Carruth v. Thomas (DEATH PENALTY)

Filing 61

ORDER: Petitioner is under a sentence of death and is appealing the judgment dismissing his petition for habeas corpus relief (Doc. 49 ). Before the court is Petitioner's Application for a Certificate of Appealability (Doc. 51 ), which is c onstrued as a motion. Accordingly, it is ORDERED that Petitioner's Motion for a Certificate of Appealability (Doc. 51 ) is GRANTED as to the six issues listed above and otherwise is DENIED. Signed by Honorable Judge William Keith Watkins on 11/8/2022. Furnished Appeals Clerk. (dmn, )

.IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
MICHAEL DAVID CARRUTH,
Petitioner,
v.
JOHN Q. HAMM, Commissioner,
Alabama Department of Corrections,
Respondent.

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CASE NO. 2:14-CV-1107-WKW
[WO]

ORDER
Petitioner is under a sentence of death and is appealing the judgment
dismissing his petition for habeas corpus relief (Doc. # 49). Before the court is
Petitioner’s Application for a Certificate of Appealability (Doc. # 51), which is
construed as a motion. The motion is due to be granted in part and denied in part.
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.” 28 U.S.C. § 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).

Based upon careful consideration, Petitioner has made a substantial showing
of the denial of a constitutional right on the following issues:
(1)

Whether trial counsel were ineffective in failing to investigate and

present mitigating evidence in the penalty phase (see Doc. # 48 at 44–51; Doc. # 51
¶ 7);
(2)

Whether the issue concerning trial counsel’s failure to present

mitigating evidence in the penalty phase is procedurally barred (see Doc. # 48 at 44–
51; Doc. # 51 ¶ 8);
(3)

Whether appellate counsel was ineffective in failing to notify Carruth

that the Alabama Court of Criminal Appeals had overruled an application for
rehearing and to advise Carruth of further available appellate proceedings (see Doc.
# 48 at 86–88; Doc. # 51 ¶ 11);
(4)

Whether the issue concerning appellate counsel’s failure to notify

Carruth that the Alabama Court of Criminal Appeals had overruled an application
for rehearing and to advise Carruth of further available appellate options is
procedurally barred (see Doc. # 48 at 77–86; Doc. # 51 ¶ 12);
(5)

Whether appellate counsel was ineffective in failing to argue that the

prosecution engaged in prosecutorial misconduct in the guilt/innocence closing
argument by telling the jury that the punishments of life without the possibility of

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parole or death were the punishment options and that anything else did not have
those options (see Doc. # 48 at 183–88; Doc. # 51 ¶ 13 (partially granting)); and
(6)

Whether Carruth was deprived of his right to an impartial jury and due

process of law guaranteed him by the Sixth and Fourteenth Amendments to the
United States Constitution by premature jury deliberations (see Doc. # 48 at 158–
72; Doc. # 51 ¶ 18).
Accordingly, it is ORDERED that Petitioner’s Motion for a Certificate of
Appealability (Doc. # 51) is GRANTED as to the six issues listed above and
otherwise is DENIED.
DONE this 8th day of November, 2022.
/s/ W. Keith Watkins
UNITED STATES DISTRICT JUDGE

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