Sockwell v. Thomas (DEATH PENALTY)
Filing
50
MEMORANDUM OPINION AND ORDER: It is ORDERED that Sockwell's petition for writ of habeas corpus is DISMISSED without an evidentiary hearing as further set out in the opinion and order. An appropriate judgment will follow. Signed by Honorable Judge William Keith Watkins on 9/29/2023. (dmn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
MICHAEL SOCKWELL,
Petitioner,
v.
JOHN Q. HAMM, Commissioner,
Alabama Department of Corrections,
Respondent.
)
)
)
)
)
)
)
)
)
)
CASE NO. 2:13-CV-913-WKW
[WO]
MEMORANDUM OPINION AND ORDER
Petitioner Michael Sockwell, a death-sentenced inmate in the custody of the
Alabama Department of Corrections, has filed a habeas corpus petition, pursuant to
28 U.S.C. § 2254, challenging his conviction for the capital murder of Isaiah Harris
and the resulting death sentence he received in February 1990. Sockwell claims that
his conviction and sentence were obtained in violation of his rights under the United
States Constitution. For the reasons stated below, the petition will be denied.
I. BACKGROUND
“In the late evening hours of March 10, 1988, Isaiah Harris, a deputy sheriff
in Montgomery County, Alabama, was shot in the head while he was driving to
work.” Sockwell v. State, 675 So. 2d 4, 12 (Ala. Crim App. 1994). Montgomery
police identified a car found near the scene of the murder as belonging to Lorenzo
“Bobo” McCarter. Id. at 13. McCarter was known by police to be involved in an
affair with Louise Harris, the wife of Isaiah Harris. Id. Freddie Patterson, who was
an acquaintance of petitioner, McCarter, and co-defendant Alex Hood, testified that
he was with the three men as they drove around Montgomery before Harris’s murder.
Id. at 12. According to Patterson, sometime after 10:00 p.m., McCarter drove the
group in Hood’s vehicle to the Regency Park subdivision off Troy Highway in
Montgomery, where they circled a block and someone in the car identified a specific
car in a driveway. Id. at 12–13. With that, petitioner exited the vehicle with a
shotgun and some clothes and McCarter drove the group to a nearby auto parts store.
Id. at 13.
While sitting in the parking lot of the auto parts store, Patterson heard a voice
transmitted over a pager in the car state “something to the effect of ‘He’s leaving
now.’” Id. After Patterson heard a loud noise, the group left the auto parts store to
pick up petitioner. Back in the car, petitioner stated that he “‘had to shoot him’” and
2
that he (petitioner) “‘was gonna . . . get his money.’” Id. The group then drove to a
bridge, where petitioner disposed of the shotgun and clothes. Id. Kenneth Gilmore,
a friend of petitioner, testified that, the day after Harris’s murder, petitioner admitted
having shot someone, and that he witnessed petitioner and Hood visit a house on
Pineleaf Street to pick up some money. Id. After his arrest, petitioner gave a
videotaped statement in which he gave various accounts of his involvement in the
Harris murder but, ultimately, admitted to the shooting and having received a share
of a hundred dollars in advance of the shooting, with a prospect of receiving more
from life insurance proceeds. See Doc. 14-7 at 82–100.1
Petitioner, McCarter, Hood, and Louise Harris were charged with Isaiah
Harris’s murder. Specifically, petitioner was charged in a two-count indictment
alleging, in Count I, that he shot Isaiah Harris “for a pecuniary gain or other valuable
consideration or pursuant to a contract or for hire,” in violation of Ala. Code § 13A5-40 (1975), as amended, and, in Count II, that he shot Isaiah Harris “while he was
a police officer . . . and while he was on duty, or because of an official or job-related
Citations to the court reporter’s transcript of petitioner’s trial will be formatted in this
order as “R. at x” and will utilize the pagination original to the reporter’s transcript. The
court reporter’s transcript can be found in Volumes I-VI of the state court record, accessible
at docket number fourteen in the ECF system. By contrast, citations to the clerk’s record,
the state court record on appeal, and the record of petitioner’s Rule 32 proceedings will
utilize the docket number and PDF page number generated in the ECF system and
appearing at the top of the document.
3
1
act or performance,” in violation of Ala. Code § 13A-5-40 (1975), as amended. Doc.
14-7 at 9–10.2
Petitioner was convicted of capital murder as charged in Count One of the
indictment. The jury recommended, by a vote of seven to five, that he be sentenced
to life imprisonment without parole.
The trial court overrode the jury’s
recommendation and sentenced petitioner to death. Petitioner’s conviction and
sentence were affirmed by the Alabama Court of Criminal Appeals (“ACCA”).
Sockwell, 675 So. 2d at 38. The Alabama Supreme Court (“ASC”) affirmed, issuing
a reasoned opinion denying petitioner’s claim pursuant to Batson v. Kentucky, 476
U.S. 79 (1986), and summarily rejecting his other claims of error. Ex parte Sockwell,
675 So. 2d 38 (Ala. 1995). The United States Supreme Court denied certiorari
review. Sockwell v. Alabama, 519 U.S. 838 (1996).
On June 23, 1997, petitioner filed a petition for relief from his conviction and
sentence pursuant to Rule 32 of the Alabama Rules of Criminal Procedure (“Rule 32
petition”) in the Circuit Court of Montgomery County, Alabama. Doc. 14-15 at 6–
86. In 2009, following amendments to the Rule 32 petition, and without affording
2
In a pre-trial hearing, the State moved to nolle pros Count II because the trial court had
previously ruled in the Louise Harris prosecution that Isaiah Harris was not on duty at the time he
was shot. R. at 112–13.
4
an evidentiary hearing, the Circuit Court granted the State’s motion to dismiss the
operative amended Rule 32 petition. Docs. 14-20 at 130–202; 14-21 at 3–88. The
ACCA affirmed, Sockwell v. State, 152 So. 3d 455 (Ala. Crim. App. 2012), and the
ASC denied Sockwell’s petition for certiorari review. Ex parte Sockwell, 140 So.
3d 945 (Ala. 2013). On December 12, 2013, petitioner filed the instant federal
habeas corpus petition.
II. PETITIONER’S CLAIMS
Petitioner asserts the following five claims for habeas corpus relief:
(1)
The State exercised its peremptory challenges of jurors in a racially
discriminatory manner in violation of the Fourteenth Amendment’s Equal Protection
Clause;
(2)
The trial court violated petitioner’s Sixth and Fourteenth Amendment
right to present witnesses in his defense by permitting Louise Harris to invoke her
Fifth Amendment privilege against self-incrimination and refuse to testify at his
trial;
(3)
The prosecutor’s repeated references during closing argument to out-
of-court inculpatory statements by petitioner’s non-testifying co-defendants violated
the Sixth Amendment’s Confrontation Clause;
5
(4)
The trial court’s consideration of extra-record information in overriding
the jury’s recommendation of life imprisonment and sentencing petitioner to death
violated the Eighth and Fourteenth Amendments; and,
(5)
Petitioner cannot constitutionally be sentenced to death because he is
mentally retarded.3
III. STANDARDS OF REVIEW
Respondent argues that petitioner’s second and fourth claims are procedurally
barred from federal habeas review while his remaining claims cannot survive the
deferential review required by 28 U.S.C. § 2254(d). The standards and criteria to be
applied in evaluating these defenses are set out below.
A.
Procedural Defenses.
Respondent contends that Claims II and IV are procedurally defaulted because
petitioner did not exhaust the claims in the state courts and there is now no available
remedy for him to exhaust the claims. A state prisoner seeking 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
3
This order employs the terminology utilized by the petition—filed in 2013—in
summarizing the petition’s claims. In the intervening years, courts have adopted the term
“intellectual disability” to describe the condition that, petitioner alleges, precludes
Alabama from executing him. Except where quoting from appellate authorities, this order
will employ “intellectually disabled” in place of “mentally retarded” in its discussion of
petitioner’s claim.
6
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)).
The “opportunity” to resolve federal
constitutional claims in the state courts must be “full and fair.” O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999). Hence, the state prisoner must 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 as a statement of the facts that entitle the petitioner to relief.” Gray v.
Netherland, 518 U.S. 152, 162–63 (1996).
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 obligates 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.” Id. at 847. A claim raised for the first and only time
in a procedural posture in which review of claims is discretionary has not been
7
“fairly presented.” Castille v. Peoples, 489 U.S. 346, 351 (1989). See also Mauk v.
Lanier, 484 F.3d 1352, 1358 (11th Cir. 2007) (finding that the habeas petitioner
failed to fairly present his claims in Georgia’s state courts where the claims were
first raised in a petition for certiorari review to the Georgia Supreme Court).4
Because a federal court ordinarily 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 state court remedy is no longer available, the
failure also constitutes a procedural bar.”).
4
This rule has been applied to bar federal review of claims presented, for the first and
only time, in discretionary review before the ASC. See Waldrop v. Comm’r, Ala. Dep’t
of Corr., 711 F. App’x 900, 918–19 (11th Cir. 2017).
8
A claim may be deemed procedurally barred in federal habeas review, even if
it was presented in the state courts, for other reasons. For example, “[a]s a general
rule, a federal habeas court may not review state court decisions on federal claims
that rest on state law grounds, including procedural default grounds, that are
‘independent and adequate’ to support the judgment.” Boyd v. Comm’r, Alabama
Dep’t of Corr., 697 F.3d 1320, 1335 (11th Cir. 2012) (citing Coleman v.
Thompson, 501 U.S. 722, 729 (1991)). In Boyd, the Eleventh Circuit set out its test
for determining whether a state’s procedural bar is adequate and independent:
First, the last state court rendering a judgment in the case must
clearly and expressly say that it is relying on state procedural rules
to resolve the federal claim without reaching the merits of the claim.
Second, the state court decision must rest solidly on state law
grounds, and may not be intertwined with an interpretation of
federal law. Finally, the state procedural rule must be adequate; i.e.,
it may not be applied in an arbitrary or unprecedented fashion. The
state court’s procedural rule cannot be manifestly unfair in its
treatment of the petitioner’s federal constitutional claim to be
considered adequate for purposes of the procedural default doctrine.
In other words, a state procedural rule cannot bar federal habeas
review of a claim unless the rule is firmly established and regularly
followed.
Id. at 1335–36 (quotations and citations omitted).
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
9
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
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
10
“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).
B.
Review Pursuant to 28 U.S.C. § 2254(d).
For those claims presented and decided on the merits in the state courts, this
court is to apply the standard of review set out in § 2254(d)(1) and (2), as modified
by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L.
No. 104, 132, 110 Stat. 1214 (1996). Section 2254(d) provides as follows:
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.
11
The phrase “‘clearly established Federal law, as determined by the Supreme
Court of the United States’ . . . refers to the holdings, as opposed to the dicta, of [the
Supreme Court’s] decisions as of the time of the relevant state-court decisions.”
Williams v. Taylor, 529 U.S. 362, 412 (2000). A state court decision is “contrary
to” clearly established federal law “if the state court arrives at a conclusion opposite
to that reached by [the Supreme] Court on a question of law or if the state court
decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Id. at 412–13. A state court decision “involve[s] an
unreasonable application of” clearly established federal law “if the state court
identifies the correct governing legal principle from [the Supreme] Court’s decisions
but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at
413. “[A] federal habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly. Rather, that application
must also be unreasonable.” Id. at 411.
Likewise, under § 2254(d)(2), “a state court factual determination is not
unreasonable merely because the federal habeas court would have reached a
different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010).
“In reviewing whether a state court’s decision was based on an ‘unreasonable
12
determination of the facts’ under § 2254(d)(2), [the court] presume[s] the state
court’s factual findings are correct, and the petitioner has the burden to rebut those
facts by clear and convincing evidence.” Wellons v. Warden, GA Diagnostic &
Classification Prison, 695 F.3d 1202, 1206 (11th Cir. 2012) (citing 28 U.S.C. §
2254(e)(1)). “This statutory presumption of correctness applies to the factual
determinations of both state trial and appellate courts.” Id. (citing Bui v. Haley,
321 F.3d 1304, 1312 (11th Cir. 2003)).
While “deference [in the habeas context] does not imply abandonment or
abdication of judicial review” and does not “preclude relief,” Miller-El v. Cockrell,
537 U.S. 322, 340 (2003), the deferential standard imposed by § 2254(d), as to both
legal conclusions and factual determinations by the state courts, is formidable. As
the Supreme Court has explained:
As amended by AEDPA, § 2254(d) stops short of imposing a complete
bar on federal court relitigation of claims already rejected in state
proceedings. It preserves authority to issue the writ in cases where there
is no probability fairminded jurists could disagree that the state court’s
decision conflicts with this Court’s precedents. It goes no farther.
Section 2254(d) reflects the view that habeas corpus is a guard against
extreme malfunctions in the state criminal justice systems, not a
substitute for ordinary error correction through appeal. As a condition
for obtaining habeas corpus relief from a federal court, a state prisoner
must show that the state court’s ruling on the claim being presented in
federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility
for fairminded disagreement.
13
Harrington v. Richter, 562 U.S. 86, 102–03 (2011) (quotation and citations omitted).
See also Loggins v. Thomas, 654 F.3d 1204, 1220 (11th Cir. 2011) (“[I]f some
fairminded jurists could agree with the state court’s decision, although others might
disagree, federal habeas relief must be denied. However it is phrased, the deference
due is heavy and purposely presents a daunting hurdle for a habeas petitioner to
clear.”).
The force of AEDPA’s “daunting” standard of review is demonstrated in other
ways. For example, AEDPA deference is owed when a state court has summarily
denied relief on a claim. That is, where there is no “opinion from the state court
explaining the state court’s reasoning,” the habeas petitioner still must show “there
was no reasonable basis for the state court to deny relief.” Harrington, 562 U.S. at
98. Thus, faced with a state court’s summary disposition on the merits, “a habeas
court must determine what arguments or theories supported, or . . . could have
supported, the state court decision; and then it must ask whether it is possible
fairminded jurists could disagree that those arguments or theories are inconsistent
with the holding in a prior decision of” the Supreme Court. Id. at 102. Furthermore,
even where the state court has provided a reasoned decision, AEDPA still requires
the federal court to “consider any potential justification” for the state court’s ultimate
disposition, even those not expressly offered by the state court. Pye v. Warden,
14
Georgia Diagnostic Prison, 50 F.4th 1025, 1036 (11th Cir. 2022) (en banc). Put
another way, while a federal court in habeas must “evaluate the reasons offered by
the [state] court,” if the state court’s reasons can be justified “on a basis the state
court did not explicate, the state-court decision must still stand.” King v. Warden,
Georgia Diagnostic Prison, 69 F.4th 856, 867 (11th Cir. 2023).
If petitioner succeeds in surmounting the formidable obstacles imposed by
AEDPA, then this court is “unconstrained by § 2254’s deference and must
undertake a de novo review of the record.” Adkins v. Warden, Holman CF, 710 F.3d
1241, 1255 (11th Cir. 2013) (citation and internal quotation marks omitted). Even
in de novo review, however, with limited exceptions, the court may not grant habeas
corpus relief unless the state court error at issue was harmless.
Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993). “In collateral cases, a federal constitutional
error is harmless unless it imposed ‘actual prejudice.’” Sears v. Warden, GDCP, 73
F.4th 1269, 1280 (11th Cir. 2023) (quoting Brecht, 507 U.S. at 637–38). Actual
prejudice results when the error “had substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht, 507 U.S. at 637.
15
IV. DISCUSSION
A.
Claims Two and Four are not Procedurally Defaulted.
Before addressing petitioner’s contention that the state courts unreasonably
adjudicated his constitutional claims on the merits, the court first considers
respondent’s affirmative defense that Claims Two and Four are procedurally
defaulted. For the reasons that follow, respondent’s procedural default defense fails.
To review, Claim Two alleges that petitioner’s Sixth and Fourteenth
Amendment right to present witnesses in his defense was violated when the trial
court failed to determine whether Louise Harris’s invocation of her Fifth
Amendment privilege against self-incrimination at petitioner’s trial was valid and
legitimate.
Pet. ¶¶ 76–77.
Claim Four alleges that petitioner’s Eighth and
Fourteenth Amendment rights were violated when the trial judge overrode the jury’s
life recommendation and sentenced petitioner to death based, in part, on extra-record
evidence that was not introduced at petitioner’s trial. Specifically, petitioner alleges
that, nearly a year after the trial judge announced petitioner’s death sentence in court,
he issued a written sentencing order that “made numerous inflammatory references
to evidence from the trial of Louise Harris that had never been presented at Mr.
Sockwell’s trial, and that Mr. Sockwell had no opportunity to challenge or rebut.”
Pet. ¶ 113.
16
Respondent contends that Claims Two and Four are unexhausted because
petitioner failed to fairly present the claims to the state courts. Furthermore,
respondent asserts, because state law precludes petitioner from returning to state
court to exhaust the claims, the claims are procedurally defaulted from federal
habeas review and, consequently, are due to be dismissed. Doc. 13 at 11, 19.
Although respondent argues that petitioner failed to exhaust both claims, the
circumstances of petitioner’s purported failure to exhaust differ slightly and,
therefore, deserve further explanation.
Respondent argues that petitioner failed to present Claim Two in his direct
appeal to the ACCA, and that his subsequent presentation of Claim Two in his
petition for certiorari review in the ASC was insufficient to fairly present and exhaust
the claim because petitioner did not raise the claim at all levels of state court review.
Doc. 13 at 12. Respondent argues that petitioner failed to exhaust Claim Four
because in his direct appeal to the ACCA he challenged the trial court’s reliance on
extra-record evidence exclusively on state law grounds. Id. at 19. Respondent
further asserts that petitioner did not present a federal constitutional challenge to the
trial court’s reliance on extra-record evidence until his petition for certiorari review
in the ASC, which, respondent maintains, for the same reasons as Claim Two, was
insufficient to exhaust the claim in the state courts.
17
Petitioner concedes that he did not present Claim Two on direct appeal to the
ACCA, and that he first presented the claim in his petition for certiorari before the
ASC. Pet. ¶ 77. Likewise, with respect to Claim Four, petitioner concedes that,
while he “assigned the trial court’s decision as error on direct appeal” to the ACCA,
he “raised his constitutional claim to the Alabama Supreme Court.” Pet. ¶ 114. In
essence, therefore, petitioner and respondent appear to be in agreement that both
Claim Two and Claim Four were raised as federal constitutional claims in the state
courts, for the first and only time, in the ASC.5
Were that the end of the inquiry, and assuming the accuracy of respondent’s
contention that Alabama law precludes petitioner from returning to the state court to
exhaust the claims, then the authorities outlined previously might compel the
5
Upon review of the record, it appears to the court that petitioner did raise the constitutional
argument presented in Claim Four on direct appeal to the ACCA. In his supplemental brief
in the ACCA, petitioner challenged, on federal constitutional grounds, the trial court’s
adoption of a proposed sentencing order that contained the information and findings from
Louise Harris’s trial. See Doc. 14-9 at 133–42. This portion of petitioner’s supplemental
appellate brief is substantially similar to the portion of his brief in the ASC which, the
parties appear to agree, articulated Claim Four in the ASC. Compare Doc. 14-9 at 133–42
with Doc. 14-12 at 124–33. In particular, petitioner’s supplemental brief in the ACCA
cites and heavily relies upon the same authority, Gardner v. Florida, 430 U.S. 349 (1977),
that he relied upon in the ASC and that he cites as governing Claim Four in the instant
petition. See Doc. 14-9 at 140–42; Pet. ¶ 116. Nevertheless, because petitioner is the
master of the petition, the court defers to his concession that he did not present his
constitutional claim until his brief in the ASC. Because, for reasons that will be explained
in the text, the court ultimately would not find Claim Four procedurally defaulted even if
it was not presented in the ACCA, the court need not proceed further.
18
conclusion that Claims Two and Four are procedurally defaulted in federal habeas
corpus because they were not fairly presented at all levels of Alabama’s review
process. The Supreme Court has recognized, however, that it is “reasonable to infer
an exception” to the fair presentation requirement grounded in the decision of a
state’s highest appellate court to adjudicate a claim that was not presented to a lower
court. See Castille, 489 U.S. at 351. Castille based this exception on pragmatism,
remarking that, where a state’s highest court “has actually passed on the claim,” “it
is fair to assume that further state proceedings would be useless.” Id. Castille’s
inferred exception thus spares both the petitioner and the state courts from collateral
relitigation of a claim that has already been decided by the state’s highest court on
direct review.
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). Thus, 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 it was fairly presented in one complete round
of the state courts’ review process or not, is exhausted for purposes of federal habeas
19
review and is therefore not subject to the procedural bars potentially applicable to
claims which were similarly presented to, but not considered by, the state’s highest
court. 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).”).
Here, as the parties have acknowledged, there is no doubt that the
constitutional arguments underlying Claims Two and Four were presented to the
ASC in petitioner’s brief in support of his petition for certiorari review. See Doc.
14-12 at 81–86 (alleging federal constitutional error with respect to Harris’s Fifth
Amendment invocation); id. at 129–133 (alleging federal constitutional error with
respect to the trial court’s reliance on extra-record evidence in its sentencing order).
Respondent does not argue, and nothing in the record indicates, that the ASC
excluded from its review any of the claims raised by petitioner. As noted previously,
in its decision affirming the ACCA, the ASC provided a reasoned discussion of its
rejection of only petitioner’s Batson claim. The ASC considered and summarily
rejected petitioner’s remaining claims as follows:
We note that Sockwell has raised in this Court issues that either
were not before the Court of Criminal Appeals or were not
addressed in its opinion. In a capital case, this Court may consider
any issue concerning the propriety of the conviction and the death
20
sentence, and we have thoroughly considered each issue Sockwell
has raised. We have also independently searched the record for
reversible error, considering the applicable law as it relates to the
facts of this case, and have found none.
Ex Parte Sockwell, 675 So. 2d at 42 (emphasis added).
It is well-settled that a state court may summarily decide the merits of a
constitutional claim without providing a “statement of reasons,” and that a federal
court is obligated to treat such a summary decision as a decision on the merits for
purposes of applying the AEDPA. See Harrington, 562 U.S. at 98. Indeed, the state
court is not even required to affirmatively indicate that it decided a claim on the
merits before the federal court must treat it as having done so. Id. at 99 (“When a
federal claim has been presented to a state court and the state court has denied relief,
it may be presumed that the state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles to the contrary.”).
Here, petitioner plainly presented the relevant federal claims to the ASC and
that court affirmatively indicated that it “thoroughly considered” such claims,
notwithstanding any failure to present them to the ACCA, and found no error.
Because the ASC therefore adjudicated the merits of petitioner’s federal claims, this
court may reasonably infer that Claims Two and Four were adequately exhausted
for purposes of the AEDPA, or, alternatively, that they are excepted from the
requirement of “fair presentation” at all levels of Alabama’s review process, and,
21
consequently, they are not procedurally defaulted. Accordingly, the court will
consider whether the ASC’s summary decision denying the claims 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.” § 2254(d)(1) & (2).
B.
Review Pursuant to 28 U.S.C. § 2254(d)(1) and (2).
1.
Claim One
Claim One is petitioner’s claim that prosecutors exercised peremptory
challenges in a racially discriminatory manner at his trial, in violation of the Equal
Protection Clause of the Fourteenth Amendment, as explicated in Batson. Pet. ¶ 39.
Specifically, the petition alleges a constitutional violation with respect to only one
of the prosecutors’ peremptory challenges, that of veniremember Eric Davis. See
Pet. ¶¶ 46–75. Petitioner’s Batson claim challenging the Davis strike was raised on
direct appeal to the ACCA, which affirmed the trial court, see Sockwell, 675 So. 2d
at 18–20, and was the subject of the ASC’s reasoned opinion affirming his
conviction and sentence. See Ex Parte Sockwell, 675 So. 2d at 39–41. Because the
last state court to address petitioner’s Batson claim, the ASC, issued a reasoned
decision denying the claim on the merits, this court reviews that decision pursuant
to § 2254(d).
22
a.
Clearly Established Federal Law
In Batson, the Supreme Court held that an inquiry into the motivations behind
a peremptory challenge may be required to ensure that the challenge was not made
for purposeful discrimination on the basis of race. “[T]he burden is, of course, on
the defendant who alleges discriminatory selection of the venire to prove the
existence of purposeful discrimination.” 476 U.S. at 93 (quoting Whitus v. Georgia,
385 U.S. 545, 550 (1967)) (quotation marks omitted).
In deciding if the defendant has carried his burden of persuasion, a court
must undertake “a sensitive inquiry into such circumstantial and direct
evidence of intent as may be available.” Circumstantial evidence of
invidious intent may include proof of disproportionate impact. . . .
. . . Once the defendant makes the requisite showing, the burden shifts
to the State to explain adequately the racial exclusion. The State cannot
meet this burden on mere general assertions that its officials did not
discriminate or that they properly performed their official duties.
Rather, the State must demonstrate that “permissible racially neutral
selection criteria and procedures have produced the monochromatic
result.”
Id. at 93–94 (citations omitted). The Court of Appeals’ recent King decision
describes the familiar three-step Batson procedure and how a federal court, sitting
in habeas, is to review a state appellate court’s application of Batson:
At the first step, the defendant must establish a prima facie case by
producing evidence sufficient to support the inference that the
prosecutor exercised peremptory challenges on the basis of race [or
sex]. At the second step, the burden shifts to the State to come forward
with a neutral explanation for its strikes. At the third step, the trial court
23
must find, as a matter of fact, whether the defendant has established
purposeful discrimination. Typically, the decisive question will be
whether counsel’s race- [or sex-]neutral explanation for [the]
peremptory challenge should be believed.
The trial court must consider all relevant circumstances at the third step,
and the conviction cannot stand if even one of the strikes was
discriminatory. When a court considers a Batson claim in an appeal or
a state habeas proceeding, the state court’s written opinion is not
required to mention every relevant fact or argument for its merits
determination to receive deference on review by a federal court.
Instead, the petitioner must prove that the state court failed to consider
that argument or fact.
King, 69 F.4th at 868 (quotations and citations omitted).
b.
Batson Proceedings in the Trial Court
The trial record indicates that there were fifty-five potential jurors in the
venire at petitioner’s trial. Fourteen of these fifty-five were black. After posing a
number of general questions to the entire venire, the trial court proceeded to conduct
individual voir dire in the jury room with the aim of “death qualifying” jurors and
exploring their pretrial exposure to information about the case. Because petitioner’s
Batson claim challenges only the strike of veniremember Eric Davis, and because
Davis’s voir dire testimony was integral to the state courts’ disposition of petitioner’s
Batson claim, the testimony of Davis during individual voir dire is reproduced here
in its entirety:
THE COURT: Your name, please?
PROSPECTIVE JUROR: Eric Davis.
24
[After having first been duly sworn to speak the truth, the whole truth,
and nothing but the truth, the prospective juror testified as follows:]
THE COURT: Have you heard or read from any source anything about
these circumstances that we’re here today on?
PROSPECEIVE JUROR: I’ve heard a little something.
THE COURT: Okay. Have you heard or read or from any other source
gained any information as to whether or not this defendant was guilty
or not?
PROSPECTIVE JUROR: Now, I had heard something.
THE COURT: You haven’t?
PROSPECTIVE JUROR: I had heard something.
THE COURT: What did you hear and where was it from?
PROSPECTIVE JUROR: Oh, I just, um, it was something in the
newspaper or something.
THE COURT: Well, what did you hear in the newspaper or read in the
newspaper?
PROSPECTIVE JUROR: Well, I just, you know, just heard talk about
what they had heard in the newspaper or something like that. I didn’t
read it for myself.
THE COURT: From somebody you heard?
PROSPECTIVE JUROR: Um-hum, yes.
THE COURT: When did you hear that?
PROSPECTIVE JUROR: It’s been a while back.
THE COURT: About how long ago?
PROSPECTIVE JUROR: Several months ago.
THE COURT: Several months ago. Did you hear specifically about this
defendant right here?
25
PROSPECTIVE JUROR: No.
THE COURT: Okay. Do you remember what you heard?
PROSPECTIVE JUROR: Not exactly.
THE COURT: Can you remember it for me the best you can?
PROSPECTIVE JUROR: Um, the only thing I recall is just, you know,
um, listening at some of the guys, you know, that said they had read
about it, you know, the incident out on Troy Highway, stuff like that,
you know, what had happened and so forth, you know.
THE COURT: Okay. Do you feel like you’d be able to put aside
whatever you had heard some of the guys say about what they had read
and listen to the facts as they come to you in Court and based on those
facts and those alone make a fair, honest, conscientious impartial
decision on guilt and non guilt based on those facts and the law as
instructed to you by the Court?
PROSPECTIVE JUROR: Yes, I can.
THE COURT: Because this is a capital case and if we were to reach a
sentencing stage the possible punishments on a capital offense are life
imprisonment without parole and the death penalty, so I need to ask you
some questions concerning this matter if we were to get to the
sentencing stage. Are you opposed to the death penalty under any
circumstances?
PR0SPECTIVE JUROR: No.
THE COURT: Okay. Are you for the death penalty under all
circumstances?
PROSPECTIVE JUROR: Well, it could go either way.
THE COURT: Okay. You think you could follow your oath and listen
to the instructions of the Court and -PROSPECTIVE JUROR: Yes sir. Fair enough to listen to the trial and
then come up with a verdict.
THE COURT: Okay. Thank you.
26
[WHEREUPON, Mr. Davis was excused from the juryroom.]
R. at 340–43.
Following individual voir dire, during which the parties lodged challenges for
cause, there remained forty-two potential jurors, ten of whom were black. Thus, to
seat twelve jurors, each side was afforded fifteen peremptory challenges, with the
last of each side’s peremptory challenges to be seated as the two alternate jurors.
The lead prosecutor, Montgomery County Assistant District Attorney Ellen Brooks,
used eight of her fifteen challenges to remove black veniremembers. The defense
used all fifteen of its peremptory challenges to remove white veniremembers. The
two alternate jurors were white. Thus, two of the jurors seated at petitioner’s trial
were black. Eric Davis was the State’s twelfth peremptory strike overall and the
seventh of its eight strikes of black veniremembers.
Immediately after striking the jury, the defense moved for a Batson hearing.
The trial court granted the motion, but opted to hold the hearing after dismissing the
veniremembers who had been struck. At the Batson hearing, the defense cited
Brooks’s eight peremptory strikes of black veniremembers and argued that she must
explain the reasons for her strikes. R. at 398–99. The trial court did not initially rule
that petitioner had proven a prima facie case of racial discrimination, but it did
prompt Brooks to respond to the defense’s argument. Brooks argued that the
defense’s statistical showing was not sufficient under Batson to state a prima facie
27
case, but the trial court determined to “move forward and ask you to show me what
your reasons are.” R. at 400.
Brooks then proceeded to review, in order, all thirty peremptory challenges
by the prosecution and defense.
She noted the race and gender of every
veniremember struck by both sides and, with respect to the State’s strikes, she
articulated the reasons for each strike, including for the seven white veniremembers
struck by the State. R. at 401–09. Regarding Eric Davis, Brooks stated the
following:
We then struck number one twelve, Eric Davis, was a black male,
according to our records twenty-three years old. He was extremely
vague to the Court’s questions about what he had heard. You might
remember he said well, I just heard a little something and he kept -well what did you hear? Where did you hear it? He said well, in the
paper or something. The Court asked him again. He was unclear and
then finally he said well, some people were talking about it. I never
really read the paper. He could not remember what he heard. He said
that he could go either way but he was not pro death penalty, and
personal observations of the attorneys.
R. at 407. Brooks concluded her summation by explaining that the State relied upon
“a compilation of information,” including the jurors’ responses to questioning, how
the jurors “look,” and whether they were “freely responding” or “hesitant” in their
answers. She also mentioned that prosecutors had obtained information about
jurors’ age, residences, employment, spouse’s employment, criminal histories, and
28
that they had gone over the juror lists with their case agent and “sheriff’s officers.”
R. at 410.
The defense requested disclosure of the prosecutors’ notes from jury selection
so that it could attempt to show that Brooks’s stated reasons for her strikes of black
veniremembers were pretext for discrimination. R. at 412. The trial court denied
this request. The lead defense attorney, Ron Wise, then examined Brooks at length
regarding her stated reasons for striking certain jurors. It was during this exchange
that Brooks made the pivotal remark that was the crux of petitioner’s Batson claim
before the state appellate courts.
Q.
Eric Davis, number one twelve?
A.
Was it a strike?
Q.
Correct. A black male.
A.
All right, sir.
Q.
Your reasons again for striking Mr. Davis?
A.
You want me to repeat them?
Q.
Yes, ma’am.
A.
Okay. Mr. Davis, according to my notes, is a black male,
approximately twenty-three years of age, which would put him very
close to the same race, sex, and age of the defendant. He had said to the
Court he had heard a little something. The Court questioned him further
and he finally said well, I heard it from the paper or something. The
Court questioned him further. He was very vague and unclear in his
answer. The Court asked him more about it and he said well, some
people were talking about it. I didn’t actually read it. He could not
remember what had been said nor anything about -- anything further
29
about those. His answers to the death penalty did not give me a lot of
clues either way as to how he felt. In fact, I think the words he used
were I could go either way.
Q.
Well, was the fact he said he could go either way a reason you
struck him, or was it because of the other reasons he gave, such as well,
he was vague as to what he had read or where he had heard it from or
what it was?
A.
Well, Mr. Wise, I didn’t just analyze it by one factor. The fact
that he did not appear as convincing and as if he’d given it a lot of
thought and was sure of how he felt was definitely a consideration, but
he wasn’t struck because of his death penalty views although that was
a factor. His vagueness and -- I don’t know if he didn’t understand the
Judge or if he just didn’t want to talk about it or wasn’t interested, I
didn’t know what it was, but I did not think that he was very clear on
where he stood about the publicity.
Q.
Ms. Brooks, isn’t it true that a substantial number of white people
stated in chambers that they had heard something about it, didn’t really
know exactly where they had heard it, really didn’t remember what they
had heard. Isn’t that true?
A.
I would not characterize it that way, no, sir. I don’t recall any
other juror, though, who changed his mind about where he had heard it.
He said he read it in the paper and then further questioning said well, I
didn’t read it in the paper, I heard it from some friends.
THE COURT:
Is that it?
MR. WISE: Just a minute, your Honor.
(Brief pause.)
MR. WISE: That’s all. Your Honor.
R. at 427–29 (emphasis supplied).
Wise then argued that Brooks had given
insufficient race-neutral reasons for her strikes, “in particular as to Eric Davis [.]”
The trial court was succinct: “Motion denied. Recess till eight.” R. at 429.
30
When trial resumed the following morning, the defense renewed its Batson
motion. The defense argued that, with respect to Davis and one other black male
juror, Brooks gave “no reason, no articulable reason, and I submit to you that she
can give no reason.” R. at 431. The defense also cited a news report describing
Brooks’s use of peremptory challenges to remove fourteen black jurors in another
trial only a week before petitioner’s trial. The defense argued the existence of a
“pattern and practice by the D.A.’s office of excluding blacks for reasons like
chewing gum, not dressing properly and being in the wrong neighborhood.” R. at
432. The defense requested leave to examine Brooks about her strikes in the earlier
trial, but the trial court declined to permit such questioning. R. at 433. The defense
again argued that a “pattern and practice” of discriminatory challenges was evident
and requested that the trial court “quash the venire” and impanel a new one. The
trial court again was succinct: “Motion denied. Are we ready now?” R. at 434.
In sum, the trial court held a Batson hearing in which it implicitly found that
the defense made a prima facie showing of racial discrimination. After hearing
Brooks’s stated reasons for her peremptory strikes and the defense’s argument in
response, the trial court summarily denied the defense’s Batson motion. The trial
court adhered to this ruling after the defense renewed its Batson motion and
31
presented additional argument about Brooks’s so-called “pattern and practice” of
discriminatory jury strikes in other cases.
c.
State Court Appellate Review
Although this court is to apply AEDPA’s standard of review to the ASC’s
decision denying petitioner’s Batson claim, the ACCA’s decision denying the claim
provides important context for understanding the ASC’s decision and, therefore,
warrants some review.
On direct appeal to the ACCA, petitioner argued that the trial court erred in
refusing to quash the venire as a result of his Batson motion. His brief raised prior
instances in which Brooks was found by Alabama’s appellate courts to have violated
Batson and further noted several instances in which, he argued, Brooks did not strike
white jurors for the same reasons that she gave for striking black jurors. He also
specifically raised the Davis strike and referenced Brooks’s remarks comparing the
race of Davis and petitioner as demonstrating that Brooks articulated a race-based
reason for her strike of Davis.
In its opinion, the ACCA noted the statistics underlying the State’s
peremptory strikes at petitioner’s trial. Sockwell, 675 So. 2d at 18. Regarding the
Davis challenge, the ACCA concluded that, in comparing the race of Davis and
petitioner, Brooks had articulated, in part, an explicitly racial reason for her strike.
32
Id. at 20. In addition, the ACCA found that Davis’s age and sex were not legitimate
bases for striking him because no jurors were questioned about age-related biases
and the “prosecution failed to establish that gender was relevant to the case.” Id.
Furthermore, “the prosecution did not strike white males of a similar age.” Id.
Nevertheless, the ACCA went on to find that Brooks also articulated a
“sufficiently race neutral reason” for the Davis strike when she cited his “vague”
responses to questions about what information he had learned about the case and
from where he had received his information. Id. The ACCA found that, “[u]nlike
other veniremembers, [Davis] appeared to be less than candid in regard to his
exposure to pretrial publicity. Specifically, [Davis] first stated that he had read about
the case and then stated that he had heard about the case.” Id. In essence, therefore,
the ACCA concluded that the trial court’s denial of petitioner’s Batson claim was
not clearly erroneous because, despite Brooks’s articulation of an explicitly racial
reason for her strike, she also articulated a sufficiently race-neutral reason for the
strike that it found corroborated by the record.
As mentioned previously, the ASC addressed petitioner’s Batson claim,
including the Davis strike, in a reasoned opinion. In short, the ASC affirmed the
ACCA’s decision but rejected its reasoning in reaching that decision. The ASC first
noted Brooks’s removal of eight of the ten black jurors in the venire. Ex parte
33
Sockwell, 675 So. 2d at 40. It then recited the pertinent parts of the state court record
respecting the Davis strike, including Brooks’s initial articulation of her reasons for
striking Davis, followed by her response under questioning from Wise when she
noted that Davis was “very close to the same race, sex, and age of the defendant.”
Id. The ASC then explained where it parted ways with the ACCA’s analysis:
We do not agree with the Court of Criminal Appeals that the
prosecutor’s opening remark identifying E.D. as a black man was given
as a reason for striking him from the venire; on the contrary, given the
context of the entire exchange, we conclude that this was merely a
descriptive identification of the veniremember based on the
prosecutor’s notes. When the prosecutor gave the reasons for striking a
veniremember, either white or black, she first prefaced her remarks by
stating the veniremember’s race and sex, as she did with E.D. The only
reasons the prosecutor gave for striking E.D. were his vagueness and
lack of candor in stating what he had already heard about the trial, from
what source he has gotten this information, and whether he could be
willing to recommend the death penalty.
Id. (emphasis in original).
The ASC went on to “emphasize [its] disagreement with the [ACCA’s]
inference that a peremptory strike may be upheld if it is based only partly on race,
that is, if the prosecutor articulates both a racially motivated reason and race-neutral
reason for a strike.” Id. (emphasis in original). According to the ASC, the ACCA
had erroneously found justification for this “inference” in state court precedent that
“cannot be read to suggest that a non-race-neutral reason given for a peremptory
34
strike will ‘cancel out’ a race-based reason[.]” Id. at 41 (citing Owens v. State, 531
So. 2d 22 (Ala. Crim. App. 1987) (emphasis in Sockwell).
The ASC concluded its reasoned discussion of the Davis Batson claim as
follows:
The trial court, which must be given great discretion in determining the
context in which race was mentioned, found that the strike was raceneutral. After considering the entire context of the prosecutor’s
explanation, we find no abuse of this discretion. The Court of Criminal
Appeals’ disposition of this issue was correct, although its rationale was
not.
Id. at 41. The ASC did not address several circumstances raised by petitioner in his
briefing, including Brooks’s history of Batson violations, his argument that Davis
was not vague or lacking in candor in his voir dire responses, and his claim that
Brooks did not strike white jurors who were similarly vague in their voir dire
responses.
d.
Petitioner’s Arguments Pursuant to § 2254(d)(1) and (2)
Petitioner alleges that the ASC’s decision denying relief on his Davis Batson
claim fails both prongs of § 2254(d)’s standard of review. He first argues that,
pursuant to § 2254(d)(2), the ASC made an unreasonable determination of fact at
step two of Batson when it found that Brooks’s remark comparing his and Davis’s
race was not a reason for striking Davis, but was, instead, “merely a descriptive
identification of the veniremember” based upon Brooks’s notes. He posits that, even
35
if Brooks’s first mention of Davis’s race in the relevant remarks (“Okay, Mr. Davis,
according to my notes, is a black male”) could reasonably be deemed merely a
descriptive identification of Davis, the second reference to Davis’s race (“which
would put him very close to the same race, sex, and age of the defendant”) cannot
be so reasonably construed. He argues that the “only plausible interpretation of that
statement is that the prosecutor struck Mr. Davis at least in part because she believed
that a juror of the ‘same race’ as Mr. Sockwell would be less likely to convict him—
precisely what the Constitution forbids.” Pet. ¶ 53.
With respect to § 2254(d)(1), petitioner alleges that the ASC unreasonably
applied Batson because it failed to properly conduct the third step of the Batson
analysis – evaluating Brooks’s race-neutral reasons for her strike of Eric Davis to
determine whether he established purposeful discrimination. Pet. ¶ 57.
Finally, petitioner claims that, pursuant to both prongs of § 2254(d), even if it
is determined that the ASC implicitly considered the relevant circumstances at step
three of Batson, its decision was an unreasonable application of Batson, and was
based upon unreasonable determinations of fact, because all relevant circumstances
“overwhelmingly demonstrated discriminatory intent.” Pet. ¶ 61. He identifies the
same three principal circumstances demonstrating such discriminatory intent that he
presented to the ASC: a) Brooks’s exclusion of 80% of eligible black
36
veniremembers; b) Brooks’s history of Batson violations; and c) that Brooks’s
supposedly race-neutral reasons for striking Davis were pretext for discrimination
because they are not supported by the record and the rationale supporting those
reasons applied equally to white veniremembers she did not strike. Id. at ¶¶ 62-68.
Each of these arguments is addressed in turn.
e.
Application
i.
The ASC reasonably concluded that Brooks did not
articulate a race-based reason for her strike of Davis.
Petitioner first challenges the ASC’s factual finding that Brooks’s mention of
Davis’s race and her comparison of the race of petitioner and Davis was not given
as a reason for striking Davis, but, instead, was merely a “descriptive identification”
of Davis that was joined with a “mention” of petitioner’s race and was all “part of
the same predicate of identification that she mentioned for all the veniremembers
she had struck, both white and black.” 675 So. 2d at 41. As noted previously, he
must rebut the ASC’s finding of fact with clear and convincing evidence in order to
overcome the statutory presumption of correctness of 28 U.S.C. § 2254(e)(1), and
he must show that the ASC’s erroneous finding of fact was “unreasonable” within
the meaning of § 2254(d)(2). Even if he succeeds in showing erroneous state court
factfinding by clear and convincing evidence, he “does not necessarily meet his
burden under § 2254(d)(2)” because, “[d]epending on the importance of the factual
37
error to the state court’s ultimate ‘decision,’ that decision might still be
reasonable[.]” Pye, 50 F.4th at 1035.
The only evidence that petitioner submits to satisfy his burden is the trial
transcript, the very evidence that was reviewed and interpreted by the ASC in its
opinion. This evidence, however, does not clearly and convincingly establish that
the ASC erred in its factfinding, much less that its decision was based upon an
unreasonable finding of fact. At least two compelling circumstances apparent in the
transcript inform this judgment.
First, rather than focusing upon the subject remark in isolation, which is
comprised of less than twenty words and was not subject to any further inquiry by
the trial court or the defense, the ASC reasonably considered the entire transcript of
voir dire when discerning what were Brooks’s reasons for her strike of Davis. By
the time Brooks made the subject remark, she had already plainly articulated a raceneutral reason for her strike of Davis—his vagueness on the question of his pretrial
exposure to information about the case—without drawing the racial comparison that
would later become the crux of petitioner’s Batson claim. And, immediately after
the subject remark, she repeated this same justification and expanded on it further
when questioned by defense counsel. The ASC was not unreasonable in considering
Brooks’s mention of Davis’s race and her racial comparison of Davis and petitioner
38
in this larger context when it found that the subject remark was not a reason for her
strike.
Second, while an interpretation of the subject remark holding it as a reason for
Brooks’s strike might be reasonable, as was found by the ACCA, it does not follow
that a contrary interpretation, as found by the ASC, is unreasonable. Petitioner posits
that Brooks’s remark was an unambiguous declaration of racial animus that she had
managed to conceal until questioned by defense counsel. Pet. ¶¶ 52–53. For
petitioner, Brooks’s remark was the functional equivalent of her declaring, “I struck
Eric Davis because he is a young black male like the defendant,” but, since “Batson
does not require such a superficial degree of specificity,” Doc. 26 at 2, the ASC was
unreasonable in failing to ascribe this meaning to it. While he concedes, for obvious
reasons, that it is “so rare for prosecutors to say expressly on the record that race has
factored into one their peremptory strikes.” id. at 1, he nevertheless alleges the ASC
was unreasonable in failing to conclude that this “rare” event in fact occurred at his
trial.
The ASC’s finding of fact, however, is bolstered here by the trial court record,
which shows that, at the time it was uttered, apparently no one, including the defense,
believed that Brooks had just committed the “so rare” act of admitting that she struck
a juror because of the juror’s race. This is significant because, in addition to the
39
Batson hearing record excerpts quoted above, the trial transcript shows that defense
counsel were highly attuned to Batson issues. For example, counsel argued before
jury selection commenced that the assembled venire was insufficiently
“representative of a cross-section of the community.” R. at 126. Counsel objected
and noted for the record when black jurors were challenged for cause. R. at 222,
287, and 311.
Counsel even objected when a black juror who expressed a
predisposition to convict was excused by the trial court. R. at 243, 247. Along with
counsel’s very capable and determined argument at the Batson hearing, these
instances show counsel’s vigilance in guarding against Batson violations and
building a record to support the Batson claim.
It is implausible in the face of this record that defense counsel would allow
the functional equivalent of Brooks declaring, “I struck Eric Davis because he is a
young black male like the defendant,” to pass without notice. Yet, this is exactly
what happened in petitioner’s version of events, as, overlooking Brooks’s purported
umambiguous declaration of her racial animus, counsel moved on to clarifying with
Brooks whether Davis was struck because of his views about the death penalty or
his vagueness about his exposure to pretrial publicity. It is more plausible that
counsel was focused on exploring the legitimacy of what everyone in the room
understood to be Brooks’s professed reasons for her strike, reasons that she had
40
articulated multiple times with consistency, and he therefore tailored his questioning
accordingly.6
At a minimum, a reviewing court reasonably would expect the “rare” and
likely dispositive admission that a prosecutor struck a juror because of the juror’s
race to be the subject of heightened inquiry and argument at the time it was made.
There is no subtlety in a prosecutor confessing her naked violation of Batson. The
fact that neither the trial court nor defense counsel timely raised, nor followed up
with, the specific objection to Brooks’s remarks that was later raised on appeal is
not, alone, dispositive of the Batson claim. It is, however, probative of whether
fairminded jurists—like those comprising the ACCA and the ASC—can disagree
about the meaning of the remarks. Thus, the ASC was not unreasonable for failing
to conclude that Brooks had been exposed in a sort of “Perry Mason moment” that
somehow went unnoticed until the appellate briefs were filed.
The core premise of the ASC’s opinion—the reason that the ASC issued a
written opinion at all—was to correct what it perceived as the ACCA’s erroneous
finding that Brooks’s reference to the race of Davis and petitioner was necessarily
given as a reason for her strike. The ASC clarified that the ACCA’s own precedent
6
Petitioner has not alleged that counsel performed ineffectively in failing to question
Brooks about her supposed race-based reason for her strike of Davis or argue to the trial
court that Brooks had offered a race-based reason for her strike.
41
recognized that a prosecutor’s “incidental” reference to race in a Batson proceeding
“‘does not, as a matter of law, establish purposeful discrimination.’” Ex parte
Sockwell, 675 So. 2d at 40–41 (quoting Owens, 531 So. 2d at 25).
Alabama’s appellate courts are not alone in concluding that a prosecutor’s
reference to race while defending against a Batson challenge does not necessarily
establish purposeful discrimination on the part of the prosecutor. Federal courts
have rejected similar claims, especially where review is circumscribed by AEDPA.
See, e.g., Cook v. LaMarque, 593 F.3d 810, 820–21 (9th Cir. 2010) (Batson claim
rejected in habeas despite that the prosecutor expressed a concern that, due to his
past experiences with racism and law enforcement, a black juror “might be inclined
to be sympathetic and leaning toward the defense in this case in light of the race of
two of the defendants”). There is some logic to this—a prosecutor’s reference to the
race of a challenged veniremember in a context where the prosecutor is accused of
racial discrimination and tasked with defending his or her conduct is not tantamount
to evidence of a prosecutor’s preoccupation with race that exists before a Batson
challenge. See Moore v. Vannoy, 968 F.3d 482, 491 (5th Cir. 2020) (“For obvious
reasons, it makes sense for a prosecutor to reference the juror’s race when
responding to a Batson challenge.”).
42
Nevertheless, in both the petition and in his updated, supplemental briefing,
petitioner cites federal appellate decisions for the “proposition that, when a
prosecutor references a juror’s race during a Batson challenge, such a comment
cannot be dismissed as ‘descriptive,’” as the ASC did in petitioner’s appeal. Doc.
49 at 9. In the petition, he cited the Second Circuit’s decision in Walker v. Girdlich,
410 F.3d 120 (2d Cir. 2005), and in the updated briefing he cited the First Circuit’s
decision in Porter v. Coyne-Fague, 35 F.4th 68 (1st Cir. 2022). Both decisions are
materially distinguishable.
In Walker, the prosecutor plainly stated, “one of the main things I had a
problem with was that this is an individual who was a Black man with no kids and
no family.” 410 F.3d at 121–22. As the Second Circuit found, “the prosecutor’s
words and phrasing adduce [the juror’s race and lack of family] as grounds for the
peremptory challenge rather than as an incidental description[.]” Id. at 124. In other
words, unlike here, the prosecutor’s remark very specifically identified the race of
the juror as a “main problem.” Nor could the prosecutor’s racial remark in Walker
reasonably have been interpreted as prefatory or part of a predicate of identification
in which the prosecutor mentioned the race and gender of all jurors, black and white,
when providing reasons for her strikes.
43
In Porter, the prosecutor, unprompted, explained that he struck the only black
veniremember in the panel essentially because he disbelieved the veniremember’s
testimony that potential “blow-back” he might receive at his job would not affect his
ability to serve impartially, and, furthermore, the prosecutor believed that any such
“blow-back” would accompany only a guilty verdict. 35 F.4th at 72. Crucially, the
prosecutor oriented his concern about the juror’s fear of repercussions in the shared
race of the veniremember and the defendant: “Essentially, what he was saying is
that—and, again, this is the State’s take—he’s a member of the African-American
community, the defendant at the bar is a member of the African-American
community, he’s the only one on the panel who is, and if he were to vote guilty there
could be consequences to it.” Id.
In Porter, unlike here, the mention of the veniremember’s race and the racial
comparison invoked by the prosecutor was not prefatory in nature. Rather, it
occurred in the middle of the prosecutor’s explanation of his reason for the strike,
and, as found by the First Circuit, it was offered as a way of explaining and
amplifying the rationale the prosecutor was attempting to provide: “[T]he record
shows that the prosecutor’s racial observation underpinned the chief reason given
for the strike: the assumption that Juror 103 was predisposed against a guilty verdict
in particular.” Id. 80–81.
44
Here, by contrast, Brooks’s mention of Davis’s race and her comparison of
the race of Davis and petitioner plainly had nothing to do with the proffered reasons
for her strike. Brooks did not offer Davis’s race, or his racial affinity with petitioner,
as “underpinning” for her concern that Davis was unduly vague in his voir dire
responses about pretrial publicity. In short, Brooks’s racial remarks were either, as
petitioner has argued, a separate and independent reason for her strike, i.e., the real
reason, or, as found by the ASC, something else. Because Brooks’s racial remarks
cannot reasonably be read as amplification or support for a putative race-neutral
reason for her strike, Porter does not advance petitioner’s claim that the ASC based
its decision upon an unreasonable determination of fact.
So, allowing that a prosecutor may reference a juror’s race without dooming
her defense of striking that juror, it is easy to conclude that the ASC did not
unreasonably find that Brooks’s mere reference to Davis’s race was not a reason for
her strike of Davis. Brooks’s further comparison of the race, sex, and age of Davis
and petitioner is, of course, more problematic. Petitioner has argued that the ASC
failed to engage with his claim that Brooks’s comparison of the race of Davis and
petitioner demonstrates her racial animus. See Doc. 26 at 12. This is a fair point.
The ASC addressed Brooks’s reference to Davis as a black male and reasonably
concluded that it was a descriptive identification consistent with Brooks’s practice
45
of noting the race and gender of other jurors, black and white, that were struck by
both parties. The ASC had little to say, however, about Brooks’s racial comparison
except to characterize it as a “mention of Sockwell’s race” that was “part of the same
predicate of identification that she mentioned for all the veniremembers that she had
struck.” 675 So. 2d at 41. This explanation is not persuasive. Brooks’s “mention”
of petitioner’s race while explaining the Davis strike is the only time in the transcript
that Brooks mentioned petitioner’s race and, more concerning, is the only time she
compared the race of a juror with that of petitioner.
The question for this court, however, is not whether it agrees with the ASC.
The question, instead, is whether the ASC reasonably reached its decision. This
inquiry entails considering any potential justification that supports the ASC’s
ultimate decision, including those not explicated by the ASC. As set forth above,
the ASC reasonably could, and did, determine that, viewing the record holistically,
Brooks’s racial remarks, including her racial comparison, were not reasons for her
strike of Davis. While the record offers support for a contrary conclusion, it does
not dictate that only the contrary conclusion is reasonable. The record does not
render unreasonable a conclusion that Brooks’s racial comparison was incidental,
surplusage, or simply an extemporaneous, if ill-advised, descriptive observation that
Davis and petitioner were of the same race, sex, and age, but that this observation
46
conveyed no particular animus toward any of those traits.7 Under the deferential
regime of AEDPA that controls here, and in the absence of any contemporaneous
follow-up by defense counsel, that is all that is required to sustain the ASC’s
factfinding.
Finally, the record does not establish that, even if Brooks’s racial comparison
demonstrates some untoward racial consciousness in her strike of Davis, and that the
ASC erred in finding otherwise, the ASC’s ultimate decision denying the Batson
claim was unreasonable. This is so because, as a matter of clearly established federal
law at the time of the ASC’s decision, which is what this court is charged with
applying while reviewing the ASC’s decision, nothing in Batson prohibited the ASC
from considering whether, even if Brooks was motivated in part by race, she still
would have struck Davis for race-neutral reasons.
7
And, to the extent Brooks’s comparison of the identity traits of Davis and petitioner
should be construed as a reason for the strike, their similarity in age cannot be extracted
from that inquiry. A juror’s closeness in age to the defendant can be a legitimate, nondiscriminatory reason for exercising a strike. See McNair v. Campbell, 307 F. Supp. 2d
1277, 1300 (M.D. Ala. 2004) (denying Batson claim challenging the prosecutor’s strike of
four black potential jurors due to their closeness in age to the defendant), aff’d in part and
rev’d in part, 416 F.3d 1291, 1312–13 (11th Cir. 2005) (affirming denial of Batson claim).
If Brooks’s comparison is treated as a reason for her strike, it was incumbent on petitioner
to prove to the state courts that Davis’s age was not the identity trait that motivated Brooks
to strike Davis, and it is incumbent on him to prove to this court that the ASC could not
have reasonably concluded that Davis’s age, rather than his race or sex, was the actual
reason for the strike.
47
As observed by the ACCA, Batson itself states that the Equal Protection
Clause “forbids the prosecutor to challenge potential jurors solely on account of their
race or on the assumption that black jurors as a group will be unable impartially to
consider the State’s case against a black defendant.” 476 U.S. at 89 (emphasis
supplied). The Supreme Court repeated this formulation in a holding issued after
Batson but prior to the ASC’s decision on petitioner’s appeal. See Powers v. Ohio,
499 U.S. 400, 409 (1991) (“We hold that the Equal Protection Clause prohibits a
prosecutor from using the State’s peremptory challenges to exclude otherwise
qualified and unbiased persons from the petit jury solely by reason of their race[.]”)
(emphasis supplied).
Taking account of this holding, some federal appellate courts, including the
Eleventh Circuit, adopted a “dual motivation analysis” to test whether a Batson
violation occurs when the prosecutor considers race along with race-neutral reasons
when exercising a peremptory challenge. See, e.g., Wallace v. Morrison, 87 F.3d
1271, 1274 (11th Cir. 1996).
Under dual motivation analysis, after the party raising the Batson claim
has established a prima facie case that discrimination was a substantial
part of the motivation for a strike, the party who exercised the strike
may raise the affirmative defense that the strike would have been
exercised solely for race-neutral reasons. The party accused of
discrimination bears the burden of showing by a preponderance of the
evidence that the strike would have been exercised in the absence of
any discriminatory motivation.
48
Id. at 1274–75.8
To be sure, the ASC disavowed any dual motivation analysis in its decision,
holding that prior ACCA authority “cannot be read to suggest that a non-race-neutral
reason given for a peremptory strike will ‘cancel out’ a race-based reason[.]” Ex
parte Sockwell, 675 So. 2d at 41 (emphasis in Sockwell). Although the ASC thus
disagreed with the “inference that a peremptory strike may be upheld if it is based
only partly on race[,]” id. at 40, clearly established federal law at the time of the
ASC’s decision did not preclude it from evaluating the record to determine whether,
notwithstanding Brooks’s consideration of race, she still would have struck Davis
absent any consideration of his race.
For the reasons that will be discussed more fully below—namely, the
legitimacy of Brooks’s race-neutral reasons for the Davis strike—the record before
8
In Snyder v. Louisiana, 552 U.S. 472, 485 (2008), issued more than a dozen years after
the ASC’s decision in petitioner’s appeal, the Supreme Court declined to clarify whether
“dual motivation analysis” comports with Batson:
In other circumstances, we have held that, once it is shown that a
discriminatory intent was a substantial or motivating factor in an action taken
by a state actor, the burden shifts to the party defending the action to show
that this factor was not determinative. See Hunter v. Underwood, 471 U.S.
222, 228 (1985). We have not previously applied this rule in a Batson case,
and we need not decide here whether that standard governs in this context.
For present purposes, it is enough to recognize that a peremptory strike
shown to have been motivated in substantial part by discriminatory intent
could not be sustained based on any lesser showing by the prosecution.
49
the ASC reasonably supports the conclusion that, under a dual motivation analysis,
even if Brooks considered Davis’s race while striking him, Brooks did not violate
Batson because Davis’s race was not a substantial motivation, much less the “sole”
reason, for her strike. Accordingly, the ASC’s ultimate disposition is justified even
if it erroneously decided that Brooks gave a race-based reason for the Davis strike.
ii.
The ASC did not unreasonably apply Batson by failing to
conduct Batson’s third step.
Petitioner next alleges that the ASC unreasonably applied Batson because it
failed to conduct Batson’s third step and determine whether he established
purposeful discrimination respecting the Davis strike. Pet. ¶ 57. In support, he
argues that the ASC “stopped immediately after step 2” when it deferred to the trial
court’s finding that Brooks’s stated reasons for the Davis strike were race neutral.
Id. at ¶ 58. He claims that the ASC “did not even purport to consider any” of the
relevance circumstances informing his claim of Batson error, as is required by
Batson. Id. at ¶ 59 (emphasis in original). He also asserts that the ASC could not
have implicitly considered the relevant circumstances at Batson’s third step because
the ASC “explicitly” closed its analysis at step two with respect to the Davis strike
but went on to perform a step three analysis with respect to the prosecutor’s strikes
of other veniremembers. Id. at ¶ 60. He specifically faults the ASC for failing to
consider the following relevant circumstances in its decision: a) the prosecutor’s
50
disproportionate exclusion of blacks from the venire; b) Brook’s history of Batson
violations, as reflected in state court appellate opinions; and c) the pretextual nature
of Brooks’s race-neutral reasons for the Davis strike. Id. at ¶¶ 62–68.
As discussed previously, under Batson, “[t]he trial court must consider all
relevant circumstances at the third step[.]” King, 69 F.4th at 868. Batson does not,
however, impose any particular opinion writing requirement on the state court in
order for its decision to receive AEDPA deference:
When a court considers a Batson claim in an appeal or a state habeas
proceeding, the state court’s written opinion is not required to mention
every relevant fact or argument for its merits determination to receive
deference on review by a federal court. Instead, the petitioner must
prove that the state court failed to consider that argument or fact.
Id. (quotations and citations omitted). This is so even where the state appellate court
does not “explicitly mention[] Batson’s third step” and makes “no explicit findings
about the prosecutor’s credibility or about discriminatory purpose, or anything at all
relating to that step.” Lee v. Comm’r, Alabama Dep’t of Corr., 726 F.3d 1172, 1215–
16 (11th Cir. 2013). In such circumstances, federal courts may make a “common
sense judgment” that a state court’s rejection of a Batson claim following the state’s
proffer of race-neutral reasons represents an implicit finding that the state’s
explanations are credible and, accordingly, completes step three of Batson. Id. at
1216–17. See also Hightower v. Terry, 459 F.3d 1067,1072 n.9 (11th Cir. 2006).
51
Here, petitioner cannot surmount King’s directive that he prove that the ASC
failed to consider the facts and circumstances he raised before that court. While he
correctly argues that the ASC offered no explicit reference to those circumstances in
its discussion of the Davis strike, the above authorities relieve the ASC of any such
requirement. King, 69 F.4th at 869 (“A petitioner must do more than prove that the
state court failed to ‘mention’ evidence in order to prove that the state court failed
to consider that evidence.”). More to the point, he parses the ASC’s opinion too
finely for AEDPA purposes. For example, while petitioner accuses the ASC of
closing its analysis of the Davis strike after step two, a fair reading of the opinion
does not require that conclusion. To be sure, the thrust of the ASC’s opinion
regarding the Davis strike was to convey its conclusion that the ACCA’s factfinding
was flawed, as outlined above. But nothing in the opinion unambiguously confirms
that the ASC did not implicitly consider petitioner’s other arguments regarding the
Davis strike. Id. (“Nothing in the Supreme Court of Georgia’s opinion suggests that
it did not consider [relevant circumstances raised by King] . . . , so we must presume
that the court did consider the circumstances King cites.”).
Indeed, the opinion can fairly be read to proceed beyond step two of Batson
for at least two reasons. First, at the close of the step three analysis that petitioner
concedes the ASC performed respecting the strikes of four other black
52
veniremembers, the ASC remarked as follows: “After carefully reviewing the record
as it relates to the prosecutor’s peremptory strikes, we must conclude that it does not
establish that the prosecutor engaged in disparate treatment in the striking of black
persons and the striking of white persons.” Ex parte Sockwell, 675 So. 2d at 42.
This passage connotes no limitation to only the four black veniremembers that the
ASC discussed in the previous paragraphs. In referring broadly to “the record” of
the “prosecutor’s peremptory strikes,” and finding no “disparate treatment in the
striking of black persons and the striking of white persons,” the opinion fairly
suggests that the ASC considered all of the record, including that pertaining to Davis,
when it found no disparate treatment in the striking of black and white
veniremembers.
Second, in concluding its opinion, the ASC noted that petitioner had raised
issues “that either were not before the Court of Criminal Appeals or were not
addressed in its opinion.” Id. (emphasis supplied).9 The ASC plainly stated that it
“thoroughly considered each issue Sockwell has raised . . . [and] independently
9
Petitioner also accuses the ACCA of failing to conduct Batson’s step three analysis
regarding the Davis strike because its opinion is devoid of a positive indication that it did
so. See Pet. ¶ 58.
53
searched the record for reversible error, considering the applicable law as it relates
to the facts of the case, and have found none.” Id.10
Where the ASC thus explicitly professed to have “thoroughly considered” and
rejected all issues that were raised by petitioner, including those not mentioned in
the ACCA’s opinion, which necessarily includes petitioner’s arguments about step
three of Batson as it relates to the Davis strike, petitioner cannot meet his burden of
proving that the ASC did not consider the relevant circumstances he faults the ASC
for failing to mention in its opinion. Instead, the governing principles of AEDPA
require this court to treat the ASC’s decision as having implicitly considered, and
rejected, the arguments petitioner raised before that court, notwithstanding the
ASC’s failure to address those arguments in its opinion. Accordingly, this court
cannot conclude that the ASC unreasonably applied Batson by failing to conduct
step three of the Batson analysis.
iii.
The ASC’s implicit step three analysis did not
unreasonably apply Batson and was not based upon an
unreasonable determination of the facts before the ASC.
Petitioner’s final contention in support of his Batson claim is that any implicit
Batson step three determination by the ASC constituted an unreasonable application
10
Petitioner’s brief in support of his petition for certiorari in the ASC raised, among other
circumstances, his claim that Brooks’s race-neutral reasons for the Davis strike were
pretextual. See Doc. 14-12 at 48-50.
54
of Batson, or was based upon an unreasonable determination of the facts by the ASC,
because all the relevant circumstances before the ASC “overwhelmingly
demonstrated discriminatory intent.” Pet. ¶ 61. As set forth in the petition, and as
discussed previously, those circumstances include Brooks’s disproportionate strikes
of black veniremembers at petitioner’s trial, her record of Batson violations, and the
pretextual character of her race-neutral reasons for striking Davis.
Regarding the first of these circumstances, it is evident that Brooks
disproportionately struck black veniremembers at petitioner’s trial. As discussed
previously, she used eight of her fifteen peremptory challenges to remove eight of
ten eligible black veniremembers. Petitioner’s updated briefing capably illustrates
that Brooks’s “challenge rate” for black veniremembers “was more than triple the
rate for white jurors” and the “exclusion rate for black jurors (80%) was almost
quadruple the rate for white jurors (21.9%).” Doc. 49 at 15. Although Brooks’s
disproportionate strikes of black veniremembers was not expressed to the ASC in
terms of “challenge rate” and “exclusion rate,” the core statistics from which these
rates are derived were before the ASC, which noted in its opinion that Brooks
peremptorily struck eight of ten black veniremembers. See 675 So. 2d at 40.
Brooks’s disproportionate exclusion of black veniremembers is a relevant
55
circumstance probative of petitioner’s Batson claim that the ASC was required to
consider. See, e.g., Miller-El v. Dretke, 545 U.S. 231, 240–41 (2005).
It is also evident that, regarding the second relevant circumstance identified
by petitioner, around the time of his trial, several convictions secured by Brooks
were reversed due to her discriminatory exclusion of black veniremembers. The
petition cites five state court appellate decisions issued from 1988 through 1992 in
which convictions secured by Brooks were reversed on Batson grounds. Pet. ¶ 64.
Brooks’s Batson history is also a relevant circumstance probative of petitioner’s
Batson claim that the ASC was required to consider. See, e.g., Miller-El, 545 U.S.
at 266; Flowers v. Mississippi, 139 S. Ct. 2228, 2243 (2019).
Brooks’s disproportionate strikes and history of Batson violations only go so
far, though. Petitioner still must show that Brooks discriminated against Davis based
upon his race. The Eleventh Circuit’s recent King decision is instructive on this
point. There, the prosecutor used seven of his ten peremptory strikes to remove
seven of the eight eligible black veniremembers in a pool of forty-two potential
jurors. 69 F.4th at 863. In addition, the prosecutor in King was found by the trial
court to have violated Batson with one of his seven peremptory challenges. Id.
When the trial court made this ruling, the prosecutor launched into a “‘soliloquy’”
56
in which he disparaged Batson and complained about its effects on criminal trial
practice. Id. at 863–64.
The Court of Appeals in King was therefore faced with what it conceded was
a “troubling” record: the prosecutor employed a plainly disproportionate pattern of
peremptory strikes, was openly hostile to Batson, and, indeed, was found to have
violated Batson at the underlying trial. Id. at 868. Nevertheless, the Court of
Appeals rejected King’s Batson claim because, examining each of the challenged
strikes individually, the Court of Appeals could find no instance in which the
Supreme Court of Georgia unreasonably adjudicated the facts regarding the
prosecutor’s peremptory challenges. Id. at 870–73. So, disproportionate strikes and
a problematic Batson history, while similarly “troubling,” cannot carry the day for
petitioner. He still must show that the ASC unreasonably adjudicated the facts in its
rejection of his Davis Batson claim.
Petitioner “faces a high hurdle at this stage.” King, 69 F.4th at 870. He must
provide clear and convincing evidence that the ASC erroneously credited Brooks’s
race-neutral reasons for her strike of Davis. He cites two reasons why the ASC
unreasonably adjudicated the facts: Brooks’s race-neutral reasons are not supported
by the record and the rationale she articulated applied equally to white
57
veniremembers she did not strike. Pet. ¶¶ 66–68. The court will consider each
argument in turn.
On the first point, the ASC did not unreasonably adjudicate the facts when it
found credible Brooks’s assertion that Davis was “extremely vague” in his voir dire
testimony about his exposure to pretrial publicity. In general, a juror’s difficulty in
answering questions, especially on an important topic like bias due to pretrial
publicity or the juror’s feelings about capital punishment, is a legitimate, raceneutral reason for a peremptory challenge of the juror. See Atwater v. Crosby, 451
F.3d 799, 807 (11th Cir. 2006). Davis’s testimony, previously reproduced in full,
supports Brooks’s charge because it demonstrates the considerable difficulty faced
by the trial court in securing clear answers to the rudimentary questions of what,
specifically, Davis knew about the case from his pretrial exposure to publicity and
from what source he learned his information.
As Brooks observed under questioning by Wise, Davis kept saying that he had
“heard something” about the case, including about the guilt of petitioner, but
appeared to be unable, or unwilling, to articulate what he had heard. When the trial
court first asked Davis to provide specifics of what he had heard, he was vague, if
not evasive: “Oh, I just, um, it was something in the newspaper or something.” R.
at 341. After the trial court clarified that Davis had heard from others who read the
58
newspaper, rather than reading it himself, the trial court asked Davis if he
remembered what he had heard. Again, Davis was vague: “Not exactly.” When the
trial court finally cornered Davis on the question of what, specifically, he had heard,
Davis still was inherently vague: “Um, the only thing I recall is just, you know, um,
listening at some of the guys, you know, that said they had read about it, you know,
the incident out on Troy Highway, stuff like that, you know, what had happened and
so forth, you know.” R. at 342.11
In short, Davis was presented with many natural opportunities to clearly state
that he had heard mention of the case from others but that he could not remember
anything specific about what he had heard. Many other jurors expressed similar
sentiments plainly, without the need of an extended, unsatisfying colloquy. Instead,
he persisted in failing to explain the “something” that he had heard or simply stating
that he could not remember what the “something” was.
Brooks was unsure whether Davis’s difficulty with answering the judge’s
questions was because Davis “didn’t understand the Judge or if he just didn’t want
11
Even this answer by Davis appears unresponsive to the question of what, specifically, he
had heard from others before trial. Before conducting individual voir dire, the trial court
informed the venire that the trial concerned “the accusation that the defendant shot Isaiah
Harris . . . near the Troy Highway, in the head with a shotgun . . . in exchange for money
allegedly paid to him by Mr. Harris’ wife, Louise Harris, by her boyfriend.” R. at 168. So,
Davis revealed nothing about what he had “heard” from his pretrial sources that he would
not have already learned in court that morning.
59
to talk about it or wasn’t interested,” R. at 428, but her abiding concern about Davis’s
vagueness is amply supported by the transcript.
No doubt, there may be an
innocuous explanation for Davis’s vagueness, including the one offered by Brooks,
that perhaps Davis did not understand the judge’s questions. But Brooks reasonably
found Davis’s vague testimony peculiar, and she reasonably could have inferred that
he was being less than forthright about his exposure to pretrial publicity.
Consequently, the ASC did not unreasonably adjudicate the facts to the extent it
implicitly found credible Brooks’s claim that Davis was struck because of his
vagueness.
Petitioner’s second point—that Brooks did not strike white jurors who were
similarly vague as was Davis—fares no better because the only white jurors he
identified as comparators in his briefing to the ASC, Lisa Burch and Peggy
McFarlin, were not similarly vague. As recounted in the petition, see Pet. ¶ 68, both
of these jurors acknowledged having previously heard about the case. Burch
testified that she “briefly” “heard it on the news.” R. at 273. Unlike Davis, who at
first testified that he had “heard something” about whether petitioner was guilty or
not, Burch unequivocally answered “no” to the same question. Id. Burch was
forthright about her inability to “remember in full detail what [she] heard” from the
news. R. at 274. Her answers did not repeatedly and obliquely hint that she had
60
heard “something” that she appeared reticent to reveal. Although, like Davis, she
ultimately could not remember what she had heard about the case on the news, it is
evident that her testimony was not “vague” in the same sense as was that of Davis.
McFarlin, too, was unlike Davis. She unequivocally stated that she had
learned about the case “[i]n the paper.” R. at 319. Unlike Davis, who, again, at first
claimed to have heard “something” about whether petitioner was guilty or not,
McFarlin could not remember if she had heard any such information. Id. She was
clear that she could “barely remember the story” and did not “remember how it
ended.” Id. She had only “read a little bit of it in the paper and [she didn’t] know
what [petitioner had] done.” Id. Nothing in McFarlin’s testimony, unlike with
Davis, was vague or suggestive of an effort not to reveal what she knew about the
case.
While it can fairly be said that Davis, McFarlin, and Burch were alike in that,
ostensibly, they remembered little of what they had heard or read about the case
before trial, that is where the similarities end. Davis’s voir dire testimony is
characterized by the trial court’s protracted effort to get Davis to clearly state what
he had heard about the case before coming to court. After many fits and starts, it
ended pretty much where it began: Davis had heard “something” but it still was
unclear what that “something” was. Burch and McFarlin were upfront and clear that
61
they had consumed earlier media reports about the case, but that they could not
remember specifics from those reports.
The ASC’s decision that Brooks’s
vagueness rationale for the Davis strike did not apply equally to Burch and McFarlin
was not an unreasonable determination of the facts based upon the record before the
ASC.
For all of the foregoing reasons, the ASC did not unreasonably apply Batson,
and its decision denying petitioner’s Batson claim was not based upon an
unreasonable determination of fact. Accordingly, Claim One is due to be denied.
2.
Claim Two
Claim Two is petitioner’s claim that the trial court violated his Sixth and
Fourteenth Amendment right to present witnesses in his defense by permitting
Louise Harris to invoke her Fifth Amendment privilege against self-incrimination
and refuse to answer questions at his trial. As stated previously, this claim was not
presented to the ACCA on direct appeal of petitioner’s conviction and sentence, but
was summarily denied on the merits by the ASC in its opinion affirming petitioner’s
conviction. Thus, there is no reasoned state court appellate decision denying the
claim. Nevertheless, this court still must determine whether the ASC’s summary
decision is “contrary to, or involved an unreasonable application of, clearly
established Federal law” or is “based on an unreasonable determination of the facts
62
in light of the evidence presented in the State court proceeding.” § 2254(d)(1) &
(2). To resolve this question, this court “must determine what arguments or theories
supported, or . . . could have supported, the state court decision; and then it must ask
whether it is possible fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision of” the United States
Supreme Court. Harrington, 562 U.S. at 102.
a.
Clearly Established Federal Law
Two important constitutional rights are germane to petitioner’s claim. The
Fifth Amendment to the U.S. Constitution declares in part that “[n]o person . . . shall
be compelled in any criminal case to be a witness against himself.” U.S. CONST.
amend V. The Sixth Amendment establishes the right of a criminal defendant “to
have compulsory process for obtaining witnesses in his favor.” U.S. CONST. amend.
VI. Petitioner’s claim is about how state courts are to resolve the conflict when
presented with competing assertions of these two fundamental rights.
Petitioner cites Washington v. Texas, 388 U.S. 14 (1967), as the generally
applicable clearly established federal law outlining his Sixth Amendment right to
present witnesses in his defense. There, a criminal defendant challenged on Sixth
Amendment grounds Texas statutes under which “persons charged or convicted as
coparticipants in the same crime could not testify for one another.” Id. at 16. The
63
Supreme Court held that the Sixth Amendment right of compulsory process is
applicable to the States under the Fourteenth Amendment and that the Texas statues
at issue infringed the Sixth Amendment because they permitted the State to
arbitrarily deny the accused’s “right to put on the stand a witness who was physically
and mentally capable of testifying to events that he had personally observed, and
whose testimony would have been relevant and material to the defense.” Id. at 19,
23.
Washington described the importance of the protection afforded by the Sixth
Amendment’s compulsory process clause:
The right to offer the testimony of witnesses, and to compel their
attendance, if necessary, is in plain terms the right to present a defense,
the right to present the defendant’s version of the facts as well as the
prosecution’s to the jury so that it may decide where the truth lies.
Id. at 19. The right recognized in Washington is not absolute, however. In particular,
as observed by petitioner, the “defendant’s right to call witnesses on his behalf can
be overcome by the witness’s invocation of the Fifth Amendment privilege against
self-incrimination, if that invocation is legitimate.” Pet. ¶ 80 (citing Washington,
388 U.S. at 23 n.21) (emphasis removed). Indeed, “the Fifth Amendment privilege
against compulsory self-incrimination” is “the most important” exemption to a
defendant’s Sixth Amendment right to compel testimony. Kastigar v. United States,
406 U.S. 441, 444 (1972).
64
As the Supreme Court stated in Kastigar, the Fifth Amendment privilege “can
be asserted in any proceeding, civil or criminal, administrative or judicial,
investigatory or adjudicatory; and it protects against any disclosures which the
witness reasonably believes could be used in a criminal prosecution or could lead to
other evidence that might be so used.” Id. at 444–45 (citations omitted). The
question, then, is how a court is to determine when a witness’s invocation of his or
her Fifth Amendment privilege is reasonable such that it may overcome a
defendant’s right to present the witness’s testimony.
Petitioner cites Hoffman v. United States, 341 U.S. 479 (1951), as the clearly
established federal law governing the determination of whether a witness has
“validly asserted the privilege against self-incrimination.” See Pet. ¶¶ 80–81.
Hoffman involved a grand jury witness, Samuel Hoffman, who was “convicted of
criminal contempt for refusing to obey a federal court order requiring him to answer
certain questions asked in a grand jury investigation.” 341 U.S. at 480. “It was
stipulated that [Hoffman] declined to answer on the ground that his answers might
tend to incriminate him of a federal offense.” Id. at 482.
The Supreme Court first explained that the privilege extends not just to
“answers that would support a conviction[,]” but also to “those which would furnish
a link in the chain of evidence needed to prosecute” the witness invoking the
65
privilege.
341 U.S. at 486.
The Court emphasized, however, that the Fifth
Amendment privilege’s “protection must be confined to instances where the witness
has reasonable cause to apprehend danger from a direct answer.” Id. Hoffman places
the onus on the court to ascertain whether a witness’s invocation of the privilege is
reasonable.
The witness is not exonerated from answering merely because he
declares that in so doing he would incriminate himself—his say-so does
not of itself establish the hazard of incrimination. It is for the court to
say whether his silence is justified, and to require him to answer if it
clearly appears to the court that he is mistaken. . . . To sustain the
privilege, it need only be evident from the implications of the question,
in the setting in which it is asked, that a responsive answer to the
question or an explanation of why it cannot be answered might be
dangerous because injurious disclosure could result.
Id. at 486–87 (citations omitted). Importantly, in assessing the validity of a witness’s
invocation of his or her Fifth Amendment privilege, the presiding judge “must be
governed as much by his personal perception of the peculiarities of the case as by
the facts actually in evidence.” Id. at 487 (citation and quotation omitted).
b.
Proceedings in the Trial Court
The defense subpoenaed Louise Harris to testify in the guilt phase at
petitioner’s trial. As related in the petition, the defense intended to have Harris
essentially replicate the testimony she gave in her own defense at her previous trial.
Pet. ¶ 76. That testimony—that she gave money to McCarter to pay petitioner for a
66
car repair, not to kill her husband—was exculpatory as to Harris and, by extension,
petitioner. The defense and the trial court quickly learned, however, that Harris did
not intend to offer such testimony at petitioner’s trial. While the trial court was
conducting individual voir dire of potential jurors, Harris’s attorney, Bryan
Stevenson, addressed the court and apprised it of Harris’s intentions:
Judge Thomas, I’m Bryan Stephenson. I represent Louise Harris, and
she was brought over here today to testify, I think on a subpoena issued
by the defense. She is not willing to testify and would assert her Fifth
Amendment right. And I was just wondering if we could have her sent
back to Tutwiler. I don’t know if there’s an Order from the Court.
R. at 190.
The trial judge asked the defense if it wanted to put Harris on the stand to
assert her Fifth Amendment right. The defense answered affirmatively and further
argued that Harris should be made to do so before the jury. R. at 191. The defense
also asserted that Harris had waived her Fifth Amendment privilege by testifying at
her previous trial, which resulted in a conviction and death sentence. The defense
recognized, however, the practical limitations of the court’s ability to compel Harris
to answer questions:
She has, in our opinion, waived her Fifth Amendment Right by her
previous testimony, but irrespective of that, she hasn’t got to testify if
she don’t want to by other grounds, but I want the jury to hear her
invoke her Fifth Amendment Right.
...
67
I don’t think she has one to begin with, but if she refuses all you can do
is put her in jail and she’s there already.
R. at 191–92. With that, the trial judge requested that Stevenson make himself
available when the defense called Harris to the stand and proceeded with individual
voir dire.
The issue was revisited during trial when the prosecution moved in limine to
prevent the defense from calling Harris to the stand knowing her intent to assert her
Fifth Amendment privilege in front of the jury. R. at 773. Brooks argued that the
defense should not be permitted to “call a witness merely to prejudice the jury.” R.
at 773. The following exchange occurred:
[Defense attorney] MR. WOOD: Well, your Honor, we expect to
call Louise Harris. She testified in her own defense, and we have no
reason to believe, other than Bryant [sic] Stevenson said she was
going to invoke the Fifth in your Honor’s presence. We’d like to
have her come and do that. Our position is as we told you, is that
she waived any such privilege having testified. If she takes that
position I think in light of the fact that Michael Sockwell is accused
with her in this case we ought to be able to read portions of her
testimony from the prior trial. She’s waived it. I certainly have a
right to call her and see if that’s what she does.
MS. BROOKS: Your Honor, the case of Douglas [ v. Alabama]
speaks to that, and it says that if you waive your Fifth Amendment
Right for one trial you do not automatically waive it for subsequent
trials when your own case is on appeal, as hers clearly is. We would
suggest to the Court – and I don’t dispute if the defense says this –
if they have no reason to believe that the witness will take the Fifth
then we ask for an out of presence hearing from the witness on
whether or not he or she intends to take the Fifth Amendment. If he
68
or she does then we’re all on notice and there won’t be any
prejudice. If they say they don’t, then of course our motion is
improper.
. . .
THE COURT: They probably could, even if the law is [sic] that she
can claim the Fifth[,] I think they would probably be able to
introduce her testimony.
MS. BROOKS: Judge, we considered that as well, and because the
parties were different and the issues are different as to the
involvement of Michael Sockwell and it was State versus Louise
Harris, not Michael Sockwell that she testified before and the
attorneys were different, we don’t think it would have been
admissible, just like Mr. McCarter’s testimony is not in and of itself
admissible right now.
. . .
MR. WOOD: Your Honor, . . . we believe that the denial to this
defendant of the right to call Louise Harris . . . will be a violation
of his right under the United States Constitution Amendments Five,
Six, Eight, Nine, and Fourteen, as applied to the States and under
Constitution of Alabama Article One Section Six. Now, that’s
especially true where this jury has already heard, as I pointed out
earlier, under a conspiracy theory, all kinds of stuff from officers
about what Bobo said or about what Louise said. We have a right
to call them. If they take the Fifth then let ‘em take the Fifth, but
this defendant is prejudiced if we don’t get that opportunity, and I
believe that this Court, even under Douglas, is subject to being
reversed on that point alone.
MS. BROOKS: Judge, our position is not that they don’t have a
right to call, but it should be done out of the presence of the jury to
determine whether or not the witness will take the Fifth. If the
witness indicates that he or she will then the witness is being called
not to solicit testimony, but to prejudice the jury, which is clearly
improper.
MR. WOOD: Your Honor, the converse of that is true. If we don’t
call them and if the jury is not aware of an attempt to call them then
69
we’re prejudiced by it. We’re prejudiced in that we don’t try to
show anything different from what they’ve already been told that
these officers say they said.
. . .
THE COURT: Okay. I’ve got two questions before me. One, can
you call them and see if they’re going to plead the Fifth and how
that’s done, whether it’s done out of the presence of the jury or
before, and the other question is . . . whether or not if the plead the
Fifth, some testimony that was illicited [sic] in a prior trial could be
admissible here.
MR. WISE: Your Honor, I think there’s a further question, if I could
say it. . . . Mrs. Harris does not have the right to take the Fifth
Amendment unless it would incriminate her. We can ask her her
name, we can ask her where she lives, we can ask her if she was the
wife of one Isaiah Harris. Those types of questions and others which
are relevant to this case and admissible she does not have Fifth
Amendment Right as to the answers those questions would invoke.
THE COURT: You’re saying a defendant wouldn’t have the right
just not to just answer who she was or - MR. WISE: No, sir, that’s not incriminating. Who she is is not
incriminating. She has no Fifth Amendment right. It is on her birth
certificate, it’s on her tax returns, it is on her Social Security records.
Those are all public records.
THE COURT: I thought a defendant has a right not to do anything.
MR. WISE: No, sir, not unless it would incriminate them.
. . .
THE COURT: I’m ready to rule on the fact whether or not you can
call ‘em. I think you can call ‘em and they’d have the take their
Fifth Amendment with the jury here. Now the next question is what
happens if they do.
MR. WOOD: I think I can’t go any further than when they take the
Fifth. I stop. Now, I’m asking you in the matter of Harris to
70
consider the question of whether or not I can use the transcript or
portions of it from her - - I understand the State would have the right
to any portion of it for themselves. I’m not satisfied with everything
in the testimony from her prior trial.
THE COURT: All right. Well let’s get started. Show the jury out
and we’ll make rulings as we go.
R. at 774–85.
When the defense called Harris to the stand, the following exchange
occurred:
BY MR. WOOD:
Q.
Ms. Harris, I’m Jerry Wood and I’m one of the lawyers for
Michael Sockwell. Where are you presently incarcerated?
A.
Julia Tutwiler Prison for Women.
Q.
And what is the charge - - what is the basis for your being
there? Why are you there?
MR. STEVENSON: Your Honor, at this point, for the record,
I’m Bryant [sic] Stevenson counsel for Ms. Harris. Ms. Harris has
indicated her desire to assert her Fifth Amendment Right in these
proceedings and refuses to answer any and all questions relevant to
this case based on her Fifth Amendment Right, and at this point I
would invoke that Right on her behalf and ask that she be subject to
no further questioning.
MR. WOOD:
I’ll respect that, your Honor.
THE COURT:
Grant that motion.
MS. BROOKS:
No questions from the State, your Honor.
71
THE COURT:
You may step down.
R. at 812–13.
c.
State Court Appellate Review
As discussed previously, petitioner did not raise a federal constitutional claim
regarding the trial court’s handling of Harris’s invocation of her Fifth Amendment
privilege on direct appeal to the ACCA. Petitioner first raised the claim in his brief
in support of his petition for certiorari to the ASC. See Doc. 14-12 at 77–90.
Specifically, he argued that the trial court erred in accepting Harris’s invocation of
her Fifth Amendment privilege because Harris waived the privilege when she
testified at her own trial and, furthermore, because Harris had already been convicted
and sentenced at the time of petitioner’s trial. In relevant part, he also argued that
the trial court erred because “there was no showing that [Harris’s] answers to defense
counsel’s questions would have a tendency to incriminate her.” Id. at 89.
The ASC did not address petitioner’s arguments in its decision affirming his
conviction and sentence. Instead, after stating that it had “thoroughly considered”
all issues petitioner raised, it found no reversible error and, accordingly, summarily
denied the claim. Ex parte Sockwell, 675 So. 2d at 42.
72
d.
Petitioner’s Arguments Pursuant to § 2254(d)(1)
Petitioner alleges that, pursuant to § 2254(d)(1), the ASC’s summary denial
of his claim unreasonably applied clearly established federal law because it failed to
conclude that the trial court violated petitioner’s Sixth Amendment right to
compulsory process by 1) failing to conduct an inquiry into the validity of Harris’s
invocation of her Fifth Amendment privilege; and 2) failing to conclude that Harris
“had no legitimate claim to Fifth Amendment protection with respect to the
testimony that Mr. Sockwell sought to elicit.” Pet. ¶ 84. He also alleges that any
implicit decision by the ASC that any error by the trial court was harmless also
unreasonably applied clearly established federal law because Harris’s testimony
“could well have created a reasonable doubt that Mr. Sockwell was guilty of any
murder, let alone of capital murder.” Id. at ¶¶ 85–89.
e.
Application
Claim Two is due to be denied for at least four reasons: i) the ASC did not
unreasonably apply clearly established federal law because, at the time the ASC
issued its decision, there was no Supreme Court holding clearly establishing the
procedure a state court is to follow when balancing a criminal defendant’s Sixth
Amendment compulsory process rights against a witness’s invocation of her Fifth
Amendment privilege; ii) the ASC did not unreasonably apply the clearly established
73
federal law that petitioner has identified as governing his claim; iii) the ASC
reasonably could have concluded that any error committed by the trial court as
described in Claim Two was harmless; and iv) any error committed by the trial court
was harmless pursuant to Brecht.
i.
Petitioner has not identified applicable clearly established
federal law that the ASC could have unreasonably applied.
The petition identifies two Supreme Court decisions as reciting the clearly
established principles of federal law that, petitioner alleges, the ASC unreasonably
applied: Washington v. Texas and Hoffman v. United States. See Pet. ¶¶ 79, 81. Both
of these decisions are inapposite.
As discussed previously, Washington involved a criminal defendant’s
challenge to state statutes that prevented him from presenting accomplice testimony
in his own defense. The Supreme Court concluded that the state statutes violated
the Sixth Amendment because they permitted the State to “arbitrarily” deny the
accused’s “right to put on the stand a witness who was physically and mentally
capable of testifying to events that he had personally observed, and whose testimony
would have been relevant and material to the defense.” 388 U.S. at 19, 23. In
Hoffman, as also noted previously, a grand jury witness convicted of criminal
contempt challenged his conviction on Fifth Amendment grounds, arguing that his
privilege against self-incrimination protected his refusal to answer certain questions
74
before the grand jury. Neither decision addressed the standards to be applied and
the procedure to be followed when a trial court is confronted with a defense witness’s
invocation of her Fifth Amendment privilege at a criminal trial.
Petitioner therefore has pointed to no Supreme Court holding addressing the
scenario his claim presented to the ASC. He argues that he need not do so because
his “right to present witnesses in his defense” is clearly established and AEDPA does
not require him “to identify clearly established Supreme Court precedent
demonstrating the inapplicability of an exception to that constitutional right.” Doc.
26 at 10 (emphasis petitioner’s).
Thus, he maintains, “because no legitimate
invocation of the Fifth Amendment occurred[], this case is not materially
distinguishable from Washington v. Texas[.]” Id. at 11.
Petitioner cites no case in the petition concluding that Washington and
Hoffman constitute clearly established federal law binding on a state court in the
factual scenario presented by Claim Two. There is, however, persuasive federal
appellate authority that runs counter to his claim. In Davis v. Straub, 430 F.3d 281
(6th Cir. 2005), the Sixth Circuit rejected a habeas petitioner’s similar claim that
Washington and Hoffman provide a predicate of clearly established federal law that
was unreasonably applied by Michigan’s state courts. Much like petitioner here, the
petitioner in Davis argued that “Hoffman clearly established that witnesses must
75
invoke their Fifth Amendment privilege in response to each posed question and that
Washington required the trial court to compel [a witness who invoked his Fifth
Amendment privilege] to testify because, otherwise, Davis would have been
arbitrarily deprived of his right to a fair trial.” Id. at 288. The Sixth Circuit rejected
both contentions, concluding that “Hoffman and Washington did not clearly establish
how to resolve the conflict between a witness’s Fifth Amendment privilege and a
defendant’s right to present his defense. Because these cases do not resolve the
issue, the state courts necessarily could not have acted contrary to clearly established
Supreme Court precedent.” Id.
The Sixth Circuit found Hoffman inapplicable for several reasons, including
the following: the Supreme Court “did not consider the relationship between the
witness’s privilege against self-incrimination and the defendant’s right to put on his
defense[;]” the decision “announced no rule proscribing the blanket assertion of the
privilege against self-incrimination[;]” and the decision “clearly does not hold[] that
defense witnesses must always take the stand to invoke the privilege” on a questionby-question basis. Id. at 288–89.
As for Washington, the Sixth Circuit found that the decision “does not hold
that a defendant has the right to present any and all witnesses.” Id. at 290. Rather,
“entirely outside the Fifth Amendment self-incrimination context,” Washington
76
“clearly established that, under the Sixth Amendment, a state may not arbitrarily
deny a defendant the right to call a witness whose testimony is relevant and material
to the defense.” Id. “Because the Court did not consider the question of a witness’s
Fifth Amendment privilege against self-incrimination anywhere in its opinion, it
cannot be said that the Court created clearly established law against a blanket
assertion of the privilege or resolved how courts should treat the tension between the
witness’s and the defendant’s interests.” Id.
Because the decisions petitioner has cited in his petition, Washington and
Hoffman, do not create clearly established federal law on the question of how a trial
court is to reconcile the competing interests when a criminal defendant calls a
witness who invokes her Fifth Amendment privilege against self-incrimination, he
has failed to show that the ASC unreasonably applied clearly established federal law
in its rejection of Claim Two.
ii.
The ASC did not unreasonably apply the authorities
petitioner has posited as providing clearly established
federal law governing Claim II.
Notwithstanding the foregoing, and assuming that Washington and Hoffman
do create clearly established law applicable to petitioner’s claim, this court is unable
to conclude that the ASC unreasonably applied those decisions. This is so because,
even if the trial court failed to adequately inquire into whether Harris’s invocation
77
of her Fifth Amendment privilege was reasonable and legitimate, the ASC
reasonably could have found that petitioner’s Sixth Amendment compulsory process
right still was not violated.
To be sure, Hoffman stresses that a witness’s “say-so does not of itself
establish the hazard of incrimination.” 341 U.S. at 486. Rather, “it is for the court
to say whether his silence is justified, and to require him to answer if it clearly
appears to the court that he is mistaken.” Id. In making this judgment, the trial court
“must be governed as much by [its] personal perception of the peculiarities of the
case as by the facts actually in evidence.” Id. at 487 (citation and quotation omitted).
Here, the ASC reasonably could have concluded that the trial judge’s “personal
perception of the peculiarities of the case” plainly demonstrated that no inquiry was
needed and would have been futile if attempted. Such judgment would be amply
supported by the record considering that Harris’s attorney unequivocally stated that
Harris would not be answering any questions relevant to the case for which petitioner
was on trial, the trial court had no means of forcing Harris to answer any questions,
and, recognizing this practical reality, the defense acquiesced to Harris’s invocation
of her Fifth Amendment privilege.
Recall that Harris’s attorney advised the court during jury selection that Harris
was unwilling to testify. While adamant that Harris’s invocation of her Fifth
78
Amendment privilege was not valid because she had waived the privilege, and that
her privilege extended only to answers that might incriminate her, the defense
recognized that the trial court’s toolkit to force Harris to answer questions was bare:
“she hasn’t got to testify if she don’t want to by other grounds, . . . but if she refuses
all you can do is put her in jail and she’s there already.” R. at 191–92. Hence, when
Harris was called to the stand and her attorney intervened and stated that Harris
“refuses to answer any and all questions relevant to this case based on her Fifth
Amendment Right[,]” R. at 813, there was little the defense or the trial court could
do to force her to testify. Accordingly, the defense confirmed its “respect” for
Harris’s privilege and the trial judge excused her from the stand. R. at 813.
Petitioner has cited no clearly established federal law that would require the
trial court to ignore these obviously determinative circumstances and, sua sponte,
force the defense to query the witness so that the trial court can make rulings,
question by question, on whether the witness’s invocation of her privilege is
reasonable. In the circumstances described above, such an exercise plainly would
have been futile.12 More importantly, considering the defense’s overriding request
12
For a demonstration of this futility, see Douglas v. State of Alabama, 380 U.S. 415
(1965), which was cited by the prosecutor in arguing that Harris should be made to invoke
her privilege outside the presence of the jury. There, a previously convicted codefendant
called by the State at the defendant’s trial invoked his Fifth Amendment privilege and
repeatedly refused to answer the State’s questions even after the trial judge ruled that the
codefendant “could not rely on the privilege because of his conviction and ordered him to
79
that Harris be made to invoke the privilege before the jury, it would have deprived
the defense of the limited strategic advantage it realistically hoped to gain by placing
Harris on the stand.13 Hoffman imparts no holding requiring the trial court to proceed
under such circumstances and Washington cannot be read to hold that a trial court’s
failure to do so constitutes an “arbitrary” denial of a criminal defendant’s Sixth
Amendment right to compulsory process in his defense. Thus, the ASC did not
unreasonably apply Hoffman or Washington in its rejection of Claim Two.
iii.
The ASC reasonably could have concluded that any error
by the trial court was harmless.
Notwithstanding the above, the ASC also reasonably could have concluded
that any error by the trial court in permitting Harris to invoke her Fifth Amendment
answer.” Id. at 416. As will be further discussed in this order’s discussion of Claim Three,
Douglas was concerned with whether or not the defendant’s Confrontation Clause rights
were violated when the trial court permitted the prosecution to examine the codefendantwitness about his out-of-court statement. For present purposes, Douglas illustrates the
futility of trying to force a recalcitrant, already incarcerated witness—like Louise Harris—
to testify over the witness’s invocation of her Fifth Amendment privilege.
13
Recall that the prosecution and defense were at odds over whether the defense could put
Harris on the stand before the jury knowing her intent to invoke the Fifth Amendment. The
defense argued it was essential that she be made to invoke her privilege before the jury due
to other evidence that had been admitted. With no prospect of actually obtaining Harris’s
testimony, a question-by-question inquiry into the reasonableness of her invocation of the
privilege almost certainly would have to be held, as the prosecution argued, outside the
presence of the jury. See, e.g., United States v. Melchor-Moreno, 536 F.2d 1042, 1046 (5th
Cir. 1976) (observing the accepted practice, post-Hoffman, whereby, “outside the presence
of the jury,” the judge examines the witness to “determine whether there is reasonable
ground to apprehend danger to the witness from his being compelled to answer”).
80
privilege was harmless. Petitioner concedes that the ASC’s “summary decision
potentially may have rested on a determination that any constitutional error was
harmless[,]” but he maintains that he is entitled to relief because the trial court’s
error satisfies the harmless error standard of Brecht. Pet. ¶ 85.
There are two standards of harmless error that are relevant in federal habeas
proceedings.
The Brecht standard, discussed previously and referenced by
petitioner, is independent of any state court adjudication of claims and must be
satisfied before relief may be granted in habeas corpus. There is also the harmless
error standard that is applicable on direct review of a conviction, which, when
applied by a state appellate court, a federal court reviews through the prism of
AEDPA.
In Chapman v. California, 386 U.S. 18 (1967), the Supreme Court held
that on direct review, a federal constitutional error is harmless only if
the reviewing court is “able to declare a belief that it was harmless
beyond a reasonable doubt,” id. at 24. Under AEDPA’s unreasonable
application prong, 28 U.S.C. § 2254(d)(1), federal habeas relief may
only be granted if the state court’s application of the Chapman harmless
error standard on direct review was “objectively unreasonable.” For
ease of exposition, we refer to this standard as the “AEDPA/Chapman”
standard.
Mansfield v. Sec’y, Dep’t of Corr., 679 F.3d 1301, 1307 (11th Cir. 2012) (citations
omitted). Although petitioner cites authority in the petition postulating that the
“AEDPA/Chapman” standard is “subsumed” by the Brecht standard, see Pet. ¶ 85,
81
intervening authority makes clear that the two standards are functionally distinct and
that, in order to obtain relief, petitioner must satisfy both. See Brown v. Davenport,
596 U.S. __, 142 S. Ct. 1510, 1524 (2022). While petitioner argues that his claim
satisfies even the ostensibly more demanding harmless error standard of Brecht, he
has not shown, pursuant to AEDPA, that any determination by the ASC that any
error was harmless under Chapman was unreasonable.
To the extent petitioner’s claim challenges the ASC’s implicit harmless error
determination as an unreasonable application of Chapman, he faces a high burden:
Chapman merely announced the default burden of proof for evaluating
constitutional errors on direct appeal: The prosecution must prove
harmlessness beyond a reasonable doubt. And this Court has repeatedly
explained that, when it comes to the AEDPA, “the more general the
[federal] rule[,] . . . the more leeway [state] courts have in reaching
outcomes in case-by-case determinations” before their decisions can be
fairly labeled unreasonable.
Brown, 142 S. Ct. at 1530 (quoting Renico v. Lett, 559 U.S. 766, 776 (2010)). Thus,
to succeed under the AEDPA/Chapman standard, petitioner must demonstrate to this
court that, despite the substantial “leeway” afforded the ASC in applying Chapman,
no fairminded jurist could agree with the ASC’s decision that any error was
harmless. Id.
To meet his burden, petitioner argues as follows:
Ms. Harris’s refusal to testify was far from harmless: her testimony
would have provided the jury with corroborating evidence that Mr.
82
Sockwell had not been paid $50—a facially suspect amount for murderfor-hire—to kill Isaiah Harris, and thus had not committed murder for
pecuniary gain. This testimony could well have created a reasonable
doubt that Mr. Sockwell was guilty of any murder, let alone of capital
murder.
Pet. ¶ 89. In his brief, he argues that the prosecution’s evidence that petitioner
committed a murder for pecuniary gain “rested on a credibility contest in which the
prosecution did not have a clear upper hand.” Doc. 26 at 21. He asserts the jury
reasonably could have found Harris’s testimony more compelling than Freddie
Patterson’s testimony that petitioner expected to get more money after the shooting.
Id. Thus, he maintains, “Harris’s testimony would have at least called into doubt the
prosecutor’s allegation that Sockwell committed murder for $50—a facially suspect
amount.” Id. at 22.
The ASC reasonably could have concluded that the trial court’s failure to
somehow pry free Harris’s testimony over her Fifth Amendment invocation was
harmless. Several points would have reasonably supported this judgment, including
the following: Freddie Patterson’s testimony that petitioner stated “‘he had to shoot
him’ and that ‘he was gonna . . . get his money’” (Sockwell, 675 So. 2d at 13);
petitioner’s own admission in his police statement that he received a share of a
hundred dollars, passed from Harris through McCarter before the shooting, for the
killing of her husband before the shooting, with the prospect of more to be paid after
83
the shooting (see Doc. 14-7 at 84–86; id. at 100 (“She was talking about killing me
‘cause she had gave us a hundred dollars to shoot him first”)); and the lack of any
reason to believe that the jury at petitioner’s trial would have found Harris’s selfserving testimony more credible than did the jury that first heard the testimony and
convicted Harris of capital murder.
To be sure, as petitioner argues, Harris’s testimony would have constituted an
evidentiary point on the opposite side of the scale. But he presents no reason why
Patterson’s testimony about what he heard from petitioner was not credible. He
asserts only that Patterson “had no first-hand knowledge of the facts surrounding the
payment allegedly given” to petitioner and Patterson had his own “serious credibility
problems” “because he was in the car with [petitioner and his codefendants] on the
night of the shooting.” Doc. 26 at 21. But the jury apparently found Patterson
credible notwithstanding his presence in the car with McCarter, Hood, and
petitioner, and Harris’s testimony that she had paid petitioner for a car repair rather
than a murder would not have undermined Patterson’s testimony about what he
heard petitioner say because, as petitioner acknowledges, Patterson did not profess
“first-hand knowledge” about from whom petitioner expected to “get his money.”
See R. at 511 (Patterson denying that petitioner “refer[red] to anybody while he was
talking about” getting his money).
84
At bottom, in the “credibility contest” petitioner describes, he was badly
outmatched. Arrayed against Harris’s self-serving, and already once repudiated,
testimony was Patterson’s testimony and petitioner’s own statement against his
interests in which he admitted to the essential elements of the capital murder charge.
Hence, the ASC was not unreasonable in concluding that the failure to force Harris
to testify over her Fifth Amendment invocation was harmless. Put another way,
considering the substantial “leeway” due the ASC when applying Chapman, “[e]ven
if some fairminded jurist applying Chapman could reach a different conclusion, [this
court] cannot say that every fairminded jurist must.” Brown, 142 S. Ct. at 1530.
Accordingly, petitioner cannot satisfy the AEDPA/Chapman standard governing the
ASC’s implicit conclusion that any error described in Claim Two was harmless.
iv.
Any error was harmless under Brecht.
Finally, even if petitioner could satisfy the AEDPA/Chapman standard, he
cannot show that such error caused him actual prejudice under Brecht. As stated
previously, actual prejudice under Brecht results when the error “had substantial and
injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at
637. In general, the Brecht standard “is more favorable to and less onerous on the
state, and thus less favorable to the defendant than the Chapman harmless beyond a
reasonable doubt standard.” Mansfield, 679 F.3d at 1307 (quotation marks omitted).
85
“To show prejudice under Brecht, there must be more than a reasonable possibility
that the error contributed to the conviction or sentence.” Mason v. Allen, 605 F.3d
1114, 1123 (11th Cir. 2010).
“To determine the effect on the verdict of a
constitutional error, the Court must consider the error ‘in relation to all else that
happened’ at trial.” Trepal v. Sec’y, Florida Dep’t of Corr., 684 F.3d 1088, 1114
(11th Cir. 2012) (quoting Kotteakos v. United States, 328 U.S. 750, 764 (1946)).
“The question turns on whether the Court can ‘say, with fair assurance,’ that the
verdict ‘was not substantially swayed by the error[.]’” Id. (quoting O’Neal v.
McAninch, 513 U.S. 432, 437–38 (1995)).
In arguing that Harris’s testimony would have provided alternative evidence
probative of the pecuniary gain aspect of petitioner’s capital murder charge—i.e.,
that Harris’s testimony “would have at least called into doubt” the prosecution’s
theory—petitioner has, at most, raised only a “reasonable possibility” that the
absence of Harris’s testimony swayed the jury’s verdict. Even if credited, that
showing is insufficient to demonstrate actual prejudice under Brecht. For the
reasons discussed previously, this court cannot conclude that any error by the trial
court in permitting Louise Harris to refuse to testify substantially swayed the jury’s
verdict at petitioner’s trial. It is not likely that the jury would have credited Harris’s
self-serving testimony, already repudiated by one jury, over the damning testimony
86
of Patterson and petitioner’s own admission that he received money from Harris for
the murder of her husband. Accordingly, petitioner cannot show actual prejudice
under Brecht.
3.
Claim Three
Claim Three is petitioner’s claim that the prosecutor’s repeated references in
her rebuttal closing argument to out-of-court inculpatory statements made by
McCarter and Hood, who did not testify at petitioner’s trial,14 violated the
Confrontation Clause of the Sixth Amendment. This claim was presented on direct
appeal to the ACCA, which denied the claim in a reasoned decision in which it found
any Confrontation Clause violation harmless. See Sockwell, 675 So. 2d at 34–35.
Petitioner then presented the claim to the ASC, which, as previously discussed,
summarily denied the claim. Ex parte Sockwell, 675 So. 2d at 42. Accordingly, this
court reviews the state court’s decision pursuant to AEDPA.
a.
Clearly Established Federal Law
The Sixth Amendment confers on the defendant in a criminal prosecution the
right “to be confronted with the witnesses against him[.]” U.S. CONST. amend. VI.
14
Hood was called by the defense at petitioner’s trial, but, like Louise Harris, invoked his
Fifth Amendment privilege and refused to answer any questions beyond providing his
name. R. at 813–14.
87
Petitioner identifies three Supreme Court decisions as comprising the clearly
established federal law governing his claim. See Pet. ¶¶ 98–100.
First, in Douglas v. State of Alabama, 380 U.S. 415 (1965), a criminal
defendant, Douglas, challenged on Sixth Amendment grounds a “procedure” by
which the prosecution read the substance of a co-defendant’s out-of-court
inculpatory statement to the jury in response to the co-defendant’s invocation of his
Fifth Amendment privilege against self-incrimination. When the prosecution first
called the co-defendant, Loyd, to the stand, Loyd’s attorney objected and asserted
Loyd’s Fifth Amendment privilege. Id. at 416. The trial court overruled the
objection and questioning proceeded. Loyd “refused to answer any questions
concerning the alleged crime.” Id. The trial judge ruled that Loyd could not assert
the privilege because of his prior conviction “and ordered him to answer,” but Loyd
“persisted in his refusal.” Id.
The trial judge then permitted the prosecutor to cross-examine Loyd as a
“hostile witness.” Id. The prosecutor proceeded to read from Loyd’s out-of-court
statement, stopping repeatedly to ask whether Loyd made each statement that the
prosecutor read aloud. Id. Loyd continued to assert his privilege throughout this
exchange. Id. Among the statements from the document read by the prosecutor was
88
Loyd’s charge that Douglas was the triggerman in the “assault with intent to murder”
for which he was on trial. Id.
The Supreme Court held that this “procedure” violated the Sixth Amendment:
[Douglas’s] inability to cross-examine Loyd as to the alleged
confession plainly denied him the right of cross-examination secured
by the Confrontation Clause. Loyd’s alleged statement that [Douglas]
fired the shotgun constituted the only direct evidence that he had done
so; coupled with the description of the circumstances surrounding the
shooting, this formed a crucial link in the proof both of [Douglas’s] act
and of the requisite intent to murder. Although the Solicitor’s reading
of Loyd’s alleged statement, and Loyd’s refusals to answer, were not
technically testimony, the Solicitor’s reading may well have been the
equivalent in the jury’s mind of testimony that Loyd in fact made the
statement; and Loyd’s reliance upon the privilege created a situation in
which the jury might improperly infer both that the statement had been
made and that it was true.
380 U.S. at 419. Because “effective confrontation of Loyd was possible only if Loyd
affirmed the statement as his[,]” and Loyd refused to do so, Douglas was deprived
of any opportunity to challenge “a fundamental part of the State’s case against” him.
Id. at 420.
Second, in Ohio v. Roberts, 448 U.S. 56, 62 (1980), the Supreme Court was
“called upon to consider the relationship between the Confrontation Clause and the
hearsay rule with its many exceptions.” Specifically, the question was whether the
State may introduce at a criminal trial the transcript of a witness’s testimony at a
preliminary hearing because the witness was not available to testify at trial. The
89
Supreme Court outlined the following test for the admission of hearsay statements
where the Confrontation Clause is implicated:
In sum, when a hearsay declarant is not present for cross-examination
at trial, the Confrontation Clause normally requires a showing that he
is unavailable. Even then, his statement is admissible only if it bears
adequate “indicia of reliability.” Reliability can be inferred without
more in a case where the evidence falls within a firmly rooted hearsay
exception. In other cases, the evidence must be excluded, at least absent
a showing of particularized guarantees of trustworthiness.
Id. at 66.15
Third, in Lee v. Illinois, 476 U.S. 530 (1986), the defendant-petitioner, Lee,
was jointly tried with a co-defendant, Thomas, in a bench trial on charges of double
murder. Both Lee and Thomas gave statements to police. The statements had
several “parallels,” but differed especially on how Thomas and Lee “came to commit
the murders.”
Id. at 535.
Specifically, Thomas’s statement described Lee’s
participation in a “premeditated plan to kill.” Id. Lee, by contrast, stated that
Thomas had been provoked to murder and “snapped,” and she confessed no
premeditation or prior planning of the murders. At the bench trial, “[n]either
defendant testified” and “both the prosecution and the defendants relied heavily on
15
Ohio v. Roberts was abrogated by Crawford v. Washington, 541 U.S. 36 (2004).
Crawford was decided after direct review of petitioner’s conviction was complete, and it
is not retroactive to cases on collateral review. See Whorton v. Bockting, 549 U.S. 406,
409 (2007). Hence, the test articulated in Roberts remains “clearly established federal law”
for AEDPA purposes at the time of the state court decisions in this matter.
90
the confessions.”
Id. at 536.
In finding Lee guilty, the trial judge rejected
exculpatory statements in Lee’s confession and, instead, “expressly relied on
Thomas’ confession and his version of the killings” to discount Lee’s version. Id.
at 538.
The Supreme Court observed in Lee that it confronted a scenario “strikingly
similar to Douglas[,]” because, “as in Douglas, the State sought to use hearsay
evidence as substantive evidence against the accused. In both cases, the hearsay in
question was a confession made by an alleged accomplice, and in neither case was
the defendant able to confront and cross-examine the declarant.” Id. at 542. The
only material contrast with Douglas observed by the Court favored Lee because
Thomas’s inculpatory statement was “admitted into evidence by the judge” whereas
the “procedure” condemned in Douglas did not result in the “technical” admission
of evidence. Id. at 542–43. Accordingly, the Court found that Lee’s Confrontation
Clause right was violated. The Court further held that Thomas’s statement was not
admissible under Roberts because it lacked adequate indicia of reliability. Id. at
544–45.
b.
Proceedings in the Trial Court
Although petitioner alleges that the prosecution’s “repeated references” to the
inculpatory statements of McCarter and Hood in her rebuttal closing argument
91
violated the Sixth Amendment, it is important to observe that the prosecutor’s
rebuttal closing argument was not the first time the jury heard about McCarter’s and
Hood’s statements. Indeed, McCarter’s and Hood’s identifications of petitioner as
the shooter were referenced several times during trial and were also the subject of
speculation in the defense’s own closing argument.
To begin with, petitioner’s own out-of-court statement, which was admitted
into evidence in video, audio, and written transcript formats, references McCarter’s
and Hood’s inculpatory statements identifying petitioner as the shooter. See Doc.
14-7 at 94.
Specifically, Bruce Huggins, the Montgomery County Sheriff’s
Department investigator who obtained petitioner’s statement, advised petitioner
during his interview that both McCarter and Hood had identified him as the shooter.
When Huggins testified at petitioner’s trial, on cross-examination, defense counsel
elicited Huggins’s testimony that, as reflected in petitioner’s statement, both
McCarter and Hood told Huggins that petitioner was the shooter. R. at 668. The
defense elicited this fact again still later in its cross-examination of Huggins when it
confirmed Huggins’s belief that McCarter and Hood had been truthful about
petitioner’s role as the shooter. R. at 673–74.
More references to McCarter’s and Hood’s inculpatory statements followed
when petitioner testified in his own defense. During petitioner’s direct examination,
92
he testified that he confessed to shooting Isaiah Harris because he was scared and
because Huggins told petitioner McCarter and Hood had already identified him as
the shooter and he “was gonna get blamed for it anyway.” R. at 830. Petitioner also
referenced Huggins’s assertion that McCarter and Hood had identified him as the
shooter on cross-examination. R. at 893, 906. Finally, to complete her crossexamination, the prosecutor asked petitioner if he could explain why Hood,
Patterson, McCarter, and Gilmore all implicated him as the shooter. R. at 912.
In the prosecution’s initial closing argument, while summarizing the course
of the investigation, the prosecutor referenced both McCarter’s and Hood’s
identifications of petitioner as the shooter. R. at 958. Then, still later, the prosecutor
argued that, “[w]ell, everybody in the car said he did it, his roommate said he did it,
Bobo McCarter said he did it, Kenneth Gilmore, one of his best friends that he grew
up with said he did it, and he said he did it the day after he did. All four people in
that car said he did it and he said yes, I did it.” R. at 968. The prosecutor then
repeated that “[e]verybody in the car says he did it” once more before resting. R. at
969.
In the defense’s closing argument, counsel immediately reminded the jury that
neither McCarter nor Hood had accused petitioner of being the shooter “from the
witness stand.” R. at 970. The defense later emphasized that the jurors had heard
93
direct evidence about the shooter from only two people who were there that night:
Patterson and petitioner. R. at 973. The defense later again referenced the part of
petitioner’s statement in which Huggins informed petitioner that McCarter and Hood
had identified him as the shooter. R. at 992. Still later in closing, the defense asked
the jury to ponder “why would Bobo McCarter, Al Hood, confess to the police that
they were involved in it or tell ‘em that Michael Sockwell did it if he didn’t?” R. at
995. The defense posited that both were motivated to admit their involvement while
pointing to petitioner as the shooter in order to obtain favorable treatment because,
they must have believed, “as long as you didn’t’ pull the trigger you’re not guilty so
I’m gonna say Sockwell pulled the trigger.” R. at 995–96.
All of this set the stage for the prosecution’s rebuttal closing argument. When
the prosecutor mentioned McCarter’s statement and the defense’s argument about
his treatment by prosecutors, the following exchange occurred:
Then they want to tell you well, State’s cut a deal. They’ve got
Lorenzo McCarter. My goodness. I think he used the term wool was
pulled over our eyes. Ladies and gentlemen, the testimony is
uncontradicted that on the night -- the day he was arrested, Lorenzo
McCarter gave a statement to law enforcement officials. It is
uncontradicted that Lorenzo McCarter then said the shooter was
Michael Sockwell. March 11th, 1988 his statement.
MR. WISE: Your honor, I object. There’s been no testimony
from Mr. Lorenzo McCarter.
MS. BROOKS: No need for any testimony.
94
THE COURT: Sustained.
MS. BROOKS: Is there? It’s uncontradicted what he said.
MR. WISE: Your Honor, I ask the Court to instruct the jury to
disregard it.
THE COURT: Sustained.
MS. BROOKS: And Mr. Wise is upset –
THE COURT: Sustained.
MS. BROOKS: Excuse me, Judge.
THE COURT: Jury will disregard anything about the times you
said it.
MS. BROOKS (continuing:)
Y’all will remember that it was uncontradicted that Bruce
Huggins and Mark Thompson, from this witness stand under oath, told
you at the request of the Defense attorneys that they had, at the time
they took the statement of the defendant on this video statement,
statements from McCarter and Hoods [sic] that this defendant was the
shooter. They had that. March 11, 1988.
...
Now they want to talk about the Fifth Amendment. Remember
we had, very briefly, Alex Hood come in. They called him. Mr. Hood,
as he has a right to do, took the Fifth Amendment. The State of
Alabama cannot make him testify. You probably would have liked to
have heard his story. We could not force him to testify. We do know
that it’s undisputed that he said Michael Sockwell did it. Now, Louise
Harris, remember she came in and said she was from Tutwiler, gave her
name and then said Fifth Amendment. Can’t make her testify either.
And somehow that’s the State’s fault? How does that prove the
defendant didn’t do it? I submit to you, and they have a right to, and
they took the Fifth Amendment because what they said would tend to
95
incriminate them because they were involved with the defendant,
Michael Sockwell. Louise Harris didn’t pull the trigger, Lorenzo
McCarter didn’t pull the trigger, Alex Hood didn’t pull the trigger. They
were involved. Who supplied the car? Hood. Who paid ’em the
money? McCarter. Who provided the money and planned it and stood
to benefit the most financially? Louise Harris. They’re just as guilty,
and their guilt does not mean Michael Sockwell is not guilty.
R. at 1010–14. Still later in the rebuttal closing, the prosecutor again mentioned
Hood’s identification of petitioner as the shooter. R. at 1018–19. Finally, in
concluding her rebuttal closing, the prosecutor once again obliquely referenced the
statements of McCarter and Hood when she argued that the reason petitioner lied at
various points in his police statement and in statements attributed to him by other
witnesses was because “[he] has a reason to. He is the only one who claims anyone
other than himself did it, did the shooting. He’s the only one.” R. at 1026.
c.
State Court Appellate Review
In petitioner’s supplemental brief on appeal to the ACCA, he argued that the
prosecutor “repeatedly argued and elicited from witnesses inadmissible, inculpatory
out-of-court statements by [petitioner’s] non-testifying codefendants.” Doc. 14-9 at
165.
Petitioner cited Lee and Douglas for the proposition that “the uncross-
examined statements of codefendants are incompetent, grossly unreliable
evidence[,]” and argued that the references to their inculpatory statements violated
the Sixth Amendment. Id. at 168–169.
96
In its opinion, the ACCA acknowledged Douglas’s Sixth Amendment holding
but further noted that Confrontation Clause violations “are subject to harmless error
analysis.” Sockwell, 675 So. 2d at 34 (citing Delaware v. Van Arsdall, 475 U.S. 673
(1986)).
The ACCA also noted the defense’s objection to the prosecutor’s
references to the statements of McCarter and Hood, and the trial court’s instruction
that the jury “disregard the prosecutor’s references.” Id. The ACCA then concluded
that any error was harmless:
In this case, ample evidence was presented to show that the appellant
was the shooter. Patterson testified that the appellant was the shooter.
The appellant was known to be carrying a shotgun in Hood’s vehicle.
Gilmore testified that the appellant told him that he shot someone in the
face. Additionally, the appellant, in his statement to Investigator
Huggins, stated that he shot the victim. Thus, in light of the
overwhelming evidence and in light of the instruction that the trial
judge gave to the jury when defense counsel objected, the prosecutor’s
argument to the jury during closing argument that Hood and McCarter
stated to the police that the appellant was the shooter was harmless
error.
Id. at 35.
In his brief in support of his petition for certiorari to the ASC, petitioner
repeated his Confrontation Clause claim, with some additional references to portions
of the record not highlighted in his briefing before the ACCA. See Doc. 14-12 at
91–97. As discussed previously, the ASC summarily denied the claim. Ex parte
Sockwell, 675 So. 2d at 42.
97
d.
Petitioner’s arguments pursuant to § 2254(d)
Petitioner argues that “this Court must presume that the [ASC]’s decision
rested on the [ACCA]’s harmless error analysis, and that the [ASC] accepted the
apparent conclusion of (or at least the assumption without decision) of the [ACCA]
that the prosecutor’s conduct violated the Sixth and Fourteenth Amendments.” Pet.
¶ 96. He asserts that any determination by a state court that his Confrontation Clause
rights were not violated “would be an unreasonable application of clearly established
federal law.” Id. at ¶ 102. He further alleges that the constitutional error was not
harmless, as found by the state courts. Id. at ¶¶ 103–111.
e.
Application
Claim Three is due to be denied for at least two reasons: 1) the ACCA’s
decision finding any Confrontation Clause error harmless is not contrary to, or an
unreasonable application of, clearly established federal law, and is not based upon
an unreasonable finding of fact;16 and 2) any error was harmless under Brecht.
16
Because the ASC issued a summary decision affirming the ACCA’s reasoned disposition
of Claim Three, this court presumes that the ASC relied upon the ACCA’s reasoning and
“looks through” its summary decision to apply AEDPA’s standard of review to the
ACCA’s reasoned decision. See Wilson v. Sellers, 584 U.S. __, __, 138 S. Ct. 1188, 1192
(2018) (“We hold that the federal court should ‘look through’ the unexplained decision to
the last related state-court decision that does provide a relevant rationale. It should then
presume that the unexplained decision adopted the same reasoning.”).
98
i.
Petitioner cannot satisfy the AEDPA/Chapman standard.
Petitioner can obtain relief only if he can show that the ACCA’s decision
finding any error harmless was “objectively unreasonable.” Mansfield, 679 F.3d at
1307. As discussed previously, he faces a high burden in this endeavor because the
applicable clearly established federal law, Chapman, supplies a “general” rule that
affords state courts considerable “leeway” in its application. Brown, 142 S. Ct. at
1530. That standard is simply that a constitutional error is harmless if the reviewing
court is “able to declare a belief that it was harmless beyond a reasonable doubt.”
Chapman, 386 U.S. at 24. See also United States v. Nicholson, 24 F.4th 1341, 1354
(11th Cir. 2022) (internal quotations and citations omitted) (“A constitutional error
is harmless when the government proves beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained. To say that an error did
not contribute to the verdict is . . . to find that error unimportant in relation to
everything else the jury considered on the issue in question, as revealed in the
record.”). In essence, then, petitioner must show that no “fairminded jurist” could
agree with the ACCA’s determination that any error did not contribute to the jury’s
verdict. For the following reasons, he cannot do so.
The strongest reason that fairminded jurists can agree with the ACCA’s
harmless error decision is that, as the ACCA found, the evidence establishing that
99
petitioner was the shooter was “ample.”
That evidence included Patterson’s
testimony directly identifying petitioner as Harris’s shooter, Gilmore’s testimony
that petitioner admitted having shot someone in the face, and petitioner’s own
statement admitting to the crime. While petitioner contests each of these evidentiary
points, his arguments suggest, at most, why a fairminded jurist might disagree with
the ACCA’s conclusion. He falls far short of demonstrating that a fairminded jurist
could not agree with the ACCA’s conclusion. This is insufficient to meet his burden.
See Brown, 142 S. Ct. at 1530 (“Even if some fairminded jurist applying Chapman
could reach a different conclusion, [this court] cannot say that every fairminded
jurist must.”).
For example, petitioner again alleges that Patterson had his own credibility
issues because he was in the car with McCarter, Hood, and petitioner and, therefore,
was substantially motivated to “exculpate himself from criminal liability.” Pet. ¶
107. Fair enough, but Patterson testified and was subject to cross-examination.
Petitioner points to nothing in the record showing that his testimony was incredible
or that the ACCA unreasonably relied upon his testimony in its harmless error
analysis.
Petitioner next impugns Gilmore’s testimony about petitioner’s admission
that he shot someone because that person “slapped him,” arguing that such
100
“testimony was inconsistent with the prosecution’s theory that Mr. Sockwell shot
the victim ‘without notice’” and that there was “no other evidence of any altercation
between the victim and Mr. Sockwell or that the victim ‘slapped’ Mr. Sockwell.”
Id. (emphasis petitioner’s). But that establishes, at most, only that petitioner may
have lied to Gilmore about the reason that he shot Harris; it does not materially
impeach Gilmore’s testimony that petitioner admitted to shooting someone, much
less show that the ACCA was unreasonable in relying on it in its harmless error
analysis.
Finally, petitioner alleges that his own confession was unreliable because it
was coerced and “contained factual inaccuracies.” Id. These points were argued at
trial and the jury plainly rejected them. The ACCA was not unreasonable in
concluding that the jury’s rejection of these points was not attributable to the
prosecution’s references to McCarter’s and Hood’s statements incriminating
petitioner.
The record reveals other reasons why the ACCA reasonably concluded that
the prosecution’s references to McCarter’s and Hood’s inculpatory statements were
harmless beyond a reasonable doubt. First, just as petitioner has argued with respect
to Patterson, to the extent the jury might have put any stock in the hearsay references
to their statements, the jury surely would have understood that McCarter and Hood
101
also were highly motivated to shift blame onto petitioner and away from themselves.
As reviewed above, the defense argued this point in its own closing argument.
Second, the defense was able to argue that McCarter’s and Hood’s statements
were unreliable because—unlike petitioner’s statement to investigators—they did
not indicate that a fourth person, Patterson, was in the car around the time of the
murder. In other words, the defense was able to show that McCarter and Hood had
lied, at least by omission, in their statements to Huggins. The defense elicited this
fact in cross-examination of Huggins, R. at 668, and argued it in its own closing
argument. See R. at 981–82.
Third, the defense repeatedly made the point that neither McCarter nor Hood
had testified from the stand about petitioner.
The defense’s objection to the
prosecution’s references to the out-of-court statements during rebuttal closing was
sustained, and the jury was instructed to disregard the prosecutor’s remarks. No
doubt, the trial court’s curative instruction could have been more comprehensive,
but it cannot be said that the jury was left with the unfettered impression that it
should treat any referenced statements by McCarter and Hood as evidence against
petitioner. Considering all of these circumstances, the ACCA reasonably concluded
that the prejudicial effect of the prosecution’s references to the out-of-court
102
statements was sufficiently blunted such that any Confrontation Clause error did not
contribute to the jury’s verdict.
ii.
Any error was harmless under Brecht.
Even if petitioner could satisfy the AEDPA/Chapman standard, he cannot
show that any Confrontation Clause violation “had substantial and injurious effect
or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637. To reiterate,
the Brecht standard “is more favorable to and less onerous on the state, and thus less
favorable to the defendant than the Chapman harmless beyond a reasonable doubt
standard.” Mansfield, 679 F.3d at 1307 (quotation marks omitted). Petitioner must
show “more than a reasonable possibility that the error contributed to the conviction
or sentence.” Mason, 605 F.3d at 1123.
For the reasons already given—namely, the “ample” evidence of petitioner’s
guilt, the defense’s capable argument that any statements by McCarter and Hood
were unreliable, the defense’s emphasis that the jury had received no evidence from
McCarter and Hood, and the trial court’s prompt, albeit imperfect, curative
instruction when the defense objected—this court cannot conclude that there is more
than a reasonable possibility that the prosecutor’s references to McCarter’s and
Hood’s statements during rebuttal closing contributed to the jury’s guilty verdict.
Accordingly, this claim is due to be denied.
103
4.
Claim Four
Claim Four is petitioner’s claim that the trial court violated his rights under
the Eighth and Fourteenth Amendments by overriding the jury’s recommendation of
life imprisonment and sentencing him to death on the basis of extra-record
information. Pet. ¶¶ 112–13. Specifically, he alleges the trial court’s written
sentencing order, issued nearly a year after his death sentence was announced at the
sentencing hearing, contained “numerous inflammatory references to evidence from
the trial of Louise Harris that had never been presented at Mr. Sockwell’s trial, and
that Mr. Sockwell had no opportunity to challenge or rebut.” Id. at ¶ 113.
a.
Clearly Established Federal Law
Petitioner identifies one United States Supreme Court decision, Gardner v.
Florida, 430 U.S. 349 (1977), as comprising the clearly established federal law
governing his claim for AEDPA purposes. Pet. ¶¶ 116–21. In Gardner, the
defendant, Gardner, was convicted of first-degree murder for beating his wife to
death with a “blunt instrument.” Id. at 351. While the jury deliberated his sentence,
the trial judge ordered the completion of a presentence investigation report (“PSI”).
Id. at 352. The jury then returned its advisory verdict, finding that the mitigating
circumstances outweighed the aggravating and that, accordingly, Gardner should be
sentenced to life. Id. at 352–53. A little more than two weeks after trial, the PSI
104
was completed, and two days after completion the trial judge entered his “findings
of fact and judgment sentencing petitioner to death.” Id. at 353. The trial judge
found one aggravating circumstance, that the murder was especially heinous,
atrocious, and cruel, and found no mitigating circumstances. Id. The judge therefore
concluded that the aggravating circumstances outweighed the mitigating and
sentenced Gardner to death.
“As a preface to that ultimate finding, [the trial judge] recited that his
conclusion was based on the evidence presented at both stages of the bifurcated
proceeding, the arguments of counsel, and his review of ‘the factual information
contained in said pre-sentence investigation.’” Id. (citation omitted). The PSI
“contained a confidential portion which was not disclosed to defense counsel.” Id.
“The trial judge did not comment on the contents of the confidential portion. His
findings do not indicate that there was anything of special importance in the
undisclosed portion, or that there was any reason other than customary practice for
not disclosing the entire report to the parties.” Id.
The plurality opinion in Gardner held that, to the extent it allowed “a trial
judge to impose the death sentence on the basis of confidential information which is
not disclosed to the defendant or his counsel[,]” id. at 358, this procedure violated
due process of law. The opinion identified two principle rationales in support. First,
105
the plurality opinion remarked that, because “death is a different kind of punishment
from any other which may be imposed[,]” “[i]t is of vital importance to the defendant
and to the community that any decision to impose the death sentence be, and appear
to be, based on reason rather than caprice or emotion.” Id. at 357–58. Second, the
plurality opinion recognized that “the sentencing process, as well as the trial itself,
must satisfy the requirements of the Due Process Clause.” Id. at 358. This is so
because the “defendant has a legitimate interest in the character of the procedure
which leads to the imposition of the sentence even if he may have no right to object
to a particular result of the sentencing process.” Id. (citation omitted).
Justice White’s concurring opinion explained why Florida’s procedure
violated the Eighth Amendment, and why that conclusion warranted relief without
the need of any due process analysis:
Here the sentencing judge indicated that he selected petitioner Gardner
for the death penalty in part because of information contained in a
presentence report which information was not disclosed to petitioner or
to his counsel and to which petitioner had no opportunity to respond.
A procedure for selecting people for the death penalty which permits
consideration of such secret information relevant to the character and
record of the individual offender, fails to meet the need for reliability
in the determination that death is the appropriate punishment[.] . . .
This conclusion stems solely from the Eighth Amendment’s ban on
cruel and unusual punishments[,] . . . and my conclusion is limited . . .
to cases in which the death penalty is imposed. I thus see no reason to
address in this case the possible application to sentencing proceedings
in death or other cases of the Due Process Clause, other than as the
106
vehicle by which the strictures of the Eighth Amendment are triggered
in this case.
430 U.S. at 363–64 (internal quotations and citations omitted).
The Supreme Court has subsequently “adopted Justice White’s concurrence
as the rule of Gardner and explained that the holding of Gardner is that “‘[a]
procedure for selecting people for the death penalty which permits consideration of
. . . secret information relevant to the character and record of the individual offender’
violates the Eighth Amendment’s requirement of ‘reliability in the determination
that death is the appropriate punishment.’” Muhammad v. Sec’y, Florida Dep’t of
Corr., 733 F.3d 1065, 1073–74 (11th Cir. 2013) (quoting O’Dell v. Netherland, 521
U.S. 151, 162 (1997)).
b.
Proceedings in the Trial Court
After the jury returned its 7-5 recommendation that petitioner be sentenced to
life, the trial court scheduled a separate sentencing hearing as required by Alabama
law. At that hearing, held a few weeks after trial concluded, prosecutors presented
additional witness testimony about a previous incident involving petitioner’s use of
a firearm. Following the witness testimony and summary argument by the parties,
the trial court sentenced petitioner to death. R. at 1262. Several months later, the
State filed a proposed sentencing order. The trial court entered the proposed
107
sentencing order on February 28, 1991, almost one full year following the trial
court’s pronouncement of sentence on March 2, 1990.
The trial court prefaced the sentencing order by articulating the sources upon
which it drew in making its findings:
The findings contained in this order are based upon the evidence
presented at trial, the evidence presented at the sentencing hearing
before the jury, the presentence report with the exception of the victim
impact statement which the Court has not read and will not consider,
and the evidence presented at the sentencing hearing before this Court.
The Court has considered all contentions made by the parties. The
Court has also considered the jury’s advisory verdict.
Doc. 14-8 at 38. In a section titled, “General Findings Concerning the Defendant
and the Crime,” the sentencing order included several findings relating to Louise
Harris that were not in evidence or otherwise part of the record. The petition
summarizes these “findings” as follows:
Among other things, the order stated that Louise Harris had never
obtained a divorce from the victim; that she asked Mr. McCarter to hire
someone to kill her husband; that she engaged in an extramarital affair
with Mr. McCarter; that she did not express concern for her husband
when his employer called to inquire why he was not at work; that she
also did not express grief when the police informed her that her husband
had been murdered; and that she said Mr. McCarter “made love to her
like nobody else could.”
Pet. ¶ 113. See also Doc. 14-8 at 39–40.17
17
Upon review and comparison, it is evident that the “General Findings Concerning the
Defendant and the Crime” section of the trial court’s sentencing order was a “cut-andpaste” of the same section in the sentencing order previously entered by the same trial court
108
The sentencing order then proceeded to discuss aggravating and mitigating
circumstances. Specifically, the trial court found one aggravating circumstance
supported by the evidence: that the murder was committed for pecuniary gain. Doc.
14-8 at 41. Balanced against this was the statutory mitigating circumstance that
petitioner had no prior felony convictions, as well as evidence of non-statutory
mitigating circumstances, including petitioner’s familial connections, commendable
work record, his good behavior after his arrest, and that he “appeared somewhat
remorseful and cooperative.” Id. at 42. Ultimately, the trial court determined “that
the one statutory aggravating circumstance found and considered far outweighs all
of the statutory and non-statutory mitigating circumstances, and that the sentence
ought to be death.” Id. at 43.
c.
State Court Appellate Review
On direct appeal to the ACCA, petitioner claimed that the trial court erred at
sentencing in “considering arbitrary factors in imposing the death sentence” and, in
support, identified the several “findings” regarding Louise Harris that were
previously described. Doc. 14-9 at 107–08. He argued that the sentencing order
in the Louise Harris prosecution. See Doc. 24, Exh. A, C.R. 1254, Harris v. Thomas, 2:11cv-552-WKW-SRW. There are minor edits to convey unique biographical information
about each defendant, but, in all other respects, including the “inflammatory” information
about Harris described in the instant petition, the description of the crime is the same in the
Harris and Sockwell sentencing orders. Petitioner highlighted this comparison in his brief
before the ASC. See Doc. 14-12 at 126–27.
109
shows that the trial judge “allowed extra-judicial matter to interfere with his duty as
a judge.” Id. at 109.18
The ACCA rejected the claim, ultimately finding any error harmless. The
ACCA described the facts pertaining to Harris included in the sentencing order, but
further observed “that several of the general facts as set forth in the trial court’s
sentencing order are reasonable inferences from the evidence produced at trial.”
Sockwell, 675 So. 2d at 30. While acknowledging that some of the facts set forth in
the order “were not based upon evidence contained in the record,” the ACCA held
“that error in the trial court’s sentencing order is not so egregious as to require a new
sentencing order.” Id. In support, the ACCA found that “there was ample evidence
and facts adduced from that evidence in this case that the murder was committed for
pecuniary gain, justifying the imposition of a death sentence.” Id. The ACCA then
articulated its harmless error analysis:
While the trial court refers to some extraneous matters in the sentencing
order, it is clear that the trial court considered the statutory and
nonstatutory mitigating circumstances in imposing sentence upon the
appellant. Additionally, the trial court found only one aggravating
circumstance—that the murder was committed for pecuniary gain. The
sentencing order reflects that the trial court weighed the mitigating
18
As discussed previously, petitioner also raised a constitutional challenge to the trial
court’s sentencing order in his supplemental brief in the ACCA, in which he argued that,
pursuant to Gardner, the trial court’s consideration of evidence that was not presented at
his trial violated his “right, as a capital defendant, to be confronted with and to respond to
any evidence, argument, or other information presented to the sentencer.” See Doc. 14-9
at 139–40.
110
circumstances and the aggravating circumstance and there is no
evidence that the trial court failed to consider the mitigating
circumstances. The sentencing order does not reflect that the court
considered any extraneous matter in imposing sentence against the
appellant. Therefore, because the extraneous matters did not affect the
trial court’s proper weighing of the aggravating and mitigating
circumstances, we find that the court’s referral to some extraneous
matter in its sentencing order was harmless error.
Id.
On appeal to the ASC, petitioner again challenged the trial court’s reliance on
extra-record information about Harris in the sentencing order. Citing Gardner, he
argued that he was deprived of his right “to be confronted with and to respond to any
evidence, argument or other information presented to or relied on by the sentencer.”
Doc. 14-12 at 129. He also argued that, because he was sentenced to death, at least
in part, on evidence that was applicable only to Harris, he was deprived of an
individualized determination of sentence, as required by the Eighth Amendment. Id.
at 130. He also argued, again citing Gardner, that the ACCA’s harmless error
analysis was “legally flawed and factually untenable.” Id. at 131–33. The ASC
summarily denied petitioner’s claim on the merits. See Ex parte Sockwell, 675 So.
2d at 42.
d.
Petitioner’s Argument Pursuant to § 2254(d)(1)
Petitioner argues that the ACCA’s harmless error analysis is subject to review
under the AEDPA and that any implicit determination that his constitutional rights
111
were not violated “involved an unreasonable application of clearly established
federal law.” Pet. ¶ 115.
e.
Application
As discussed previously, there is some ambiguity about whether petitioner
presented Claim Four in the ACCA. While this ambiguity has no bearing on whether
the claim is procedurally defaulted, it potentially determines which state court
decision is subject to AEDPA’s standard of review in this court. If, as the parties
appear to have agreed, the constitutional claim was first presented to the ASC, which
summarily denied it, then there is no reasoned state court appellate decision
addressing the constitutional claim. In that circumstance, this court “must determine
what arguments or theories supported, or . . . could have supported the state court
decision; and then it must ask whether it is possible fairminded jurists could disagree
that those arguments or theories are inconsistent with the holding in a prior decision
of” the Supreme Court. Harrington, 562 U.S. at 102. In that review, this court
would consider whether the ASC reasonably could have determined that there was
no constitutional violation under Gardner, or whether the ASC reasonably could
have determined that any Gardner error was harmless beyond a reasonable doubt
under Chapman.
112
If, on the other hand, the constitutional claim was presented to the ACCA,
which denied it on harmless error grounds, and then was presented to the ASC,
which summarily affirmed the ACCA, then this court is to presume that the ASC
relied upon the ACCA’s reasoning and “look through” its summary decision to apply
AEDPA’s standard of review to the ACCA’s reasoned decision. Wilson, 138 S. Ct.
at 1192. Because the ACCA applied harmless error analysis and did not plainly
determine whether a constitutional violation under Gardner occurred, there is no
adjudication of that constitutional question to which this court would apply
AEDPA’s standard of review.
Instead, this court would review the ACCA’s
harmless error analysis pursuant to the AEDPA/Chapman standard.
Ultimately, this court need not hack its way out of this thicket because, no
matter which state court decision is operative for AEDPA purposes, petitioner
cannot show that any error under Gardner had a substantial and injurious effect or
influence on the trial judge’s determination of his sentence.19 Because he cannot
show that any error was not harmless under Brecht, Claim Four may be denied
irrespective of any AEDPA review of the decisions of the state courts. See, e.g.,
Mansfield, 679 F.3d at 1308 (“Similarly, a federal court may deny habeas relief
19
Gardner error is subject to harmless error review under Brecht. See Vining v. Sec’y,
Dep’t of Corr., 610 F.3d 568, 570–71 (11th Cir. 2010); id. at 571 n.3 (recognizing that,
although Brecht describes a “prejudicial impact on the jury,” the same analysis applies “in
cases where the judge may accept or reject a jury recommendation”).
113
based solely on a determination that the constitutional error is harmless under the
Brecht standard.”).
Several circumstances demonstrate that the paramount concerns of Gardner
were not necessarily implicated by the trial court’s sentencing order. Start with what
has come to be recognized as the applicable rule of Gardner. Justice White’s
concurring opinion was concerned with a “‘procedure for selecting people for the
death penalty which permits consideration of . . . secret information relevant to the
character and record of the individual offender[.]’” O’Dell, 521 U.S. at 162
(quoting Gardner, 430 U.S. at 364) (emphasis supplied).
Here, even if the facts about Louise Harris included in petitioner’s sentencing
order could be described as “secret,” in that they were not revealed to petitioner in a
manner that allowed him to rebut them before he was sentenced, it cannot be argued
that they are “relevant to the character and record” of petitioner. Were the extrarecord facts included in the sentencing order even arguably “relevant” to petitioner,
the ambiguity about what the sentencer considered that was determinative in
Gardner would be conspicuous. Here, however, the Harris facts that are not
reasonable inferences from the record—namely, the status of her marriage, her
callous indifference to her husband’s death, her comments about McCarter’s sexual
prowess—plainly have nothing to do with petitioner. It is therefore more plausible
114
here than in Gardner that a reviewing court can separate the wheat from the chaff
and reliably discern whether the facts pertaining exclusively to petitioner’s
“character and record” are those that that the sentencing court actually relied upon
in imposing the sentence. This circumstance distinguishes petitioner’s claim from
both the due process and Eighth Amendment rationales underpinning the separate
opinions in Gardner.
More important, the overall purpose, structure, and content of the sentencing
order make clear that any Gardner error was harmless under Brecht. As indicated
by the ACCA, the sentencing order’s ultimate function is “to allow an appellate court
to review a death sentence.” Sockwell, 675 So. 2d at 30. Under Alabama law, it is
the presence, or absence, of aggravating and mitigating circumstances, and their
relative weighing, that determines whether a defendant may be sentenced to death.
It is apparent here that the sentencing order’s inclusion of extraneous facts about
Louise Harris did not intrude upon the trial court’s findings respecting the presence
of the pecuniary gain aggravating circumstance. The sentencing order’s findings
respecting the aggravating circumstance are separately situated from the “general
findings” about Louise Harris and in no way rely upon or relate to any of the
extraneous facts about Harris. See Doc. 14-8 at 40. Likewise, the sentencing order’s
weighing of aggravating and mitigating circumstances does not suggest any
115
improper consideration of facts about Harris. The sentencing order is explicit that
“the Court is convinced that the one statutory aggravating circumstance found and
considered far outweighs all of the statutory and non-statutory mitigating
circumstances, and that the sentence ought to be death.” Id. at
42–43.
Petitioner’s answer to this circumstance is that the same argument could be
made about Gardner, “where the trial judge did not comment on the contents of the
confidential portion” of the PSI or “indicate that there was anything of special
importance in the undisclosed portion.” Doc. 26 at 27 (quotations and citation
omitted). This argument has at least two flaws, however. First, Gardner was not
before the Supreme Court on habeas review and the error identified in Gardner was
not subject to Brecht’s harmless error standard. Second, in Gardner the sentencer
did say that he relied upon the PSI, with no qualification that he relied upon only the
non-confidential portion of the document. Thus, there simply was no way to know
whether anything in the confidential portion was germane to the sentence. Here, by
contrast, the essential findings supporting the sentence—the presence of aggravating
and mitigating circumstances, and their relative weight—are in no way predicated
on any “secret,” or previously undisclosed, facts about Louise Harris.
Petitioner concludes by arguing that “there is simply no conceivable reason
(and respondent provides none) why the trial judge would include extra-record
116
information in his sentencing order if he did not even consider it in determining the
sentence.” Doc. 26 at 28 (emphasis petitioner’s). On the contrary, there is a
conceivable—even practical—reason, and, while it does not commend the trial
court’s diligence, it most likely explains what happened. The reason Sockwell’s
sentencing order includes the extra-record information about Louise Harris is that it
was constructed from the template of the Louise Harris sentencing order, with only
minor edits to reflect Sockwell’s unique biographical information. The scrivener’s
attention to Sockwell’s respective biographical information unfortunately did not
extend to a scrupulous description of the “General Findings” about “The Crime”
limited to the evidence admitted at Sockwell’s trial.
No doubt, this level of inattention in capital sentencing should not be
condoned. But apparent inattention does not mean that petitioner was sentenced to
death because of, or for the same reasons as, Louise Harris, or that any error in
including extra-record information about Harris influenced the trial court’s sentence.
Petitioner was accused of shooting Isaiah Harris in the face with a shotgun in
exchange for $50 and the hope of further payment after the deed. The jury convicted
him of capital murder for pecuniary gain. The jury’s verdict established the only
aggravating circumstance the trial court relied upon in its sentencing determination.
The trial court simply disagreed with the advisory jury’s weighing of aggravating
117
and mitigating circumstances. Considering these facts against what reasonably
appears to be the trial court’s failure to properly scrutinize a proposed sentencing
order, this court can say, “with fair assurance,” that the trial court’s sentencing
determination was not “substantially swayed” by consideration of any extraneous,
albeit “inflammatory,” facts about Louise Harris. O’Neal, 513 U.S. at 437–38.
Accordingly, petitioner cannot show actual prejudice pursuant to Brecht.
5.
Claim Five
Claim Five is petitioner’s claim that he cannot constitutionally be sentenced
to death because he is intellectually disabled. He first presented this claim to the
state court in collateral review pursuant to Rule 32 of the Alabama Rules of Criminal
Procedure. See Doc. 14-18 at 15–16. The operative amended Rule 32 petition
presenting this claim was summarily denied by the Circuit Court of Montgomery
County. See Doc. 14-25 at 159–160. The ACCA affirmed in a reasoned decision.
Doc. 14-25 at 180–183. The ASC denied certiorari. Ex parte Sockwell, 140 So. 3d
945 (Ala. 2013). The parties are in agreement that the ACCA’s decision rejected
petitioner’s claim on the merits, and that, accordingly, AEDPA’s standard of review
governs Claim Five. See Pet. ¶¶ 130–31; Ans. (Doc. 13) ¶ 66.
118
a.
Clearly Established Federal Law
In Atkins v. Virginia, 536 U.S. 304, 321 (2002), the Supreme Court held that
the Eighth Amendment forbids the execution of intellectually disabled persons.
Atkins defined intellectual disability by reference to the American Association of
Mental Retardation’s definition:
Mental retardation refers to substantial limitations in present
functioning. It is characterized by significantly subaverage intellectual
functioning, existing concurrently with related limitations in two or
more of the following applicable adaptive skill areas: communication,
self-care, home living, social skills, community use, self-direction,
health and safety, functional academics, leisure, and work. Mental
retardation manifests before age 18.
Id. at 308 n.3 (emphasis removed).
The Court in Atkins “granted the states some discretion to develop standards
for assessing whether an offender is intellectually disabled.” Smith v. Comm’r,
Alabama Dep’t of Corr., 67 F.4th 1335, 1344 (11th Cir. 2023) (citation omitted).
Shortly after Atkins, the ASC adopted “the broadest definition of mental retardation”
for resolving Atkins claims in Alabama:
[A] defendant, to be considered mentally retarded, must have
significantly subaverage intellectual functioning (an IQ of 70 or below),
and significant or substantial deficits in adaptive behavior.
Additionally, these problems must have manifested themselves during
the developmental period (i.e., before the defendant reached age 18).
119
Ex parte Perkins, 851 So. 2d 453, 456 (Ala. 2002). In addition, the defendant must
show that these “problems” were present at the time the crime was committed. Smith
v. State, 213 So. 3d 239, 252 (Ala. 2007).
b.
Proceedings in the Rule 32 Court
The operative amended Rule 32 petition presented petitioner’s Atkins claim in
seven numbered paragraphs. See Doc. 14-18 at 15–16. Only two of these paragraphs
arguably alleged any discrete facts, as opposed to conclusions, in support of
petitioner’s Atkins claim. The third paragraph alleged as follows: “Alabama Lunacy
Commission reports prepared after Petitioner’s arrest, from November 1988, showed
him as having a ‘borderline intelligence.’ Petitioner’s Montgomery Public School
records from September 1974 indicate Petitioner’s IQ at 64.” The fifth paragraph
alleged that petitioner’s intellectual disability “prevented him, in this case, from
providing any meaningful assistance to counsel during the trial.” The remainder of
the paragraphs generally described the holding and rationale of Atkins and allege that
petitioner is entitled to Atkins relief.
The Circuit Court granted the State’s motion to dismiss the Rule 32 petition
without affording an evidentiary hearing. On the Atkins claim, the Circuit Court
concluded that petitioner “is not mentally retarded.” Doc. 14-25 at 159. The Circuit
Court recited Alabama’s definition of intellectual disability and ruled as follows:
120
“Sockwell has failed to allege or provide any evidence of ‘significant or substantial
deficits in adaptive behavior.’ In as much as Sockwell’s second amended petition
has failed to support his claim, this petition is insufficiently pleaded and, therefore,
DISMISSED.” Id. at 160 (citations omitted).
c.
State Court Appellate Review
The ACCA affirmed the Rule 32 court’s summary dismissal of petitioner’s
Atkins claim:
Sockwell argues that the trial court should not have held that he
failed to adequately plead the second and third prongs set forth in Ex
parte Perkins because, he says, “[T]he common thread that is pleaded
in Petitioner's Rule 32 [petition] is one of adaptive deficits and mental
impairment beginning around age 12.” A postconviction petition “must
contain a clear and specific statement of the grounds upon which relief
is sought, including full disclosure of the factual basis of those
grounds.” Rule 32.6(b), Ala. R. Crim. P. To satisfy Rule 32.6(b),
Sockwell was required to plead full facts to support each individual
claim. Thus, contrary to what Sockwell now argues, it is not sufficient
that the facts necessary to support this claim might somehow be gleaned
from other parts of the petition that raise other claims and pieced
together to form a fully-pleaded claim. Sockwell pleaded a conclusion
that he is mentally retarded. In this claim the only facts Sockwell
alleged in support of the claim are: “Alabama Lunacy Commission
reports prepared after Petitioner’s arrest, from November 1988, showed
him as having a ‘borderline intelligence’. Petitioner’s Montgomery
Public School records from September 1974 indicate Petitioner’s IQ at
64.”
Sockwell clearly failed to plead facts on which an Atkins claim
can be based. An allegation of borderline intellectual functioning
actually contradicts an Atkins claim. The remaining allegation – a
subaverage IQ score in public school -- is not sufficient to plead any of
the three prongs of Ex parte Perkins. Therefore, the trial court correctly
121
found this claim to be insufficiently pleaded, and correctly summarily
dismissed it. Sockwell is not entitled to relief as to this claim.
Doc. 14-25 at 182–83 (quotations and citations omitted). Because the ACCA
affirmed the Rule 32 court’s summary dismissal due to petitioner’s insufficient
pleading of his Atkins claim, the ACCA declined to “address the trial court’s
alternative holding that Sockwell could not establish” intellectual disability. Id. at
183 n.5. As noted previously, the ASC denied petitioner’s request for certiorari
review. Doc. 14-25 at 214–16.
d.
Petitioner’s Argument Pursuant to § 2254(d)(1)
Petitioner alleges that the ACCA’s conclusion that he did not plead sufficient
facts to support his Atkins claim is an adjudication of the merits of the claim. Pet. ¶
130. He maintains that the ACCA unreasonably applied Atkins because he alleged
in his Rule 32 petition that he received an IQ score of 64 when he was twelve,
“clearly indicating significantly subaverage intellectual functioning.” Id. at ¶ 131.
He further alleges that his Rule 32 petition “pleaded a number of facts indicating
significant or substantial deficits in adaptive behavior[.]” Id. He appears to concede,
however, that these facts were alleged in disparate portions of the Rule 32 petition
as factual support for unrelated claims. Id. Nevertheless, he argues the ACCA
unreasonably failed to recognize these factual allegations in its assessment of the
sufficiency of his pleading of the Atkins claim. Id. He also argues that he is entitled
122
to an evidentiary hearing in this court because he “was improperly hamstrung in the
state courts from further developing his Atkins claim[.]” Id. at ¶ 132.
e.
Application
The ACCA’s conclusion that petitioner failed to adequately plead facts to
support his Atkins claim was not contrary to, or an unreasonable application of,
Atkins, and was not based upon an unreasonable determination of fact. Petitioner
plainly did not plead in the relevant part of his petition facts establishing that, both
before the age of eighteen and at the time of the crime, he had significant or
substantial deficits in adaptive behavior. Petitioner does not even argue that he
pleaded such facts in his Atkins claim in his amended Rule 32 petition. Instead, he
argues that stray factual allegations taken from other portions of the amended Rule
32 petition could have provided the requisite allegations about deficits in adaptive
functioning. See Pet. ¶ 131.
For example, petitioner cites the amended Rule 32 petition’s allegations that,
inter alia, petitioner “is illiterate, grew up in poverty, was recommended for special
education classes (which his mother refused to allow), left school after the ninth
grade, and had an IQ in the low 60s.” Doc. 14-17 at 131–32. But these allegations
were presented as part of the “Factual Innocence” section of Claim One of the
amended Rule 32 petition, which alleged as follows:
123
THE PROSECUTION FAILED TO PROVE PETITIONER’S GUILT
BEYOND A REASONABLE DOUBT AS TO THE CHARGE OF
CAPITAL MURDER AND MURDER, AND THE CONVICTION
HEREIN AND SENTENCE OF DEATH THERFORE DEPRIVED
PETITIONER OF HIS RIGHT TO DUE PROCESS, IN VIOLATION
OF THE FIFTH, EIGHTH AND FOURTEENTH AMENDMENTS
OF THE CONSITUTION OF THE UNITED STATES, AND THE
CONSITUTTION AND LAWS OF ALABAMA.
Id. at 129. Furthermore, these allegations appear to have been offered, not as proof
of intellectual disability, but as a predicate to support petitioner’s claim that his
inculpatory statement to investigators was false.
Petitioner also cites the Rule 32 petition’s allegation that he “has a long, well
documented history of mental retardation and impairment.” Doc. 14-17 at 134. But
this allegation was presented in his claim alleging that counsel was ineffective in
pretrial investigation of petitioner’s background and “mental impairments.” Id.
Likewise, petitioner points to the amended Rule 32 petition’s allegation that counsel
“did not present school records to reflect [his] mental retardation, adjustment
problems, need for special education placement.” Id. at 144. But, again, these
allegations were presented in support of the Rule 32 petition’s claim that counsel
rendered ineffective assistance at the penalty phase of trial.
Even if all of the above scattered Rule 32 allegations describing petitioner’s
impairments adequately alleged significant or substantial deficits in adaptive
behavior pursuant to Perkins, and this court does not conclude that they do,
124
petitioner has pointed to no authority that would require a state court to scour a
lengthy petition in search of allegations that might support an Atkins claim that the
petitioner otherwise failed to properly support with clear, relevant factual
allegations. As the ACCA observed, Rule 32.6(b) certainly requires more, and
nothing in Atkins or any other clearly established federal law renders that conclusion
unreasonable.
At bottom, the Atkins claim in petitioner’s amended Rule 32 petition makes
no reference to the definition of intellectual disability adopted by the Alabama
Supreme Court and does not even arguably present any factual allegations to
establish at least one of the three requirements of Alabama’s test. Instead, apart from
a single allegation about petitioner’s IQ score from school records and an assessment
after his arrest that he functioned in the “borderline” range of intelligence, the Rule
32 petition only presents several conclusory statements that petitioner is “mentally
retarded” and due to have his sentence vacated.
Hence, the ACCA did not unreasonably apply Atkins in concluding that
petitioner failed to plead sufficient facts to substantiate his claim. See Powell v.
Allen, 602 F.3d 1263, 1272 (11th Cir. 2010) (concluding that the state court did not
unreasonably apply Atkins when it summarily dismissed Atkins claim for insufficient
pleading because the Rule 32 petition alleged only that the petitioner “was diagnosed
125
as mildly mentally retarded in the fifth grade”). See also Smith v. Campbell, 620 F.
App’x 734, 748 n.20 (11th Cir. 2015) (remarking, “where a state court accurately
identifies what allegations were included in a petition and concludes that those
allegations failed to meet a pleading requirement, that is a legal conclusion, which
is subject to review under § 2254(d)(1)). Nor is the ACCA’s factual determination
that petitioner only “pleaded a conclusion that he is mentally retarded” an
unreasonable determination of the facts based upon the record before the ACCA.
See Smith, 620 F. App’x at 748–49 (state court’s “factual determination about
whether” Rule 32 petition’s Atkins claim “recounted any facts at all or only
conclusory allegations” is reviewed pursuant to § 2254(d)(2)).
Finally, because petitioner has not demonstrated that the ACCA’s decision
was contrary to, or an involved an unreasonable application of, clearly established
federal law, and was not based upon an unreasonable determination of fact, his
request for an evidentiary hearing in this court must be denied. This court is required
to deny habeas relief on petitioner’s Atkins claim if he cannot satisfy AEDPA’s
standard of review. § 2254(d). In that review, this court is permitted to consider
only the record that was before the state court at the time it rendered its decision
denying the Atkins claim on the merits. Cullen v. Pinholster, 563 U.S. 170, 181–82
(2011). Because, for the reasons given above, petitioner cannot satisfy AEDPA’s
126
standard of review, he is not entitled to a federal evidentiary hearing on his Atkins
claim. See, e.g., Jenkins v. Comm’r, Alabama Dep’t of Corr., 963 F.3d 1248, 1278
n.16 (11th Cir. 2020).
V. CERTIFICATE OF APPEALABILITY
In pertinent part, Rule 11(a) of the Rules Governing Section 2254 Cases in
the United States District Courts provides as follows: “The district court must issue
or deny a certificate of appealability when it enters a final order adverse to the
applicant. . . . If the court issues a certificate, the court must state the specific issue
or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).”
A certificate of appealability is necessary before a petitioner may pursue an
appeal in a habeas corpus proceeding. 28 U.S.C. § 2253. To mandate the issuance
of a certificate of appealability, a petitioner must make a “substantial showing of the
denial of a constitutional right.” § 2253(c)(2); see also Barefoot v. Estelle, 463 U.S.
880, 893 (1983). Generally, such a showing requires something more than absence
of frivolity, and it is a higher standard than the good faith requirement of 28 U.S.C.
§ 1915(d). See Clements v. Wainwright, 648 F.2d 979, 981 (5th Cir. 1981). In short,
a petitioner must show “that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed
127
further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot, 463 U.S. at
893 and n.4) (internal quotations omitted). Based upon careful consideration,
petitioner has made a substantial showing of the denial of a constitutional right on
the following issue:
Whether the State exercised its peremptory challenge of veniremember Eric
Davis in a racially discriminatory manner.
Accordingly, it is ORDERED that a Certificate of Appealability is granted as
to the issue listed above.
VI. CONCLUSION
For the foregoing reasons, it is ORDERED that Sockwell’s petition for writ
of habeas corpus is DISMISSED without an evidentiary hearing.
An appropriate final judgment will follow.
DONE this 29th day of September, 2023.
/s/ W. Keith Watkins
UNITED STATES DISTRICT JUDGE
128
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?