cv-683-MEF
[WO – Publish]

MEMORANDUM OPINION AND ORDER
Torrey Twane McNabb is an Alabama death row inmate. On August 20, 2008,
McNabb filed an petition for a writ of habeas corpus (Doc. # 1) in this Court pursuant to 28
U.S.C. § 2254. The petition is eighty-three pages and asserts twenty-six separate grounds for
relief. Respondent Kim T. Thomas (“Respondent” or “the Commissioner”) contends that
some of the claims are procedurally defaulted (Docs. # 36, 41), and that the remainder should
be dismissed on the merits (Doc. # 49). Petitioner has filed responses in opposition to both
of these contentions. (Docs. # 38, 50.) After considering the arguments of counsel, the
twenty-seven volume state court record, and the relevant law, the Court finds that McNabb’s
petition is due to be DISMISSED.

I. BACKGROUND1
On January 7, 1999, after a highly publicized trial which necessitated sequestration
of the jury, McNabb was convicted of two counts of capital murder for his shooting of
Montgomery Police Officer Anderson Gordon. The murder was made capital because it was
committed while Officer Gordon was on duty, Ala. Code § 13A-5-40(a)(5), and because it
was committed while Officer Gordon was in his patrol car, Ala. Code § 13A-5-40(a)(17).
McNabb also was convicted of two counts of attempted murder against Sanford Sharpe, a
bail bondsman, and against Montgomery Police Officer William Perkins. After a sentencing
hearing, the penalty phase of the trial, the jury found one or more statutory aggravating
circumstances and, after weighting the aggravating and mitigating circumstances,
recommended by a vote of 10 to 2 that McNabb be sentenced to death for his capital murder
convictions. The trial court obliged the jury and sentenced McNabb to death, and also
sentenced McNabb to 20 years of imprisonment for each count of attempted murder.
McNabb raised a number of issues on direct appeal. The Alabama Court of Criminal
Appeals affirmed McNabb’s convictions and sentences in a thorough and lengthy opinion.
McNabb I, 887 So. 2d at 989, 993.
The Supreme Court of Alabama granted McNabb’s petition for certiorari to review
whether the trial court erred in its instructions to the jury at the penalty phase of McNabb’s

1

The full factual (and tragic) account of McNabb’s crimes can be found in the Alabama
Court of Criminal Appeals’s opinion on direct appeal. McNabb v. State, 887 So. 2d 929, 939-44
(Ala. Crim. App. 2001) (hereinafter McNabb I).
2

trial. Ex parte McNabb, 887 So. 2d 998, 999 (Ala. 2004) (hereinafter McNabb II). The
Supreme Court of Alabama ruled that the trial court did not err, and affirmed McNabb’s
sentences.
McNabb’s direct appeal concluded when the United States Supreme Court denied
certiorari on November 29, 2004. McNabb v. Alabama, 125 S. Ct. 606 (2004).
On May 24, 2005, McNabb renewed his assault on his conviction and sentence
through collateral review by filing a Rule 32 petition in the Circuit Court of Montgomery
County. See McNabb v. State, 991 So. 2d 313, 316 (Ala. Crim. App. 2007) (hereinafter
McNabb III). All of McNabb’s collateral review arguments were rejected by the Circuit
Court and summarily dismissed for failure to meet the heightened Rule 32 pleading
standards.2 3 See Ala. R. Crim. P. 32.6(b) (stating that “[t]he petition must contain a clear and
specific statement of the grounds upon which relief is sought”). The Circuit Court also made
alternative findings that McNabb’s claims should be dismissed on their merits. The Court
of Criminal Appeals affirmed, mostly adopting the Circuit Court’s findings and reasoning
as its own. Id.

2

The circuit court adopted almost verbatim the State’s proposed order denying
McNabb’s Rule 32 petition. McNabb III, 991 So. 2d at 316.
3

The Circuit Court also summarily dismissed McNabb’s method of execution claim
regarding the then-current lethal injection protocol for McNabb’s failure to raise the claim on
direct appeal, Rule 32.2(a)(5). In a noted departure from the Circuit Court’s ruling, the Court of
Criminal Appeals addressed McNabb’s claim, but still found that summary dismissal was
appropriate under Rule 32.2(b)(6), finding the claim to be “without merit.” McNabb III, 991 So.
2d at 333.
3

The Alabama Supreme Court denied certiorari review of the Court of Criminal
Appeals’s decision in McNabb III, stating – somewhat opaquely – that “[i]n denying the
petition for the writ of certiorari, this Court does not wish to be understood as approving all
the language, reasons, or statements of law in the Court of Criminal Appeals’ opinion.” Ex
parte McNabb, 991 So. 2d 336 (Ala. 2008) (hereinafter McNabb IV).4
Having exhausted state review options, McNabb filed the federal habeas corpus
petition that is now pending before this Court. The following discussion addresses all of the
claims raised in McNabb’s petition for habeas relief, including Respondent’s contention that
some of McNabb’s claims are procedurally defaulted.
II. STANDARDS OF REVIEW
A.

The Procedural-Default Doctrine
“The procedural-default doctrine ‘dictates that a state court’s rejection of a petitioner’s

constitutional claim on state procedural grounds will generally preclude any subsequent
federal habeas review of that claim.’” Frazier v. Bouchard, 661 F.3d 519, 524 (11th Cir.
2011) (quoting Ward v. Hall, 592 F.3d 1144, 1156 (11th Cir. 2010)). The doctrine is
“grounded in concerns of comity and federalism,” Coleman, 501 U.S. at 730, and “was
developed as a means of ensuring that federal habeas petitioners first seek relief in

4

Without wishing to be perceived as passing judgment on the depth of treatment actually
given to McNabb’s Rule 32 petition, the Court does note that the State’s proposed order
summarily dismissing McNabb’s petition became verbatim the Circuit Court of Montgomery
County’s ruling, and then was largely re-adopted by the Court of Criminal Appeals (McNabb III),
and finally was not reviewed, but nevertheless curiously criticized, by the Alabama Supreme
Court in denying certiorari (McNabb IV).
4

accordance with established state procedures,” Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir.
2001).
The procedural-default doctrine applies when: “(1) the state court has plainly stated
that it is basing its decision on the state [procedural] rule; (2) the state rule is ‘adequate,’ i.e.,
not applied in an arbitrary manner; and (3) the state rule is ‘independent,’ i.e., the federal
constitutional question is not intertwined with the state law ruling.” Frazier, 661 F.3d at 525.
Even if the claim is procedurally defaulted, the petitioner may still pursue federal
habeas relief if “either (1) an adequate cause for and actual prejudice arising from the default
[exists], or (2) ‘that a miscarriage of justice, caused by a substantial denial of constitutional
rights, will occur’ if the petitioner’s federal claims are not considered.” Owen v. Sec’y for
Dep’t of Corr., 568 F.3d 894, 908 (11th Cir. 2006) (quoting Lynd v. Terry, 470 F.3d 1308,
1313-14 (11th Cir. 2006)); see also Murray v. Carrier, 477 U.S. 478, 488 (1986).
B.

The Merits of the § 2254 Petition
For claims “adjudicated on the merits in State court proceedings[,]” the deferential

review standards of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) control
this Court’s analysis:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State court proceedings unless
the adjudication of the claim – (1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) resulted in a
decision that was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.
5

28 U.S.C. § 2254(d)(1)-(2); see also Loggins v. Thomas, 654 F.3d 1204, 1208 (11th Cir.
2011). A claim will be considered “adjudicated on the merits” for purposes of § 2254(d)
despite having received scant treatment in state court. See Harrington v. Richter, 131 S. Ct.
770, 784 (2011) (holding that a one-sentence summary denial of a claim in state court is an
adjudication on the merits). For claims reviewed under § 2254(d)(1), the Court “is limited
to the record that was before the state court that adjudicated the claim on the merits.” Cullen
v. Pinholster, 131 S. Ct. 1388, 1398 (2011).
On the other hand, if the federal claim has not been adjudicated on the merits, then a
de novo standard of review applies. See Magwood v. Warden, Ala. Dep’t of Corr., 664 F.3d
1340, 1347 (11th Cir. 2011) (quoting and citing Cone v. Bell, 129 S. Ct. 1769, 1784 (2009)).
III. DISCUSSION
A.

Claims A(1)-A(7) (The Ineffective Assistance of Counsel Claims)
1.

Claims A(2)-A(5) Are Not Procedurally Defaulted

Respondent argues that McNabb has procedurally defaulted on his ineffective
assistance of counsel claims because the Circuit Court of Montgomery County, as affirmed
by the Court of Criminal Appeals, summarily dismissed those claims for failure to meet Ala.
R. Crim. P. 32.2(b)(6)’s heightened pleading requirements. In other words, Respondent
asserts that a summary dismissal for pleading defects constitutes an adequate and
independent state procedural ground, and, thus, McNabb has procedurally defaulted on those
claims.
6

This argument can be rejected forthrightly. First, the Eleventh Circuit has ruled that
“because a dismissal under Rule 32.7(d) for failure to sufficiently plead a claim under Rule
32.6(b) requires an evaluation of the merits of the underlying federal claim, the Court of
Criminal Appeals’s determination was insufficiently ‘independent’ to foreclose federal
habeas review.” Frazier, 661 F.3d at 525; see also Borden v. Allen, 646 F.3d 785, 816 (11th
Cir. 2010) (holding that “an Alabama court’s consideration of the sufficiency of the
pleadings concerning a federal constitutional claim contained in a Rule 32 petition
necessarily entails a determination on the merits of the underlying claim” and stating that “we
cannot construe such a rule to be a state procedural bar that would preclude [federal court]
review”); see also Powell v. Allen, 602 F.3d 1263, 1272-73 (11th Cir. 2010). Second, the
Court of Criminal Appeals and the Circuit Court of Montgomery County made alternative
findings relating to the substance of McNabb’s ineffective assistance claims, which the
Eleventh Circuit has described as “pass[ing] on the merits of the relevant claim” to a
sufficient degree so as to make the claims not procedurally defaulted. Frazier, 661 F.3d at
525-27. Accordingly, these claims will not be treated as procedurally defaulted.
2.

The Merits of the Ineffective Assistance Claims

All seven of the ineffective assistance of counsel claims were “adjudicated on the
merits” in McNabb’s Rule 32 proceedings. See McNabb III, 991 So. 2d at 318-33.
Accordingly, the Court applies the deferential AEDPA review standard found at §
2254(d)(1): whether the State court’s adjudication of these claims “was contrary to, or

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involved an unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States[.]” Id.; see also Terry Williams v. Taylor, 529 U.S.
362, 402-13 (2000) (portion of Justice O’Connor’s opinion for the Court defining “contrary
to” and “unreasonable application”). The Supreme Court has commented on the interplay
of Strickland v. Washington, 466 U.S. 668, 690 (1984), and AEDPA, stating that, in concert,
they create a “‘doubly deferential’ standard . . . .” Cullen v. Pinholster, 131 S. Ct. 1388,
1410-11 (2011) (citing Terry Williams, 529 U.S. at 395-97). “We take a ‘highly deferential’
look at counsel’s performance . . . through the ‘deferential lens of § 2254(d)[.]’” Id. (quoting
Strickland, 466 U.S. at 689 and Knowles v. Mirzayance, 129 S. Ct. 1411, 1419 n.2 (2009)).
Ultimately, McNabb has not shown that the Alabama Court of Criminal Appeals’s rejection
in McNabb III of his ineffective assistance claims involved an unreasonable application of
federal law.
a.

Failure to Present Mitigation Evidence, Investigate Mitigating
Circumstances, Secure Services of Mitigation Expert, Make Effective
Closing Argument (A(1)-A(4))

McNabb bemoans his trial counsel’s alleged shortcomings at the penalty phase of trial.
These alleged shortcomings consist of the failures to: “produce a single witness or introduce
a shred of evidence in the penalty phase of the trial, despite the mountains of evidence
available at their fingertips[,]” (Pet. 23); “conduct an adequate investigation into possible
mitigating circumstances” relating to McNabb’s background, (Pet. 31); obtain the services
of “medical and mental health experts [who] could have explained the consequences of

8

[McNabb’s] childhood instability, deprivation, abandonment, emotional abuse, and substance
abuse[,]” (Pet. 33); and “focus [in closing argument] the attention of the jury on the
individual characteristics of the defendant[,]” (Pet. 36). All of these grounds for relief are
due to be rejected on account of McNabb’s counsel’s reasonably sound strategic decisions
regarding the penalty phase of McNabb’s trial.
The Court begins its Strickland analysis “with the premise that ‘under the
circumstances, the challenged action[s] might be considered sound trial strategy.’”
Pinholster, 131 S. Ct. at 1404 (quoting Strickland, 466 U.S. at 689); see also Yarborough v.
Gentry, 540 U.S. 1, 5 (2003) (“[T]here is a strong presumption that [counsel took certain
actions] for tactical reasons rather than through sheer neglect.” (citing Strickland, 466 U.S.
at 690)).
The “mountains of evidence” that McNabb’s counsel “failed” to investigate or present
relate to McNabb’s extraordinarily troubled childhood. In rejecting McNabb’s identical
ineffective assistance claims, the Alabama Court of Criminal Appeals placed much reliance
on the fact that McNabb had testified concerning his childhood at the guilt phase of the trial.
McNabb III, 991 So. 2d at 329-32. The Court of Criminal Appeals found it “clear from the
record that the very mitigating evidence McNabb contends was not presented to the jury was,
in fact, before the jury as a result of McNabb’s own testimony during the guilt phase of his
trial.” Id. at 331. The Court of Criminal Appeals also rejected McNabb’s failure to
investigate claim because McNabb “has not indicated what additional details could have

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been or should have been investigated [but were not]. . . .” Id. at 329. McNabb’s failure to
investigate claim is due to be dismissed on this ground.5 Second, there is no clearly
established federal law that counsel’s performance is deficient for failing to re-hash at the
penalty phase what has already been offered at the guilt phase.
Moreover, it is apparent that McNabb’s counsel made a strategic choice in not
presenting the violent aspects of McNabb’s childhood.6 That strategy becomes clear after
5

It appears that McNabb’s quarrel is with the fact that his counsel did not present the
whole picture of his childhood at the penalty phase of trial, infra at note 6. By not presenting the
whole picture, McNabb assumes, without any factual support, that counsel did not investigate the
whole picture. Assumptions do not get claims off the ground.
6

The story told by McNabb about his childhood during the guilt phase of the trial (R.
2183, et seq.) is compressed to the following factual account. McNabb spent his early years in
the Gibb’s Village projects in Montgomery and lived with his mother, aunt, grandmother, and
younger siblings and cousins (about 9 or 10 people in a two-bedroom apartment). McNabb’s
mother had been a drug addict “for as long as [he] could remember” and was not around because
she spent a considerable amount of time at crack houses. At fourteen, his grandmother moved to
Florida, and his mother, around the same time, began dating a drug dealer named Keith Chainey,
who moved into the Gibb’s Village apartment when McNabb was 15. Chainey enlisted McNabb
to deal drugs shortly thereafter. McNabb himself began using cocaine at age 15, but was
attempting to provide for his younger siblings. Chainey’s dealing out of the house resulted in the
family’s eviction; McNabb’s mother and several of his siblings left with Chainey, abandoning
McNabb. From that time until his arrest for the charges that led to his death sentence, McNabb
was homeless to a degree. McNabb continued selling drugs to self-provide, and dropped out of
school in the 9th grade. His drug dealing got him in trouble with the juvenile court system and
he was forced to attend “boot camp” for possessing drugs and a .22 caliber pistol. At age 17, he
attempted to get help for his mother by paying for her to go to a rehabilitation clinic. McNabb
moved in with a cousin and tried to get regular work. By 1997, his addiction to cocaine grew
stronger, and he was snorting one gram three times per week. In February of that year, McNabb
was arrested for possession of stolen property (a gun). In March of 1997, he was arrested for
possession of crack cocaine and giving a false name.
The story McNabb now hopes the jury heard at the penalty phase includes the following
additional facts. McNabb’s mother, Cynthia McNabb, herself was an addict from a very young
age, and was also a sexual abuse victim. McNabb did not know his father in his early childhood
because he was incarcerated. By age 5, McNabb’s mother was prostituting herself for drugs and
would only return to the apartment for any period of time when she was in the advanced stages of
10

reviewing the transcript of McNabb’s counsel’s closing argument at the penalty phase of the
trial. McNabb’s trial counsel made the strategic choice to gloss over McNabb’s violent past
and to present McNabb’s violent outburst (the killing of Officer Gordon) as both
uncharacteristic and driven by a cocaine-induced state of paranoia. McNabb’s counsel stated
the following:
And think about what Dr. Holbrook said about the [e]ffects of cocaine. I ask
you to think about that when you consider the verdict in this case. And that is
. . . the paranoia effect [of] cocaine . . . . Then think back to the circumstances
of the crime because something has to explain this crazy crime. Something has
to explain this person who reacts in such a way, because Torrey [McNabb]
doesn’t have a prior record of crimes of violence that have been felonies.
Sure, he was fighting in school. He made a choice to get out of school in the
9th grade . . . . The bottom line is: His stuff is petty fights and things of that
nature. So what triggered this fellow to go up there and pull out a gun, and he
sure had a gun, and shoot this man in such a way?
(R. 2689-90.) In other words, McNabb’s counsel sought to portray the crime as not befitting
of McNabb’s character. If counsel had gone into great detail concerning McNabb’s past, or
had even called any witnesses to testify concerning McNabb’s past (who would be subject

pregnancy. Around the same time, McNabb failed the first grade and had episodes of “acting
out” and getting in fights at school. Loveless Elementary School suspended him multiple times
for his violence. It was documented that he was a slow reader, and he was forced to repeat the
fifth grade. At age 14, McNabb was exposed to his father’s lifestyle, who had since been
released from prison. His father’s life was narcotic and violent. McNabb’s father stabbed his
girlfriend and was stabbed by his girlfriend on separate occasions. To compound the problem,
the only source of stability in McNabb’s life, his grandmother, moved away around the same
time. McNabb was suspended from McIntire Junior High School several times, was repeatedly
involved in fights, and was wearing a bullet-proof vest to school whenever he did attend.
It is important to note that the first paragraph placed a particular emphasis on McNabb’s
early exposure to drugs. The second paragraph – the alleged omissions to the jury – highlights
McNabb’s and his family’s history of violent behavior.
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to cross-examination on that subject), he risked exposing the jury to a contrary idea.
Presenting the evidence McNabb now says should have been presented could have torpedoed
McNabb’s counsel’s drug-centered mitigation case.7
That the strategy ultimately failed does not make counsel’s performance deficient.
Nor is counsel’s performance deficient because McNabb contends that there may have been
a more effective mitigation case. The Constitution guaranteed McNabb reasonably effective
assistance of counsel, not a prophetic counsel who could divine which of two mitigation
cases the jury ultimately would find more attractive.
Because counsel’s performance was not deficient, the denial of McNabb’s Rule 32
petition on these ground did not involve an unreasonable application of clearly established
federal law, and McNabb’s claims labeled A(1)-A(4) are due to be dismissed.
b.

Failure to Procure Necessary Expert Assistance to Effectively Challenge
the State’s Case at Guilt Phase (A(5))

McNabb argues that “[a]lthough defense counsel presented expert evidence by Dr.
John Holbrook that explained cocaine paranoia to the jury, they failed to produce any
evidence linking cocaine paranoia to [McNabb] himself, beyond McNabb’s own testimony.”
(Pet. 37.) This claim is due to be rejected as failing to satisfy the highly deferential review
standards for Strickland claims under § 2254(d)(1).
7

The prosecution of the case saw McNabb’s counsel’s strategy as threatening. Much of
the prosecution’s cross-examination of McNabb sought to elicit his violent traits and to call into
question his cocaine addiction defense. The Court notes that Mr. McNabb himself was not too
helpful to his prime defense on cross-examination, stating essentially that he was not addicted to
cocaine.
12

The Court of Criminal Appeals affirmed the Circuit Court, finding that McNabb’s
claim was insufficiently pleaded under Rule 32.2(b)(6). McNabb III, 991 So. 2d at 322-23
& n.2. Although the merits of this particular claim are not explained in great detail, the
summary dismissal is nevertheless a “merits” ruling, and this Court concludes that the Court
of Criminal Appeals’s ruling was not an unreasonable application of clearly established
federal law.
Put simply, counsel’s performance was not deficient. Dr. Holbrook, a Professor of
Pharmacology at Mercer, whose specialty was psychopharmacology and who wrote his
dissertation on the psychological and physical effects of cocaine, testified immediately after
McNabb. McNabb’s own testimony remained fresh in the jury’s recollection when Dr.
Holbrook took the stand. Counsel’s strategy appears to have been to buttress McNabb’s
testimony regarding his cocaine use and extreme fear during the incident with Dr. Holbrook’s
scientific explanation of that fear.
Dr. Holbrook testified that cocaine causes the brain to produce more dopamine than
usual, resulting in a euphoric effect. He testified as to the behaviors exhibited by people who
have become dependent on cocaine. As to denial, he testified that many heavy users of
cocaine do not feel as though they have a problem. This testimony served to rehabilitate
McNabb’s own denial of his prime defense on cross-examination, supra at note 7. Cocainedependent persons also might use all they have in a single binge episode, testified Dr.
Holbrook. Indeed, McNabb’s story to the jury was that he snorted all of the remaining

13

cocaine in his possession the morning of the killing. Furthermore, Dr. Holbrook explained
the similarities between cocaine use and paranoid schizophrenia. Schizophrenics, like
cocaine users, have an excess amount of dopamine in the brain, which, Dr. Holbrook
testified, may be the reason that cocaine addicts will display behavior identical to paranoid
schizophrenics. As to the paranoia that attaches to a cocaine-dependent person’s interactions
with the world, Dr. Holbrook testified that a cocaine-dependant person experiencing paranoia
will live in an “altered reality,” a perceived world where others are plotting to do them harm.
Finally, McNabb’s counsel asked Dr. Holbrook a detailed hypothetical question clearly based
upon his theory of McNabb’s cocaine use, and whether that hypothetical person would
exhibit paranoid behavior. Dr. Holbrook responded that the hypothetical individual “very,
very, very likely [would] exhibit paranoid behavior.” (R. 2312.) In short, Dr. Holbrook was
a strong witness in advancing McNabb’s cocaine-paranoia defense.
McNabb claims counsel was ineffective for not calling Dr. Stanley Brodsky, who
actually examined McNabb and who allegedly would have been permitted to testify to an
expert opinion on McNabb and cocaine-paranoia. The Court must presume that McNabb’s
counsel chose not to call an expert who had examined McNabb for a reason; perhaps such
an examination would have revealed that McNabb was not quite as cocaine-dependent as
McNabb’s counsel portrayed (which was, in fact, McNabb’s own testimony as well as the
prosecution’s position). See Pinholster, 131 S. Ct. at 1404.

14

Either way, the testimony McNabb now hopes had been given would have added little
to what was already before the jury, and McNabb is not prejudiced by his counsel’s alleged
deficiency in “failing” to call Dr. Brodsky. It should not have been difficult to make the
connection that the hypothetical person posed to Dr. Holbrook was intended to be McNabb.
In short, there is no reasonable probability the outcome of the guilt phase of the trial would
have been different. McNabb’s ineffective assistance claim labeled A(5) is due to be
dismissed.
c.

Failure to Object to Victim Impact Evidence at Guilt Phase (A(6))

McNabb next contends that his counsel’s performance was deficient for failing to
object to improper victim impact testimony from the victim’s mother. (Pet. 38.) The Court
of Criminal Appeals found that the testimony “simply had no effect on the outcome of the
trial.” McNabb III, 991 So. 2d at 325. First, the Court notes that the victim impact testimony
in this case would not have been improper if introduced at the penalty phase. Arguably, the
most damaging impact testimony from Officer Gordon’s mother was that his son would be
deprived of a father. However, this is precisely the sort of victim testimony that the Supreme
Court allowed in Payne v. Tennessee, 501 U.S. 808, 814-15, 826-27 (1991). Thus, the only
objection for its introduction at the guilt phase would have been on relevancy grounds.
McNabb did not suffer prejudice within the meaning of Strickland, because there is no
reasonable probability that, but for the error in failing to object to Officer Gordon’s mother’s
testimony, the result of the proceedings (both the guilt and penalty phases) would have been

15

different. Strickland, 466 U.S. at 694. Given the overwhelming evidence of guilt at the guilt
phase of the trial, the conclusion of the Court of Criminal Appeals that any error did not
“undermine confidence in the outcome” of the trial was not an unreasonable application of
clearly established federal law. Id.; § 2254(d)(1). McNabb’s claim labeled A(6) is due to
be dismissed.
d.

Failure to Object to “Future Dangerousness” Evidence at Guilt and
Penalty Phases of Trial (A(7))

McNabb argues that his trial counsel was deficient for failing to object to the
prosecution’s evidence regarding statements McNabb supposedly made to Michael Dean
Paluch. McNabb argues the admission of the statements constituted improper evidence of
“future dangerousness,” which is not a statutory aggravating factor to be considered at the
penalty phase. The statement of Paluch, who testified in the prosecution’s rebuttal case, was
that McNabb said to him: “I shot that mother fucker [Officer Gordon]. I’d shoot that mother
fucker again. I don’t give a fuck about that man.” (R. 2339.)
The Circuit Court found, and the Court of Criminal Appeals agreed, that “‘this
testimony was offered to show McNabb’s state of mind and to rebut the defense’s theories
that McNabb shot Officer Gordon in self-defense and that McNabb did not have the requisite
intent to kill due to cocaine intoxication.’” McNabb III, 991 So. 2d at 326-27 (quoting the
Circuit Court’s Order). This Court agrees with the Court of Criminal Appeals that counsel’s
performance was not deficient because such an objection finds “no foundation in the record.”
Id. at 327. McNabb’s statements are especially relevant to his main defense of cocaine
16

paranoia: that he did not shoot Officer Gordon with the requisite intent to kill. His statement
to Paluch directly rebuffs that defense. Counsel is not deficient for failing to object to
properly admitted evidence, even if that evidence is damaging.
McNabb argues that the prosecution’s reminder to the jury of that statement at the
penalty phase of the trial also constituted impermissible argument relating to “future
dangerousness,” to which McNabb’s counsel failed to object. It does not appear that the
Court of Criminal Appeals addressed the argument in this particular context, but this Court
has reviewed the record and concludes that the prosecutor’s invocation of Paluch’s testimony
was directed both at McNabb’s own mitigation argument (that the episode was out of
character because of cocaine paranoia) and at McNabb’s arguments in opposition to the three
statutory aggravating factors found to exist by the jury. Those statutory factors all included
mens rea elements (knowingly creating a great risk of death to many persons, that the murder
was committed for the purpose of avoiding or preventing a lawful arrest or effecting an
escape from custody, that the murder was committed [in order] to disrupt or to hinder the
lawful exercise of any governmental function or the enforcement of laws), which McNabb’s
counsel argued against on account of McNabb’s cocaine paranoia. The statement to Paluch
aided the prosecution’s refuting of those arguments.
Furthermore, even if the prosecutor did intend for the jury to use the evidence as a
non-statutory aggravating factor, she only repeated what the jury had already (properly) heard
once, and there is no reasonable probability that the outcome of the trial would have been

17

different had the prosecutor not recalled for the jury Paluch’s testimony at the penalty phase.
McNabb’s claim labeled A(7) is due to be dismissed.
B.

Claims B(1) and B(2) (The Juror Bias Claims)
First, the Court notes that it will summarily dismiss McNabb’s Sixth Amendment and

Fourteenth Amendment impartial jury claim for juror bias as it relates to prospective juror
Barrow, and any other impartial jury claims regarding prospective jurors who did not serve
on the jury. The Supreme Court of the United States has “reject[ed] the notion that the loss
of a peremptory challenge constitutes a violation of the constitutional right to an impartial
jury.” Ross v. Oklahoma, 487 U.S. 81, 88 (1988); see also Feltrop v. Delo, 46 F.3d 766, 77374 (8th Cir. 1995). Accordingly, the Court need not address whether these claims are
procedurally defaulted. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas
corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust
the remedies available in the courts of the State.”); see also Loggins, 654 F.3d at 1215
(collecting cases).
However, McNabb also asserts that the trial court’s repeated refusals to remove
prospective jurors for cause based upon (1) their voir dire responses indicating a willingness
to give “automatic” application of the death penalty and/or (2) exposure to and prejudice by
pretrial publicity violated McNabb’s Fourteenth Amendment due process rights by arbitrarily
depriving him of the full complement of peremptory strikes allowed under Alabama law.
Ross, 487 U.S. at 88-90 (stating that “the ‘right’ to peremptory challenges is ‘denied or

18

impaired’ only if the defendant does not receive that which state law provides”). In other
words, McNabb contends that he was forced to use a substantial number of his peremptory
strikes on jurors who should have been stricken for cause for one of the two reasons, which
“denied or impaired” his right under Alabama law to peremptory strikes. Ross, 487 U.S. at
88-90; see also Swain v. Alabama, 380 U.S. 202, 219 (1965), overruled on other grounds by
Batson v. Kentucky, 476 U.S. 79 (1986).
1.

Pretrial Publicity Claims

a.

Fourteenth Amendment Due Process Deprivation of Peremptory Strikes
Claim

McNabb used one of these peremptory strikes on prospective juror Judith Barrow.
Respondent argues that this claim – but only as it relates to pretrial publicity – is procedurally
defaulted because McNabb did not raise it on direct appeal. McNabb concedes that “[j]uror
Barrow was not one of the jurors listed in [the pretrial publicity] section of the [appellate]
brief.” (Doc. # 38, at 40.) McNabb’s Fourteenth Amendment due process claim based upon
the denial of a state-created right to peremptory strikes does not rise and fall, necessarily, on
prospective juror Barrow. However, a finding that the trial court should have struck
prospective juror Barrow for cause (based upon prejudice by pretrial publicity) is a necessary
component of the claim, and McNabb’s failure to raise the issue as it relates to pretrial
publicity on direct appeal procedurally defaults consideration of Barrow as part of that claim.
Moreover, assuming that McNabb could show cause for the default, McNabb cannot
show actual prejudice. The “actual prejudice” prong of the “cause and prejudice” exception
19

to procedural default requires that “the error worked to [McNabb’s] actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions.” Ward v.
Hall, 592 F.3d 1144, 1178 (11th Cir. 2010). In determining actual prejudice, the Court must
pose to itself the following question: “‘Did the intrusion affect the jury’s deliberations and
thereby its verdict?’” Id. (quoting United States v. Olano, 507 U.S. 725, 739 (1993)). Even
assuming that Ms. Barrow should have been struck from the jury for cause on account of
pretrial publicity, McNabb did use a peremptory strike to remove Ms. Barrow from the jury.
That fact by itself precludes a finding of actual prejudice.
Moreover, McNabb’s Fourteenth Amendment due process claim for deprivation of
peremptory strikes was doomed to fail with or without Ms. Barrow. Including Ms. Barrow,
McNabb’s petition reveals that he was forced to use only two peremptory strikes on jurors
he contends should have been excused for cause on account of pretrial publicity. McNabb
was afforded a total of fifteen strikes. (R. 1677.) Such a small percentage (approximately
13%) does not amount to a deprivation of state-created rights within the ambit of the
Fourteenth Amendment’s due process clause. Ross, 487 U.S. at 88-90. The claim (with or
without Ms. Barrow) is due to be dismissed.
b.

Ms. Brett

Ms. Brett did serve on the jury, so McNabb’s pretrial publicity claim as to her is a
Sixth and Fourteenth Amendment claim to a fair and impartial jury. McNabb raised this
exact claim on direct appeal, and it was rejected by the Court of Criminal Appeals. McNabb

20

I, 887 So. 2d at 963-66. As with Strickland claims reviewed under § 2254(d)(1), this is
another area of the law where double deference is called for. A trial court’s determination
regarding juror bias is a matter of fact, and is to be reviewed as such by a federal court on
habeas review. Wainwright v. Witt, 469 U.S. 412, 429-30 (1985); Hightower v. Schofield,
365 F.3d 1008, 1037 (11th Cir. 2004), vacated on other grounds by 125 S. Ct. 2929 (2005);
see also Newbury v. Thaler, 437 F. App’x 290, 298 (5th Cir. 2011) (citing § 2254(e)(1)).
The Eleventh Circuit has stated that “[g]iven the difficulty of reviewing such
equivocal answers from the cold record, years after they were uttered, it is obvious why we
afford great deference to trial judge determinations of juror bias.” Hightower, 365 F.3d at
1040; see also Newbury, 437 F. App’x at 298; Colvin v. Sheets, 598 F.3d 242, 255 (6th Cir.
2010).
Ms. Brett’s voir dire responses, which are reproduced in McNabb I, 887 So. 2d at 96365, appear to be quite hopelessly contradictory on paper. Ms. Brett commences her answers
by stating rather forcefully that she believes, based upon the news reports, that McNabb is
guilty. (R. 1306-08.) She ends her voir dire by rehabilitating herself and stating that she will
consider only the evidence and the law.8 Based upon his denial of McNabb’s challenge for
cause, the trial judge necessarily afforded more weight to Ms. Brett’s later responses than her
earlier ones. A number of reasons which are not preserved in the transcript may underlie that
decision. Perhaps Ms. Brett was confused. Perhaps she genuinely changed her mind. Owing

8

McNabb’s counsel did not question Ms. Brett on voir dire.
21

to the special deference the trial judge is afforded in evaluating potential jurors for bias,
combined with the deferential review under § 2254 of this factual question, the Court cannot
conclude that juror Brett was in fact biased based upon pretrial publicity. Accordingly,
McNabb’s Sixth and Fourteenth Amendment fair and impartial jury claim labeled B(2) is due
to be dismissed in its entirety.
2.

“Automatic Death Penalty” Juror Claims

a.

Procedural Default Regarding Juror Bailey

Juror Bailey served on the petit jury in McNabb’s case. During jury selection,
McNabb challenged Bailey for cause, contending that her voir dire responses indicated that
she was an “automatic death penalty” juror.9 (Doc. # 1, at ¶ 123.) McNabb argues that
Bailey’s seating on the jury violated his Sixth, Eighth, and Fourteenth Amendment right to
a fair and impartial jury in a capital case. See Ross, 487 U.S. at 85 (“Had [the biased juror]
sat on the jury that ultimately sentenced petitioner to death, and had petitioner properly
preserved his right to challenge the trial court’s failure to remove [the biased juror] for cause,
the sentence would have to be overturned.”); Morgan, 504 U.S. at 729 (“If even one such
juror is empaneled and the death sentence is imposed, the State is disentitled to execute the
sentence.”); see also United States v. Martinez-Salazar, 528 U.S. 304, 316 (2000).

9

In capital cases, jurors must be death-qualified. Prospective jurors are screened through
voir dire to ensure that none has views in opposition to or in favor of the death penalty so strong
that they would prevent our substantially impair the prospective juror’s performance at the
sentencing phase. Wainwright v. Witt, 469 U.S. 412, 423-24 (1985). A juror who could never
vote for the death penalty or a juror who would automatically vote for the death penalty is to be
removed for cause. Morgan v. Illinois, 504 U.S. 719, 728-29 (1992).
22

Respondent argues that the claim is procedurally defaulted because McNabb did not
raise the issue regarding juror Bailey on direct appeal. McNabb’s appellate counsel did argue
before the Alabama Court of Criminal Appeals on direct appeal that a number of jurors
should have been struck for cause as “automatic death penalty” jurors. However, McNabb
concedes that juror Bailey did not make the list on direct appeal. (Doc. # 38, at 36-37.)
Instead, McNabb argues that this is an issue of fair presentation; because he argued on appeal
that some jurors should have been stricken for cause for this reason, McNabb is not
procedurally defaulted from now arguing the same claim as to juror Bailey. This contention
is meritless. The decision as to whether a particular juror should be struck for cause is a
uniquely individualized inquiry. See Hightower, 365 F.3d at 1037 (finding that petitioner
procedurally defaulted “automatic death penalty” juror claims as they related to specific
jurors because “[such] claims, dependant as they are upon individual predispositions, are
juror-specific”). The Court of Criminal Appeals’s separate and thorough treatment in
McNabb I of each “automatic death penalty” juror claim demonstrates as much. McNabb I,
887 So. 2d at 944-61. McNabb did not present the argument as it relates to juror Bailey on
direct appeal, and the claim is procedurally defaulted.
Moreover, assuming that McNabb could satisfy the “cause and prejudice” exception
to procedural default, his claim as to juror Bailey would fail on the merits. Ms. Bailey’s
death-qualification voir dire commenced with her responding positively to the trial judge’s
questions, stating that she would consider the aggravating and mitigating circumstances and

23

would be willing and able to recommend both a death sentence and a sentence of life without
parole after weighing the circumstances. Upon questioning by McNabb’s counsel, the
following exchange occurred:
[Ms. Bailey]: For example, a parent who kills the person who molested their
child, that’s justifiable in my opinion, and I wouldn’t vote for the death penalty
under that circumstance. But if a person kills someone for no justifiable
reason, to me, that warrants the death penalty. If their life was in danger or
they were in fear and their life is in danger, I wouldn’t vote for [the death
penalty].
...
[McNabb’s Counsel]: I just want to know what you thought about the
sentence of life without parole for an intentional killing.
...
[Ms. Bailey]: If it was intentional, I would not feel comfortable voting for life
without parole.
[McNabb’s Counsel]: Why would that be?
[Ms. Bailey]: Because if it was intentional, that means they planned on doing
it, so I couldn’t in all good conscience. . . .
...
[The Court]: Could you follow the instructions of the Court?
[Ms. Bailey]: To the best of my ability, yes.
[The Court]: If the jury should find the Defendant and if you are on this jury
and find the Defendant guilty of capital murder and the mitigating
circumstances outweigh the aggravating circumstances and the jury finds that
the appropriate sentence to recommend would be life in the penitentiary
without the possibility of parole based on the facts brought before you in the
courtroom, could you join the other jurors and recommend that?
...
[Ms. Bailey]: Yes, to the best of my ability.
(R. 1463-67 (emphasis added).)
McNabb argues that juror Bailey “consistently indicated that she would automatically
vote for death if the killing was intentional.” (Pet. 13.) According to McNabb, “[t]he only

24

time she indicated any possibility that she would consider life without parole [was] when the
judge suggested the rest of the jury would recommend life without parole.” (Pet. 13-14.)
To begin, the Court reiterates the discussion above regarding the “great deference,”
Hightower, 365 F.3d at 1040, or the “special deference,” Newbury, 437 F. App’x at 298,
which is owed to the trial judge’s factual determination of juror bias challenges.
From the cold record, it appears that Ms. Bailey understood “intentional killing” to
mean something other than McNabb’s counsel understood at the time. She stated that “if it
was intentional, that means they planned on doing it . . . .” (R. 1465.) Perhaps Ms. Bailey
was confusing premeditated with intentional. This confusion lessens the gravity of some of
her responses. Instead of stating that she would impose the death sentence in every case
(because every capital murder is intentional), she is more likely stating that she considers
premeditation an aggravating circumstance.10 This conclusion is further supported by Ms.
Bailey’s own concession toward the end of the questioning where McNabb’s counsel asked
her: “Do you understand that capital murder is only an intentional killing? Do you
understand that?” (R. 1468.) Ms. Bailey responded, “Well, I do now.” (R. 1468.)

10

Of course, premeditation is not listed as a statutory aggravating circumstance.
However, the Alabama legislature has recognized as statutory aggravating circumstances
situations where premeditation often occurs: “[t]he defendant was previously convicted of
another capital offense or a felony involving the use or threat of violence to the person[,]” Ala.
Code § 13A-5-49(2); “[t]he capital offense was committed for pecuniary gain[,]” § 13A-5-49(6);
“[t]he capital offense was especially heinous, atrocious, or cruel compared to other capital
offenses[,]” § 13A-5-49(8); “[t]he defendant intentionally caused the death of two or more
persons by one act or pursuant to one scheme or course of conduct[,]” §13A-5-49(9); and “[t]he
capital offense was one of a series of intentional killings committed by the defendant[,]” § 13A5-49(10).
25

Second, as italicized above in the reproduced exchange, Ms. Bailey stated that she
would consider the following as mitigating: “If their life was in danger or they were in fear
and their life is in danger, I wouldn’t vote for [the death penalty].” (R. 1463.) This was
precisely McNabb’s defense at the guilt and penalty phases of the trial. He considered his
life to be in danger on account of his cocaine-paranoia and the fact that an unfamiliar person
(the bail bondsman) appeared next to his car with a gun pointed at him.
Finally, Ms. Bailey rehabilitated herself by stating that she could follow the court’s
instructions and that she could impose a sentence of life without parole after weighing the
aggravating and mitigating circumstances. (R. 1467-68.) McNabb’s reprobation of the
specific wording of the trial judge’s questions does not fundamentally alter the nature of the
question or of Ms. Bailey’s response. The trial judge clearly afforded greater weight to Ms.
Bailey’s positive responses, and that factual decision is entitled to double deference on
habeas review.
Accordingly, assuming the Court did arrive at the merits of this procedurally-defaulted
claim, it is still due to be dismissed.
b.

Fourteenth Amendment Due Process Deprivation of Peremptory Strikes
Claim

McNabb used five of his peremptory strikes to remove prospective jurors McNeal,
Roten, Skipper, Wood, and Barrow, all of whom McNabb challenged for cause as “automatic
death penalty” jurors.

26

First, for McNabb’s claim to go forward, the Court must actually determine that these
jurors were “automatic death penalty” jurors, as explained above. Arriving at this conclusion
requires the Court to confront both the “great deference” afforded to trial judges on these
matters as well as the presumption of correctness regarding the Alabama Court of Criminal
Appeals’s separate factual conclusions as to each of these prospective jurors in McNabb I,
887 So. 2d at 948-61. § 2254(e)(1); see also Hightower, 365 F.3d at 1040.
After reviewing the record, it is apparent that McNabb cannot overcome these hurdles.
Furthermore, assuming that the Court determined that any or (even less likely) that all of
these jurors were, indeed, automatic death penalty jurors, McNabb’s use of five peremptory
strikes out of his total of fifteen (approximately 33%), does not rise to the level of a
Fourteenth Amendment due process violation for deprivation of his peremptory strikes.
Claim B(1) is due to be dismissed in its entirety.
C.

Admission of Hearsay Evidence at Guilt Phase Regarding McNabb’s Familiarity
with Officer Gordon
McNabb’s next claim is that the prosecution’s introduction into evidence of a booking

report from the Montgomery County Detention Facility (the “booking report”), a log from
the Montgomery Police Department (the “log”), and an arrest warrant and accompanying
affidavit (the “arrest warrant”), violated McNabb’s Sixth and Fourteenth Amendment Rights
to confrontation and cross-examination. (Pet. 45.) The Court of Criminal Appeals rejected
this claim on direct appeal in McNabb I, 887 So. 2d at 966-71. Accordingly, the Court views
this claim through the deferential lens of § 2254(d).
27

The first observation the Court makes is that the last reasoned State court opinion to
have addressed McNabb’s claims pre-dated the Supreme Court’s decision in Crawford v.
Washington, 541 U.S. 36 (2004). Accordingly, the Court of Criminal Appeals applied the
Confrontation Clause analysis of Ohio v. Roberts, 448 U.S. 56 (1980). In reviewing the
Court of Criminal Appeals’s decision under § 2254(d)(1), this Court must evaluate whether
the “decision . . . involved an unreasonable application of clearly established federal law, as
determined by the Supreme Court of the United States.” Id. This Court understands this to
mean that the Court must evaluate whether the Court of Criminal Appeals’s decision
involved an unreasonable application of the Supreme Court’s Confrontation Clause
jurisprudence that existed prior to Crawford. Law that does not yet exist cannot be clearly
established. This is all despite the fact that Crawford was handed down prior to McNabb’s
conviction becoming final.11
Turning to the actual claim, the second observation the Court makes is that there is
no connection between the hearsay and McNabb’s alleged constitutional harm. The
complainant made hearsay statements to Officer Gordon, which were reproduced in Officer
Gordon’s affidavit, which gave probable cause for the arrest warrant to issue. The hearsay
statements related to the substantive charges against McNabb (receipt of stolen property), not
to the existence or degree of interaction between Officer Gordon and McNabb during the

11

Crawford was handed down on March 8, 2004. McNabb’s conviction became final
when the United States Supreme Court denied certiorari on November 29, 2004. McNabb v.
Alabama, 125 S. Ct. 606 (2004).
28

particular incident. See McNabb I, 887 So. 2d at 967 & n.2. In other words, cross-examining
the hearsay declarant would have been utterly useless in refuting the State’s position that
McNabb knew Officer Gordon. Realistically, the only two witnesses McNabb could have
cross-examined regarding his interactions with Officer Gordon during that incident were
himself and Officer Gordon, whom McNabb had admitted to killing (just not intentionally)
prior to the introduction of the documents. See, e.g., United States v. Miller, 116 F.3d 641,
667-68 (2d Cir. 1997) (“The right to confront hostile witnesses may be constructively waived
by a defendant’s conduct.”).
Third, the Court of Criminal Appeals ruled that the damaging impeachment
information contained in the booking report, log, and arrest warrant – Officer Gordon’s
name, which revealed, perhaps, that McNabb and Officer Gordon were not total strangers,
as McNabb had testified on cross-examination – constituted peripheral matters. Id. at 969
(“A review of the record in this case reveals that the documents, showing that McNabb had
contact with Officer Gordon before the murder, were peripheral.”). Analyzed under the Ohio
v. Roberts framework, the Court of Criminal Appeals held that “the documents were neither
‘crucial’ to the State’s case nor ‘devastating’ to McNabb’s defense.” McNabb I, 887 So. 2d
at 969. The Court of Appeals reasoning was thus:
McNabb’s main defense was that he had ingested so much cocaine on the
morning of the crimes that he was incapable of forming the intent to kill.
Whether or not McNabb knew Officer Gordon would not have affected
McNabb’s mental capabilities if, in fact, he had ingested so much cocaine that
he was unable to form the intent to kill. At most, the documents suggested to

29

the jury that McNabb had a motive for killing Officer Gordon and only in that
manner did they peripherally touch on McNabb’s intent.
Id. The Court of Criminal Appeals’s finding was neither contrary to nor an unreasonable
application of then-clearly established federal law. § 2254(d).
The Court of Criminal Appeals also found that the documents were reliable under the
Ohio v. Roberts framework. The court first noted that the booking report and the log were
both admissible under “firmly rooted hearsay exceptions and, therefore, were inherently
reliable.” McNabb I, 887 So. 2d at 969 (citing Ala R. Evid. 803(6) & (8)). Both documents
were also properly authenticated, according to the Court of Criminal Appeals. Id. (citing Ala.
R. Evid. 901(a) & 902(4)). This Court finds that the Alabama Court of Criminal Appeals
reliability analysis of the booking report and log under Ohio v. Roberts was not unreasonable.
Finally, the Court of Criminal Appeals found that the arrest warrant and affidavit were
not properly authenticated and, thus, not properly admitted. McNabb I, 887 So. 2d at 971.
However, the court found the information as it related to Officer Gordon both to be: (1)
reliable, because the booking report and log (which were properly admitted) also revealed
that Officer Gordon had contact with McNabb; and (2) neither “crucial” to the prosecution’s
case nor “devastating” to McNabb’s defense because the arrest warrant and affidavit added
nothing new to what was already properly in evidence regarding McNabb’s familiarity with

30

Officer Gordon.

This decision was not an unreasonable application of then-clearly

established federal law. McNabb’s claim labeled C is due to be dismissed.12
D.

Admission of a Mug Shot of McNabb at the Guilt Phase
McNabb claims that the introduction of a mug shot at the guilt phase violated

McNabb’s constitutional rights. The Court of Criminal Appeals addressed McNabb’s claim
on direct appeal for plain error because McNabb did not object at trial, and found “no error,
plain or otherwise, in the admission of the mug shot.” McNabb I, 887 So. 2d at 973. The
Court of Criminal Appeals also found harmless error: “[t]here was ample evidence before
the jury that McNabb had a prior criminal history – including McNabb’s own testimony
regarding his numerous prior encounters with law enforcement. Therefore, the admission
of the mugshot, even if error, was harmless beyond a reasonable doubt.” Id. (citing Chapman
v. California, 386 U.S. 18 (1967)).
Assuming that McNabb can persuade the Court that the Court of Criminal Appeals’s
decision that the admission of the mug shot was not error involved an unreasonable
application of clearly established federal law, McNabb cannot persuade the Court that the
Court of Appeals’s harmless error analysis likewise was unreasonable. The jury was already
aware of McNabb’s previous encounters with law enforcement. In fact, the factual predicate
for the murder of Officer Gordon was that McNabb had failed to appear for a hearing on

12

Even if the Court were to apply Crawford to McNabb’s claims, the Court would reach
the same outcome. Officer Gordon’s name on the documents is not “testimonial” under
Crawford and its progeny.
31

another criminal charge, and his primary defense was that he had been on a cocaine binge.
The jury would not have been shocked to have learned that McNabb had prior encounters
with law enforcement. In light of this and on account of the fact that the only real issue in
the case concerned McNabb’s intent, the admission of the mugshot did not have substantial
effect on the outcome of the case. United States v. Romero-Rojo, 67 F. App’x 570, 573 (10th
Cir. 2003); Smith v. Withrow, No. 97-2319, 1999 WL 503473, at *4 (6th Cir. July 6, 1999)
(unpublished table decision). McNabb’s claim labeled D is due to be dismissed.
E.

Prosecution’s “Misrepresentation” to the Jury at the Penalty Phase that the
Guilty Verdict Had Established Two Aggravating Circumstances
McNabb next argues that the prosecution’s opening argument to the jury at the penalty

phase of the trial deprived McNabb of a fair and reliable sentencing recommendation, in
contravention of the Fifth, Eight, and Fourteenth Amendments. The prosecutor’s specific
statement with which McNabb takes issue is:
Your verdict in this case, I will submit to you and I will argue to you, that you
have found those two aggravating circumstances beyond a reasonable doubt,
because by your verdict, you have found this defendant guilty of the capital
murder offense of the murder of a [police] officer while in the performance of
his duty.
(R. 2618 (emphasis added).)
The Court of Criminal Appeals rejected this claim, calling McNabb’s interpretation
– that the prosecutor instructed the jury that they had already found two aggravating
circumstances – “strained.” McNabb I, 887 So. 2d at 988. The Court of Criminal Appeals
focused on the fact that the prosecutor “did not tell the jury it had no option but to find the
32

existence of the two aggravating circumstances based on its guilt-phase verdicts.” Id.
Instead, the Court of Criminal Appeals focused on the “I will submit to you and I will argue
to you” language the prosecutor used. The jury was free to accept or reject the prosecutor’s
“submission” and “argument.” The statement was not improper. Moreover, the Court of
Criminal Appeals’s decision was not contrary to nor did it involve an unreasonable
application of clearly established federal law. § 2254(d). McNabb’s claim labeled E is due
to be dismissed.
F.

The Trial Court’s Instruction at the Guilt Phase that the Jury Could Infer Intent
to Kill From the Use of a Deadly Weapon
McNabb’s next claim is that the trial court violated McNabb’s constitutional rights

to due process and to a fair trial by instructing the jury that the intent to kill might be inferred
from the use of a deadly weapon. The specific instruction was: “‘[T]he intent to kill may
be inferred from the use of a deadly weapon and the character of the assault.’” McNabb I,
887 So. 2d at 978 (quoting the trial court’s oral charge to the jury) (emphasis added).
The Court of Criminal Appeals found that the instruction “created a permissive
inference,” id. at 979, and rejected McNabb’s claim. See also Francis v. Franklin, 471 U.S.
307, 314 (1985) (“A permissive inference suggests to the jury a possible conclusion to be
drawn if the State proves predicate facts, but does not require the jury to draw that
conclusion.”); Applewhite v. Secretary, DOC, 373 F. App’x 969, 972 (11th Cir. 2010) (“A
permissive inference does not violate the Due Process Clause as long as the suggested

33

conclusion ‘is . . . one that reason and common sense justify in light of the proven facts
before the jury.’” (quoting Francis, 471 U.S. at 314-15)).
Considering the specific language challenged, Francis, 471 U.S. at 315, which
included the use of the word “may,” the Court concludes that the instruction created a
permissive inference and that the Court of Criminal Appeals’s decision was not an
unreasonable application of clearly established federal law. Furthermore, the inference the
jury was entitled to make is not irrational or illogical, and was permitted by the evidence at
trial. Applewhite, 373 F. App’x at 973 (citing Cnty. Ct. of Ulster Cnty., N.Y. v. Allen, 442
U.S. 140, 163-67 (1979)). McNabb’s claim labeled F is due to be dismissed.
G.

Instruction on Lesser Included Offense of Reckless Endangerment for Attempted
Murder Charges
McNabb contends that the trial court violated his due process rights when it refused

to instruct the jury on the lesser included charges of reckless endangerment in lieu of
attempted murder. (Pet. 53); Beck v. Alabama, 447 U.S. 625 (1980) (holding that due
process requires that a lesser included offense instruction be given when the evidence
warrants such an instruction). The Court of Criminal Appeals agreed that the trial court erred
by refusing McNabb’s requested lesser included offense instruction, but nevertheless found
that the error was harmless. McNabb I, 887 So. 2d at 976 (citing Chapman v. California, 386
U.S. 18 (1967)).
McNabb’s basis for requesting the reckless endangerment charge was the same as his
defense to the capital murder charges; he was so intoxicated that he was unable to form a
34

specific intent to kill. The Court of Criminal Appeals reasoned that because the jury rejected
McNabb’s prime defense to the capital murder charges, it necessarily would have rejected
McNabb’s reckless endangerment argument as it related to the attempted murder charges.
McNabb I, 887 So. 2d at 977 (“By finding McNabb guilty of capital murder with respect to
the murder of Officer Gordon, the jury rejected McNabb’s claim that he was so intoxicated
that he was unable to form the intent to kill . . . . By virtue of the jury’s verdict of capital
murder and its express rejection of McNabb’s defense of intoxication, we conclude that an
instruction on reckless endangerment . . ., although proper, would not have affected the
outcome of th[e] case . . . .” (internal citation and quotation marks omitted)).
This Court likewise concludes that any constitutional error in the failure to give the
lesser included offense instruction was harmless. “[I]f the defendant had counsel and was
tried by an impartial adjudicator, there is a strong presumption that any other [constitutional]
errors that may have occurred are subject to harmless-error analysis.” Neder v. United States,
527 U.S. 1, 8 (1999); United States v. Rodriguez, 406 U.S. 1261, 1269 (11th Cir. 2005) (en
banc); see also Hopper v. Evans, 456 U.S. 605 (1982) (applying harmless error to
unconstitutional statute forbidding trial court from giving jury instruction on lesser included
offense in a capital case). The jury’s verdict on the charges of capital murder logically
foreclose any possibility that the jury would have found in McNabb’s favor by convicting
him of the lesser included reckless endangerment crime in place of the non-capital attempted
murder charges. McNabb’s claim labeled G is due to be dismissed.

35

H.

The Jury Instructions on the Attempted Murder Charges
McNabb argues that the attempted murder supplemental jury instruction violated his

due process rights because it “fail[ed] to require the jury to find [McNabb] guilty of all [of
the] elements of [attempted murder] beyond a reasonable doubt . . . .” (Pet. 55.) McNabb
argues that the specific intent instruction was deficient because the trial court failed to limit
the jury’s consideration of the attempted murder charges to the persons McNabbb allegedly
had the specific intent to kill.
The Court of Criminal Appeals rejected the claim. McNabb I, 887 So. 2d at 979-81.
The Court of Criminal Appeals noted that the trial judge had instructed the jury a total of
three times during its initial set of charges on the attempted murder charges. All three times
the trial court specifically identified the victims of the attempted murder charges. Id. at 981.
The Court of Criminal Appeals further highlighted the fact that the trial court instructed the
jury on specific intent during its supplemental charge, even though it did not identify the
victims by name. Id. Furthermore, this Court notes that at the beginning of the trial court’s
supplemental instruction, it reminded the jury of its obligation to “‘remember the complete
instruction [from the initial charges].’” McNabb I, 887 So. 2d at 980 (quoting trial court’s
supplemental instruction).
McNabb has offered nothing that would warrant disturbing the Court of Criminal
Appeals’s decision on habeas review, and his claim labeled H is due to be dismissed.

36

I.

Failure to Instruct the Jury at Penalty Phase of Cocaine Impairment as NonStatutory Mitigating Circumstance
McNabb argues that he was denied a proper sentencing procedure in violation of the

Eight and Fourteenth Amendments when the trial court declined to specifically instruct the
jury on McNabb’s mitigating circumstance argument regarding cocaine intoxication. (Pet.
57-58.) Relying on Alabama law, the Court of Criminal Appeals rejected McNabb’s claim.
McNabb’s claim also fails when presented as a federal constitutional claim.
McNabb re-brands his claim under Lockett v. Ohio, 438 U.S. 586 (1978), arguing that
the trial court’s refusal to instruct the jury on cocaine intoxication as a mitigating
circumstance actually precluded the jury from considering cocaine intoxication as a
mitigating circumstance. The illogicality of this leap is betrayed by the trial court’s
instructions on mitigating circumstances, which included the following statement: “‘In
addition to the mitigating circumstances previously specified, mitigating circumstances shall
include any aspect of a defendant’s character, or record, and any other circumstances of the
offense that the defendant offers as a basis for a sentence of life imprisonment without parole
instead of death.’” McNabb I, 887 So. 2d at 986 (quoting trial court’s penalty phase
instructions). That instruction clearly permitted the jury to consider McNabb’s cocaine
intoxication as a mitigating circumstance, and his claim under Lockett fails. McNabb’s claim
labeled I is due to be dismissed.

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J.

Alabama’s “Lack of a Standard” for Determining Whether Aggravating
Circumstances Outweigh Mitigating Circumstances
McNabb’s next claim is that Alabama’s capital sentencing scheme is unconstitutional

because it does not provide a measure or standard by which aggravating circumstances must
outweigh mitigating circumstances in order to justify a recommendation of or imposition of
the death penalty. (Pet. 59 (citing Godfrey v. Georgia, 446 U.S. 420, 427 (1980) (“The
penalty of death may not be imposed under sentencing procedures that create a substantial
risk that the punishment will be inflicted in an arbitrary and capricious nature.”).) McNabb
contends that the Alabama procedure’s allegedly inadequate guidance violates his Fifth and
Fourteenth Amendment rights to due process.
The Court of Criminal Appeals rejected this claim. McNabb I, 887 So. 2d at 983. The
Supreme Court of Alabama granted certiorari and affirmed. McNabb II, 887 So. 2d at 100204. The Court of Criminal Appeals relied upon Franklin v. Lynaugh, wherein the United
States Supreme Court rejected the notion that a specific method for balancing mitigating and
aggravating factors in a capital sentencing proceeding is constitutionally required. 487 U.S.
164, 179 (1988); see also United States v. Chandler, 996 F.2d 1073, 1901-92 (11th Cir.
1993); Ford v. Strickland, 696 F.2d 804, 817-18 (11th Cir. 1983) (en banc). Alabama’s
procedure, as set forth in § 13A-5-46, provides an appropriate method for balancing
aggravating and mitigating circumstances.

See McNabb II, 887 So. 2d at 1002-04.

McNabb’s claim labeled J is due to be dismissed.

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K.

Method of Execution Claim
McNabb challenges Alabama’s former lethal injection protocol under the Eighth and

Fourteenth Amendments. Because Alabama’s lethal injection protocol has changed since
McNabb’s habeas petition was filed, this claim has been mooted and is due to be dismissed.
Futhermore, the claim is more properly brought as a § 1983 action. See Tompkins v. Sec’y,
Dep’t of Corr., 557 F.3d 1257, 1261 (11th Cir. 2009) (“A § 1983 lawsuit, not a habeas
proceeding, is the proper way to challenge lethal injection procedures.” (citing Hill v.
McDonough, 547 U.S. 573, 579-83 (2006))). McNabb’s claim labeled K is due to be
dismissed.
L.

Refusal of State Courts to Grant McNabb a Rule 32 Hearing
McNabb argues that the refusal of the Alabama courts to grant McNabb an evidentiary

hearing for his Rule 32 petition violated his constitutional rights to due process and equal
protection. It is unclear, however, what relief McNabb requests, other than a hearing in this
Court. Such a hearing would be a fruitless exercise. This Court can and has – in the
preceding and subsequent pages of this opinion – readily determined from the parties’
submissions, including the voluminous state court record, that McNabb was not entitled to
relief on any of his claims alleged in the Rule 32 petition. Rule 8(a), § 2254 Cases (“If the
petition is not dismissed, the judge must review the answer, any transcripts or records of
state-court proceedings, and any materials submitted under Rule 7 to determine whether an

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evidentiary hearing is warranted.”). No evidentiary hearing is warranted and McNabb’s
claim labeled L is due to be dismissed.
M.

McNabb’s Contentions that Trial Court’s Death Sentence Violated the Sixth
Amendment
1.

Record Does Not Reliably Establish Penalty Phase Aggravating
Circumstances, in Violation of Ring v. Arizona, or That Any One Was
Found Unanimously

McNabb’s first argument is that the jury never explicitly found any of the three
statutory aggravating circumstances beyond a reasonable doubt, and that this omission
violated Ring v. Arizona, 536 U.S. 583 (2002).
Examining this claim requires an understanding of Alabama’s hybrid capital
sentencing scheme. After a defendant is adjudicated guilty of capital murder, the jury
(usually the same jury) reconvenes for the sentencing portion of the trial: the penalty phase.
The jury’s function is to render an “advisory verdict” to the trial court. Ala. Code § 13A-546(d) (“The jury shall then retire to deliberate concerning the advisory verdict it is to
return.”). As part of the advisory verdict, the jury must consider the statutory aggravating
circumstances offered by the prosecution as well as any mitigating circumstances offered by
the defendant. Because the finding of a single aggravating circumstance authorizes the
maximum punishment to be increased to death from life without parole, the jury must find
at least one statutory aggravating circumstance unanimously beyond a reasonable doubt.
Ring, 536 U.S. at 609. Consistent with Ring, the only circumstance in which Alabama law
allows a jury to return an advisory verdict of death is when the jury has found unanimously,
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beyond a reasonable doubt, the existence of one or more statutory aggravating circumstances.
§ 13A-5-46(e).
McNabb challenges the statutory scheme because it does not require the jury to
enumerate explicitly in its advisory verdict which statutory aggravating circumstance[s] it has
found unanimously beyond a reasonable doubt. McNabb’s complaint can be analogized to
a request in a non-capital case for a jury’s verdict form to list all of the elements of the
charged crime, so that the defendant can be sure that the jury found each element
unanimously beyond a reasonable doubt.
Although such a system may be preferential as a matter of full disclosure, it is not part
of Alabama’s capital sentencing scheme and, more importantly, it is not required by the
Constitution. The rendering of an advisory verdict of death (that comports with Ring)
necessarily requires a finding of one or more statutory aggravators. § 13A-5-46(e). The jury
in this case was properly instructed and rendered an advisory verdict of death. By necessity,
it unanimously found beyond a reasonable doubt at least one of the three potential statutory
aggravating circumstances. Because the jury made that finding, the maximum sentence was
increased to death, and the trial court’s imposition of that sentence did not violate Ring.
2.

The Trial Court’s Reliance on Three Aggravating Circumstances, Which the
Jury did not Find Unanimously, Violated McNabb’s Sixth and Fourteenth
Amendment Rights

McNabb makes the related argument that the trial court, when it sentenced McNabb
to death, relied on all three statutory aggravating circumstances, without the guarantee that

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the jury found all of them unanimously beyond a reasonable doubt. McNabb argues that this
hybrid system of capital sentencing violates Ring because it allows the trial court to consider
statutory aggravating circumstances (perhaps) not found to exist by the jury.
The very portion of Ring which McNabb quotes undermines his argument: “‘[W]e
overrule Walton to the extent that it allows a sentencing judge, sitting without a jury, to find
an aggravating circumstance necessary for the imposition of the death penalty.’” (Pet. 71
(quoting Ring, 536 U.S. at 609 (emphasis added)).) As explained above, the jury was
required to find one or more statutory aggravating circumstances unanimously beyond a
reasonable doubt before it could render an advisory verdict of death. § 13A-5-46(e). When
one statutory aggravating circumstance is found by a jury beyond a reasonable doubt, the
maximum penalty is shifted upwards from life without parole to death, and any other
statutory aggravating circumstances may be found by the sentencing judge without increasing
the statutory maximum penalty. Thus, any additional statutory aggravating circumstances
found by the trial judge are not “necessary for the imposition of the death penalty.” Ring,
536 U.S. at 609.
In this case, the jury’s finding of at least one statutory aggravating circumstance
(because it rendered an advisory verdict of death) allowed the trial judge to consider all three
without effecting a Ring violation. McNabb’s claim is due to be dismissed.

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3.

McNabb’s Argument That the Court Improperly Expanded the Role of the
Jury at the Penalty Phase

McNabb next argues, somewhat in contradiction to his prior two arguments, that the
Alabama Supreme Court improperly “held that Mr. McNabb’s jury, instead of merely issuing
a general advisory verdict in accordance with Alabama law, actually made the specific factfindings as to the existence of an aggravating circumstance.” (Pet. 73 (citing McNabb II, 887
So. 2d at 998).) McNabb argues that “[i]n so holding, the [Alabama Supreme Court]
morphed the jury’s non-unanimous 10-2 general advisory verdict into a unanimous factfinding beyond a reasonable doubt of the existence of an aggravating circumstance.” (Pet.
73.)
McNabb attempts to morph Alabama law. As explained above, the jury’s advisory
verdict in a capital case in Alabama involves a two-step process. First, the jury must
determine unanimously beyond a reasonable doubt that one or more statutory aggravating
circumstances exist. §13A-5-46(e). If no statutory aggravating circumstance is found to
exist, the jury must recommend (and the sentencing judge must impose) life without parole.13
§13A-5-46(e)(1). However, if the jury finds a statutory aggravating circumstance, it then
moves to step two, weighing that circumstance against the mitigating circumstances. On

13

The Court does see one circumstance where Alabama’s capital sentencing scheme
could run afoul of Ring. Assume that the jury found no statutory aggravators, and returned an
advisory verdict of life without parole, as it is required to do. The sentencing judge misinterprets
the advisory verdict as having found the statutory aggravator, but nevertheless recommending life
without parole based upon the mitigating circumstances outweighing the aggravator(s). The
sentencing judge then disregards the advisory verdict and imposes death, despite the fact that no
aggravator was found to exist by the jury. Fortunately, that situation does not exist here.
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account of this two-step process, a jury may unanimously find a statutory aggravating
circumstance, but may not unanimously recommend the death penalty. Some jurors may feel
that the mitigating circumstances outweigh the aggravating circumstances unanimously
found to exist.
McNabb argues that the trial court’s charges insufficiently instructed the jury on its
duties. In affirming McNabb’s death sentence, the Alabama Supreme Court considered
McNabb’s argument that the trial court’s penalty phase instructions “did not ensure that all
12 jurors found [unanimously] the existence of any one of the three aggravating factors on
which the trial court based its sentence.” McNabb II, 887 So. 2d at 1002; see also McNabb
I, 887 So. 2d at 992 (stating that the three statutory aggravating circumstances found by the
trial court were: “(1) that McNabb knowingly created a great risk of death to many persons,”
Ala. Code § 13A-5-49(3); “(2) that the murder was committed for the purpose of avoiding
or preventing a lawful arrest or effecting an escape from custody,” Ala. Code § 13A-5-49(5);
and “(3) that the murder was committed to disrupt or to hinder the lawful exercise of any
governmental function or the enforcement of laws,” Ala. Code § 13A-5-49(7)). Although
conceding that the jury “was instructed to make a unanimous finding as to whether any of the
three aggravating circumstances ultimately found to exist by the trial judge existed,” McNabb
argued that the trial court erred by “failing to instruct the jury expressly that it must
unanimously find the existence of the same aggravating circumstance.” McNabb II, 887 So.
2d at 1005. In rejecting McNabb’s argument, the Alabama Supreme Court found that “[t]he

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instructions contained a number of premises that, when considered as a whole, apprised the
jury of the proper unanimity requirement.” Id.
The Alabama Supreme Court’s finding is entitled to deferential review under § 2254.
Having reviewed the charges with § 2254 in mind, this Court concludes the Alabama
Supreme Court’s holding is correct and McNabb is not entitled to relief.
4.

Ring Requires that the Jury Find that the Aggravating Circumstances
Outweigh the Mitigating Circumstances Unanimously Beyond a Reasonable
Doubt

McNabb argues that Ring requires that the jury’s weighing of the aggravating and
mitigating circumstances result in a unanimous decision beyond a reasonable doubt prior to
imposition of a sentence of death. This claim can be discarded forthrightly. Ring only
requires that “[i]if a State makes an increase in a defendant’s authorized punishment
contingent on [a] finding of fact, that fact – no matter how the State labels it – must be found
by a jury beyond a reasonable doubt.” 536 U.S. at 602 (citing Apprendi v. New Jersey, 530
U.S. 466, 482-83). Again, McNabb misunderstands Ring’s application to Alabama’s capital
sentencing scheme. It is not the jury’s weighing of the aggravating and mitigating
circumstances that increases a capital defendant’s authorized punishment to death. In fact,
under Alabama law, that balancing can be disregarded entirely by the trial court who
sentences the capital defendant.

§ 13A-5-47(e) (“While the jury’s recommendation

concerning sentence shall be given consideration, it is not binding upon the court.”). Rather,
the jury only begins to weigh the aggravating and mitigating circumstances once it has found

45

a statutory aggravating circumstance unanimously beyond a reasonable doubt. At that point,
the capital defendant’s maximum sentence is increased to death. There is no additional
upward shift (how could there be?) when the jury engages in the balancing of the aggravators
and mitigators. Accordingly, Ring does not apply to the jury’s weighing of aggravating and
mitigating circumstances, and McNabb’s claim is due to be dismisssed. See United States
v. Mitchell, 502 F.3d 931, 993-94 (9th Cir. 2007) (rejecting similar argument in context of
the Federal Death Penalty Act).
N.

McNabb’s Indictment was Constitutionally Defective Because It Failed to
Specify Aggravating Circumstances on Which a Death Sentence Might be
Imposed
McNabb’s final argument is that his constitutional right to due process was violated

because he did not receive adequate notice that he could receive the death penalty. Lankford
v. Idaho, 500 U.S. 110 (1991). McNabb argues that this constitutional violation was effected
because the indictment failed to list possible aggravating circumstances. However, McNabb
was charged with two counts of capital murder, §§ 13A-5-40(a)(5) & (17), which provided
him adequate notice. Furthermore, a defendant must have a meaningful opportunity to deny
or explain the State’s evidence used to procure a death sentence. Gardner v. Florida, 430
U.S. 349, 362 (1977). The record reflects that McNabb was provided ample notice prior to
the penalty phase that the State intended to rely on the three statutory aggravating
circumstances eventually presented to the jury. (R. 2577-78.) McNabb’s claim labeled N
is due to be dismissed. Moeller v. Weber, 649 F.3d 839, 848 (8th Cir. 2011).

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IV. CONCLUSION
In conclusion, the Court determines based upon the pleadings and the state court
record that McNabb is not entitled to an evidentiary hearing or writ of habeas corpus on any
of his claims.
Accordingly, it is ORDERED that McNabb’s Petition for Writ of Habeas Corpus
(Doc. # 1) is DISMISSED. An appropriate final judgment will be entered.
DONE this 27th day of March, 2012.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE

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