Bush v. Thomas et al (DEATH PENALTY)

Filing 47

MEMORANDUM OPINION AND ORDER directing as follows: (1) Respondents' request for dismissal of Petitioner's claim I is DENIED; (2) "Petitioner's 45 MOTION for an evidentiary Hearing on his mental retardation claims" is DE NIED without prejudice because it is premature; (3) Petitioner shall file his initial brief on the merits, in which he is to demonstrate why he is entitled to relief on each of his claims pursuant to the standards set forth in 28 U.S.C. 2254(d), on or before March 31, 2014; (4) Respondents shall file their brief responding to Petitioner's brief on the merits on or before May 12, 2014; and (5) Petitioner shall file any reply to respondents' brief on or before May 27, 2014. Signed by Chief Judge William Keith Watkins on 2/20/14. (djy, )

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

WILLIAM BUSH,
Petitioner,
v.
KIM T. THOMAS, Commissioner,
Alabama Department of Corrections,
et al.,
Respondents.

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CASE NO. 2:12-CV-345-WKW
[WO]

MEMORANDUM OPINION AND ORDER
Before the court are Respondents’ request, see Resps.’ Amend. Ans. (Doc.
# 34) and Resps.’ Br. on Procedural Defaults (Doc. # 35), that one of Petitioner’s
claims in his petition for habeas corpus relief be dismissed as procedurally barred and
“Petitioner’s Motion for an Evidentiary Hearing on his Mental Retardation Claims”
(Doc. # 45). For the following reasons, the claim challenged by Respondents is not
procedurally defaulted, and Petitioner is not entitled to an evidentiary hearing at this
time.
I. RESPONDENTS’ ASSERTION OF PROCEDURAL DEFAULT
A.

Background

Petitioner is a death-sentenced inmate in the State of Alabama. He was
convicted of the capital offense of murder committed during the course of a robbery

and sentenced to death by the trial judge over the jury’s unanimous recommendation
of a life-without-parole sentence. Bush v. State, 695 So. 2d 70, 81 (Ala. Crim. App.
1995).1 He unsuccessfully sought post-conviction relief in the state courts pursuant
1

The procedural history of Petitioner’s case is far more complex and detailed than recounted
here, and includes multiple trials in the state court and a previous, successful, petition for habeas
corpus relief in this court. See Bush, 695 So. 2d at 80–81. Because this order concerns
Respondents’ assertion of a procedural defense pertaining to only one of Petitioner’s claims and will
not dispose, therefore, of the petition, the court will leave a more thorough recitation of the
procedural history of this case to its anticipated subsequent order ruling on the petition for habeas
corpus relief. Briefly, the trial evidence underlying Petitioner’s conviction and sentence is recounted
in Bush as follows:
The state presented evidence showing that around 3:00 a.m., on July 26, 1981, the
appellant and a companion, Edward Lewis Pringle, entered the Majik Market
convenience store on Carter Hill Road in Montgomery, Alabama, with the intent to
rob the cashier of money to buy drugs. When they entered, two people were in the
store: Larry Dominguez, the store clerk, and his friend Tony Holmes. Dominguez
was in the restroom. The appellant pointed a pistol at Holmes and forced him toward
the restroom at the rear of the store. When Dominguez opened the restroom door,
the appellant shot both Dominguez and Holmes. The appellant then returned to the
front of the store and attempted unsuccessfully to open the cash register. Dominguez
stumbled out of the restroom, and the appellant shot him again. Before departing, the
appellant took two bags of “zodiac sign tags” from a rack behind the counter near the
cash register. The first shot striking Dominguez passed through his chin, lodging in
his neck and severing a large artery. The second shot striking Dominguez entered his
right shoulder and passed through his lungs and heart. He died quickly at the scene
from the injuries caused by the second shot; however, the injuries sustained as a
result of the first shot were potentially fatal. Holmes was shot in the throat and,
although seriously injured, he survived. He was able to describe his assailant, the
pistol, and the automobile the assailants were driving. He described the automobile
as a 1973 white-over-green Chevrolet Monte Carlo and the pistol as a nickel-plated
.38 caliber short-barreled special.
After leaving the Majik Market, the appellant and Pringle drove to a nearby
Seven–Eleven convenience store on Narrow Lane Road in Montgomery, arriving
there sometime before 4:00 a.m. The appellant entered the store and purchased a
package of Kool cigarettes from the clerk, Thomas Adams. After Adams opened the
cash register, the appellant forced him into an office area behind the counter and shot
him in the neck with the same pistol he had used to shoot Dominguez and Holmes.
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to Rule 32 of the Alabama Rules of Criminal Procedure. See Bush v. State, 92 So.
3d 121 (Ala. Crim. App. 2009). On April 16, 2012, Petitioner filed the instant
petition for habeas corpus relief (Doc. # 1). On August 7, 2012, Respondents filed
their answer to the petition, in which they asserted that certain of Petitioner’s claims
are procedurally defaulted from review in federal habeas corpus proceedings,
including portions of Claim G, Petitioner’s claim that he was denied the effective
assistance of counsel, and the entirety of Claim I, Petitioner’s claim that his execution
after serving more than thirty years on death row would constitute cruel and unusual
punishment because of “inordinate delay” he attributes to state actors. See Ans. (Doc.
# 24) at 30–33, 38–39. On August 31, 2012, the Magistrate Judge entered an order

The shot to Adams’s neck shattered his spinal cord and killed him instantly. When
the shot was fired, the barrel of the pistol was either touching Adams’s neck or within
a fraction of an inch of it. The appellant took between $20 to $30 from the cash
register, along with a bank bag and checks.
The appellant made a statement to the police in which he confessed to the crimes.
Although in his first statement he claimed that Pringle was the triggerman in both
shootings at the Majik Market and that he was the triggerman in the collateral capital
offense at the Seven–Eleven store, in his second statement, he admitted that he fired
the shots that killed Dominguez and Adams and that wounded Holmes. In assisting
the officers in recovering the weapon, the appellant said to Officer R.T. Ward, when
the pistol was recovered, “[T]hat’s the weapon that was used to shoot all three
people.” Ballistic tests of the pistol – a nickel-plated .38 caliber short-barreled
special – proved that it was the pistol that fired the shots in the commission of the
three crimes.
Id. at 81–82 (internal footnotes omitted).

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(Doc. # 31) instructing the parties to “file briefs solely on procedural default issues”
so that the court might “decide those issues prior to the parties filing briefs on the
merits and other issues in this matter.”
On October 1, 2012, Respondents filed their brief on procedural defaults (Doc.
# 35) and an amended answer (Doc. # 34). In the brief and amended answer,
Respondents explain that the “State withdraws its assertion of procedural defaults
against Bush’s claims that trial counsel rendered ineffective assistance for failing to
present allegedly mitigating evidence regarding his alleged intellectual deficiencies
and his alleged alcohol and drug use.” Resps.’ Br. (Doc. # 35) at 1. Accordingly,
Respondents’ brief asserts a procedural defense against only Petitioner’s Eighth
Amendment challenge to his execution premised on the “inordinate delay” he
attributes to the State of Alabama. On October 30, 2012, Petitioner filed his brief in
response (Doc. # 36), asserting that his Eighth Amendment claim is not procedurally
barred. Despite the scheduling order’s provision for the filing of a reply brief,
Respondents failed to file a reply. The matter is now ripe for resolution.
B.

Legal Standards Applicable to Procedural Default Defenses

Procedural default of a claim in a federal habeas petition can result from a
number of circumstances arising in the state courts. In this instance, Respondents
contend that Petitioner’s Eighth Amendment “claim is procedurally defaulted because
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it was raised for the first time in Bush’s habeas petition, and thus, Bush did not fairly
present it as a federal claim in the state court.” Resps.’ Br. (Doc. # 35) at 3.
Respondents’ procedural defense, therefore, entails the related but distinct concepts
of exhaustion and procedural default. Those doctrines and how they are related are
discussed below.
A state prisoner seeking federal habeas corpus relief must first exhaust the
remedies available to him in the state courts before seeking relief in federal court. 28
U.S.C. § 2254(b)(1)(A). “The prisoner exhausts his state remedies by presenting his
constitutional claim to the State courts, to afford them an opportunity to correct any
error that may have occurred.” Hardy v. Comm’r, Ala. Dep’t of Corr., 684 F.3d 1066,
1074 (11th Cir. 2012) (citing Duncan v. Henry, 513 U.S. 364, 365 (1995) (per
curiam)).

Courts generally require that the “opportunity” to resolve federal

constitutional claims in the state courts be “full and fair.” O’Sullivan v. Boerckel, 526
U.S. 838, 845 (1999). Hence, the state prisoner must generally alert the state courts
to the federal nature of a given claim. Duncan, 513 U.S. at 365–66 (“If state courts
are to be given the opportunity to correct alleged violations of prisoners’ federal
rights, they must surely be alerted to the fact that the prisoners are asserting claims
under the United States Constitution.”). To do this, “a claim for relief in habeas
corpus must include reference to a specific federal constitutional guarantee, as well
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as a statement of the facts that entitle the petitioner to relief.” Gray v. Netherland,
518 U.S. 152, 162–63 (1996). In addition, with respect to each claim, the state
prisoner must “invok[e] one complete round of the State’s established appellate
review process.” O’Sullivan, 526 U.S. at 845. This requirement obliges the state
prisoner to seek even discretionary review in the State’s highest court, provided that
such “review is part of the ordinary appellate review procedure in the State[,]” in
order to exhaust federal habeas corpus claims in the state courts. Id. at 847.
Because a federal court may not grant habeas corpus relief when the Petitioner
has not exhausted available state remedies, “[i]f a petitioner fails to exhaust his state
remedies, a district court must dismiss the petition without prejudice to allow for such
exhaustion.” Gore v. Crews, 720 F.3d 811, 815 (11th Cir. 2013). If state remedies
are no longer available to the state prisoner due to state procedural limitations, the
unexhausted claim is generally treated as exhausted but procedurally defaulted from
federal habeas review. Id. at 816 (“An unexhausted claim is not procedurally
defaulted unless it is evident that any future attempts at exhaustion would be futile
due to the existence of a state procedural bar.”); see also McNair v. Campbell, 416
F.3d 1291, 1305 (11th Cir. 2005) (“It is well established that when a petitioner has
failed to exhaust his claim by failing to fairly present it to the state courts and the

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state court remedy is no longer available, the failure also constitutes a procedural
bar.”).
A federal court may consider a procedurally defaulted claim only if the
Petitioner can show (1) cause for the procedural default in the state courts and
prejudice flowing from the asserted federal violation, or (2) that a fundamental
miscarriage of justice will result if the federal claim is not considered on its merits.
Bishop v. Warden, GDCP, 726 F.3d 1243, 1258 (11th Cir. 2013). “As a general
matter, ‘cause’ for procedural default exists if ‘the prisoner can show that some
objective factor external to the defense impeded counsel’s efforts to comply with the
State’s procedural rule.’” Id. (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).
A petitioner may achieve this threshold by showing, for instance, that “the factual or
legal basis for a claim was not reasonably available to counsel, or that some
interference by officials made compliance impracticable.” Murray, 477 U.S. at 488
(citations and quotations omitted). Likewise, the ineffective assistance of counsel
may constitute “cause” for a procedural default of a federal claim in the state courts.
Id.
In addition to cause, the habeas petitioner must demonstrate actual prejudice
to overcome a procedural default. “Actual prejudice means more than just the
possibility of prejudice; it requires that the error ‘worked to his actual and substantial
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disadvantage, infecting his entire trial with error of constitutional dimensions.’”
Ward v. Hall, 592 F.3d 1144, 1178 (11th Cir. 2010) (quoting United States v. Frady,
456 U.S. 152, 170 (1982)).
Finally, a federal court may review a procedurally defaulted habeas claim on
the merits, even in the absence of cause or prejudice, if necessary to remedy a
“fundamental miscarriage of justice.” A fundamental miscarriage of justice occurs
if a “constitutional violation has probably resulted in the conviction of one who is
actually innocent.” Murray, 477 U.S. at 496. To show a fundamental miscarriage of
justice based on asserted actual innocence, the petitioner must “support his
allegations of constitutional error with new reliable evidence – whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence – that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995).
C.

Application

As mentioned above, Respondents appear to contend that Petitioner’s Eighth
Amendment challenge is procedurally defaulted because it was first raised in his
federal habeas corpus petition and that, therefore, because Petitioner “did not present
this claim as [a] federal claim in the state court, he did not give the state courts a fair
opportunity to decide it.” Resps.’ Br. (Doc. # 35) at 3. Respondents further argue
that dismissal of the petition to permit Petitioner to return to state court and exhaust
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the claim “would be futile because he would be barred from raising it in state court
under Rule 32.2(c) of the Alabama Rules of Criminal Procedure (statute of limitations
bar) and Rule 32.2(b) of the Alabama Rules of Criminal Procedure (successive
petition bar).” Id. at 3–4. As the claim is now barred by adequate and independent
state procedural rules, Respondents maintain, it is “procedurally defaulted from
habeas review” and should be dismissed barring a showing of cause and prejudice for
the purported procedural default. Id. at 4. Petitioner argues that he did, in fact, raise
the claim in the state courts and that the claim was also decided on its merits in the
state courts. Pet’r’s Br. (Doc. # 36) at 3–4. Thus, he asserts, “the claim is properly
preserved for federal review and is not procedurally defaulted.” Id. at 4.
Indeed, Petitioner did first present his Eighth Amendment claim in his brief in
support of his petition for writ of certiorari to the Alabama Supreme Court during
direct review of his conviction. Petitioner introduced the text of Section XVIII with
the following summary:
IT WOULD CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT
TO EXECUTE WILLIAM BUSH AFTER HE HAS ALREADY SPENT
15 YEARS ON DEATH ROW, ENDURING SIX EXECUTION
DATES AND TWO NEAR-EXECUTIONS, WITH HIS CASE STILL
ONLY ON DIRECT APPEAL, WHERE SUCH DELAY IS
ATTRIBUTABLE TO CONSTITUTIONAL VIOLATIONS BY THE
STATE

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R.-35, Vol. 19, at 72. In the brief, Petitioner described his then already lengthy stay
on Alabama’s death row and the multiple instances in which a scheduled execution
appeared imminent. Id. He also attributed the unusual “delay” in having his case
heard on direct appeal to the “constitutional violations by the prosecutor and trial
judge,” which caused state appellate courts and a federal district court to overturn his
convictions and twice order new trials. Id. at 73–75. Petitioner premised his claim
on the opinion of Justices Stevens and Breyer respecting the denial of certiorari in
Lackey v. Texas, 514 U.S. 1045 (1995). See R.-35, Vol. 19, at 75. In that opinion,
Justice Stevens discussed the potential merit of a claim alleging that “executing a
prisoner who has already spent some 17 years on death row violates the Eighth
Amendment’s prohibition against cruel and unusual punishment[,]” but ultimately
concluded that the issue should first be addressed by the other courts rather than the
Supreme Court in the first instance. 514 U.S. at 1045. Buoyed by Lackey and
subsequent developments in that case and Porter v. Singletary, 49 F.3d 1483 (11th
Cir. 1995) (per curiam), Petitioner argued before the Alabama Supreme Court that
executing him “following the inordinate delay attributable to the state would violate
his right against cruel and unusual punishment, his right to due process, and other
rights safeguarded by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution . . . .” R.-35, Vol. 19, at 78. It is evident therefore, that,
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contrary to Respondents’ argument, this claim was not “raised for the first time in
Bush’s habeas petition.” Resps.’ Br. [Doc. # 35] at 3.2 In addition, as argued by
Petitioner, the Alabama Supreme Court opted to grant certiorari review of Petitioner’s
Eighth Amendment claim and ultimately denied the claim on its merits. See Ex parte
Bush, 695 So. 2d 138, 139–40 (Ala. 1997).
For the foregoing reasons, this claim was presented in the state courts and
decided on its merits by the Alabama Supreme Court, and, therefore, the claim is not
procedurally defaulted from review in federal habeas corpus.3 Accordingly, after

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Respondents’ contention in this court is especially confounding considering that, in
responding to the petition for certiorari review in the Alabama Supreme Court, the State specifically
argued that this claim “is raised for the first time before this Court, having not been asserted in the
Court of Criminal Appeals.” R.-36, Vol. 20, at 146. The State went on to argue that “the claim is
without merit and due to be denied.” Id. Thus, not only did Petitioner raise his Eighth Amendment
claim in the state courts, but the State recognized and argued against the merits of the claim in its
briefing to the Alabama Supreme Court. Nevertheless, Respondents have not replied to Petitioner’s
response to their procedural default argument and have not filed a second amended answer revoking
their procedural default defense as to this claim.
3

Because Respondents did not reply to Petitioner’s response, Respondents have not presented
any argument about whether Petitioner’s Eighth Amendment claim might be procedurally defaulted
because he presented it, for the first and only time, in the Alabama Supreme Court during certiorari
proceedings. See Castille v. Peoples, 489 U.S. 346, 349–51 (1989) (quoting Pa. Rule App. P. 1114)
(holding that, “where the claim has been presented for the first and only time in a procedural context
in which its merits will not be considered unless ‘there are special and important reasons therefor[,]’”
as in a petition seeking discretionary review before a state’s highest court, the claim has not been
fairly presented to the state courts and, therefore, will not satisfy the exhaustion requirement); see
also Mauk v. Lanier, 484 F.3d 1352, 1358 (11th Cir. 2007) (holding that a claim first presented in
a petition for certiorari review before the Georgia Supreme Court was not fairly presented and
exhausted in the state courts for purposes of federal habeas).
However, two points disfavor application of the rule of Castille and Mauk in this case. First,
although the current rules governing the Alabama Supreme Court’s exercise of its discretionary
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appropriate briefing by the parties, the court will consider whether the Alabama
Supreme Court’s decision denying the claim is “contrary to, or involved an
unreasonable application of, clearly established Federal law” or is “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) & (2).

certiorari authority are markedly similar to the Pennsylvania rules at issue in Castille, compare
Castille, 489 U.S. at 347, with Ala. R. App. P. 39(a), at the time Petitioner filed his petition for
certiorari review in the Alabama Supreme Court, such review was mandatory, not discretionary,
unlike the allocatur review process in Pennsylvania at issue in Castille. The Court Comment to Rule
39 of the Alabama Rules of Appellate Procedure states that the Rule was amended in 2000 to remove
“the provision in the former Rule 39(c) that provided that a petition for a writ of certiorari to the
Supreme Court in a case in which the death penalty was imposed would be granted as a matter of
right.”
Second, to the extent the Alabama Supreme Court might still have exercised some discretion
in granting certiorari on Petitioner’s Eighth Amendment claim, Castille and Mauk still would not
compel a procedural default of the claim because the Alabama Supreme Court proceeded to grant
certiorari and decide the claim on its merits, thereby effecting a sort of exception to the exhaustion
requirement. Castille itself appears to recognize this circumstance as a “reasonabl[y] infer[red]”
exception to the statutory exhaustion requirement, which would otherwise require a Petitioner to
seek collateral relief in the state courts on a claim that has already been decided by the state’s highest
court on direct review. See 489 U.S. at 351. Other appellate courts have recognized this exception
explicitly. See, e.g., Casey v. Moore, 386 F.3d 896, 916 n.18 (9th Cir. 2004) (“Of course, a claim
is exhausted if the State’s highest court expressly addresses the claim, whether or not it was fairly
presented.”) (citing Castille, 489 U.S. at 351). Because the exhaustion requirement is itself
“grounded in principles of comity[,]” Mauk, 484 F.3d at 1357, courts may reasonably infer that a
claim already decided on the merits by the state’s highest court, whether fairly presented in one
complete round of the state courts’ review process or not, is exhausted for purposes of federal habeas
review and is therefore not subject to the procedural bars potentially applicable to claims which were
similarly presented, but not considered, in discretionary review. See Castle v. Schriro, 414 F. App’x
924, 926 (9th Cir. 2011) (unpublished decision) (“Only if the appellate court goes ahead and
considers the new issue on its merits are the interests of comity satisfied such that the federal court
can properly consider the issue under 28 U.S.C. § 2254(b)(1)(A).”).
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II. PETITIONER’S MOTION FOR AN EVIDENTIARY HEARING
ON HIS MENTAL RETARDATION CLAIMS
Petitioner seeks “a hearing in which he may present evidence relevant to his
cognitive deficits, limited adaptive functioning, and early onset thereof in order to
establish his mental retardation claims.” Pet’r’s Mot. (Doc. # 45) at 1. Relying on
the Eleventh Circuit’s recent decision in Burgess v. Commissioner, Alabama
Department of Corrections, 723 F.3d 1308, 1320–22 (11th Cir. 2013), he argues that,
although he was able to present his mental retardation claim in the state courts,
because he was denied, despite his diligent efforts, the opportunity to present the sort
of evidence required to prove the claim, he is now entitled to an evidentiary hearing
in this court in order to finally prove the claim. Pet’r’s Mot. (Doc. # 45) at 1–2.
Petitioner’s motion is premature at this point. Petitioner concedes that his
claim was decided – even if incorrectly or unfairly – on its merits in the state courts.
See Pet’r’s Supp. Br. (Doc. # 46) at 3–6. He has alleged that this decision “‘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,’
and ‘resulted in a decision that was based upon an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.’” Pet. (Doc.
# 1) ¶ 117 (quoting § 2254(d)(1) & (2)). Because this claim was decided on the

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merits in the state court, this court must first determine whether that decision can
survive review under § 2254(d). Petitioner is not entitled to present new evidence,
including the conduct of an evidentiary hearing, on his mental retardation claim
unless and until this court concludes its initial inquiry under § 2254(d) in his favor.
See Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388, 1398–99 (2011) (“We now
hold that review under § 2254(d)(1) is limited to the record that was before the state
court that adjudicated the claim on the merits.”); id. at 1400 (“[E]vidence introduced
in federal court has no bearing on § 2254(d)(1) review. If a claim has been
adjudicated on the merits by a state court, a federal habeas petitioner must overcome
the limitation of § 2254(d)(1) on the record that was before that state court.”).4 See
also Hill v. Humphrey, 662 F.3d 1335, 1363–64 (11th Cir. 2011) (Tjoflat, J., specially
concurring).
In Burgess, the Eleventh Circuit structured its analysis in this same fashion.
The court first determined that the district court incorrectly found that the applicable
state court decision rejecting Burgess’s mental retardation claim survived § 2254(d)
scrutiny. 723 F.3d at 1315–19. In doing so, the Eleventh Circuit limited itself to the

4

To the extent Cullen is expressly concerned with review pursuant to § 2254(d)(1), it is clear
from the text of § 2254(d)(2) that review of the reasonableness of a state court factual determination
under that provision is similarly circumscribed by “the evidence presented in the State court
proceeding.” See also Cullen, 131 S. Ct. at 1400 n.7.
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record that was before the state court at the time of its decision. Id. at 1315–16
(“After careful review of the record before the state court, we disagree with the
district court and hold that the ruling of the Alabama Court of Criminal Appeals that
Burgess is not mentally retarded was an ‘unreasonable determination of the facts’ in
this case.”); id. at 1319 (“We hold that the state court’s determination that Burgess
is not mentally retarded is an unreasonable determination of fact because it was based
upon a combination of erroneous factual findings directly contradicted by the record
and a record that was insufficient to support its conclusions.”). Only after it
determined that the state court decision could not survive scrutiny under § 2254(d)(2)
did the Eleventh Circuit proceed to determine whether Burgess was entitled to an
evidentiary hearing on his mental retardation claim.

Id. (“Because we have

determined that the finding by the Alabama Court of Criminal Appeals that Burgess
is not mentally retarded is not entitled to AEDPA deference, the district court erred
in deferring to that conclusion. Accordingly, we must address whether the district
court also erred in refusing to hold an evidentiary hearing.”).
Similarly, this court cannot grant Petitioner an evidentiary hearing on his
mental retardation claim unless and until the court has determined, as in Burgess, that
the state court’s decision denying his claim on the merits cannot withstand scrutiny
under § 2254(d)(1) or (2). Because the parties have not yet briefed this issue in this
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court, Petitioner’s request for an evidentiary hearing is premature. Accordingly,
Petitioner’s motion will be denied at this time, subject to reconsideration in the event
that the court concludes that the Alabama Court of Criminal Appeals’ decision
denying his mental retardation claim cannot survive application of § 2254(d).
III. CONCLUSION
For the foregoing reasons, none of the claims alleged in the petition for habeas
corpus relief is subject to procedural default. Moreover, Petitioner’s motion for an
evidentiary hearing on his mental retardation claim is premature, as the parties have
not yet even briefed the merits of that, or any other, claim in the petition.
Accordingly, it is ORDERED as follows:
(1)

Respondents’ request for dismissal of Petitioner’s Claim I is DENIED;

(2)

“Petitioner’s Motion for an Evidentiary Hearing on his Mental

Retardation Claims” (Doc. # 45) is DENIED without prejudice because it is
premature;
(3)

Petitioner shall file his initial brief on the merits, in which he is to

demonstrate why he is entitled to relief on each of his claims pursuant to the
standards set forth in 28 U.S.C. § 2254(d), on or before March 31, 2014;
(4)

Respondents shall file their brief responding to Petitioner’s brief on the

merits on or before May 12, 2014; and
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(5)

Petitioner shall file any reply to respondents’ brief on or before May 27,

2014.
DONE this 20th day of February, 2014.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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