Waldrop v. Allen et al (DEATH PENALTY)

Filing 39

MEMORANDUM OPINION AND ORDER denying the motion to hold an evidentiary hearing, as further set out in order. Signed by Honorable William Keith Watkins on 7/2/10. (djy, )

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Waldrop v. Allen et al (DEATH PENALTY) Doc. 39 IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION B O B B Y WAYNE WALDROP, P e titio n e r, v. R IC H A R D ALLEN, et al., R e s p o n d e n ts . ) ) ) ) ) ) ) ) ) C A S E NO. 3:08-CV-515-WKW [WO] M E M O R A N D U M OPINION AND ORDER B o b b y Wayne Waldrop, an Alabama inmate sentenced to death, seeks relief from that s e n te n c e in this habeas corpus proceeding. (See Doc. # 1.) Currently before the court is Mr. W a ld ro p 's motion (Doc. # 30) for an evidentiary hearing to admit evidence regarding his trial c o u n s e l's alleged inadequate assistance. Because Mr. Waldrop has not met the requisite s ta n d a rd for such a hearing, his motion is due to be denied. I . BACKGROUND O n August 6, 1999, Mr. Waldrop was convicted by the Circuit Court of Randolph C o u n ty, Alabama, of the murder of his grandparents, Sherrell and Irene Prestridge.1 Because this opinion concerns only whether an evidentiary hearing should be held, the facts of the crime will be discussed only as relevant to the analysis of that question. The Alabama Court of Criminal Appeals recited the facts of the case in considerable detail. See Waldrop v. State, 859 So. 2d 1138, 1144-45 (Ala. Crim. App. 2000). Summarized, Waldrop and his wife Clara resided with Waldrop's grandparents. The grandfather had heart and hip problems, and the grandmother was diabetic, bedridden and blind. Waldrop argued with his grandfather about money, and began to stab his grandfather while his grandmother screamed. Eventually, Waldrop and his wife inflicted 43 stab and cut wounds on the grandfather, and 38 stab and cut wounds on the grandmother. Before she was mortally wounded, the grandmother told Waldrop she loved him. After the grandfather was mortally wounded, Waldrop's wife, at Waldrop's instruction, took the grandfather's wallet from his body. 1 Dockets.Justia.com Although the jury recommended, by a vote of 10-2, that Mr. Waldrop be sentenced to life im p ris o n m e n t, the trial judge overruled the recommendation and sentenced Mr. Waldrop to d e a th . (Doc. # 30, at 3-4.) On direct appeal, the Alabama Court of Criminal Appeals initially re m a n d e d to the trial court for the issuance of a new sentencing order, and then affirmed both th e conviction and sentence of death. Waldrop v. State, 859 So. 2d 1138 (Ala. Crim. App. 2 0 0 0 ) (Waldrop I). The Supreme Court of Alabama affirmed the decision of the Court of C rim in a l Appeals. Ex parte Waldrop, 859 So. 2d 1181 (Ala. 2002), cert. denied, Waldrop v . Alabama, 540 U.S. 968 (2003) (Waldrop II). Waldrop then sought postconviction review in state court. The state trial court's denial of relief was affirmed by the Court of Criminal A p p e a ls , and the Supreme Court of Alabama declined to review that decision. Waldrop v. S ta te , 987 So. 2d 1186 (Ala. Crim. App. 2007) (Waldrop III). Having exhausted his avenues o f relief in state court, Waldrop timely sought federal habeas corpus relief in this court, p u rs u a n t to 28 U.S.C. 2254. The issue to be decided in this opinion concerns the manner in which the state trial court conducted the hearing for postconviction relief, as filtered th ro u g h the Alabama Court of Criminal Appeals' opinion on appeal from that hearing 2 I I. STANDARD OF REVIEW B e c a u s e Mr. Waldrop filed his federal habeas petition after the effective date of the A n tite rro ris m and Effective Death Penalty Act of 1996 ("AEDPA"), "this case is governed b y the provisions of 28 U.S.C. 2254 as modified by the Act." Valle v. Sec'y for Dep't of 2 The parties and state courts sometimes refer to this proceeding as a "Rule 32 hearing," in reference to Alabama Rule of Criminal Procedure 32. 2 Corr., 459 F.3d 1206, 1211 (11th Cir. 2006). With respect to a legal issue, if the state court h a s adjudicated a claim on its merits, habeas relief may be granted only if the state court d e c is io n was contrary to, or involved an unreasonable application of clearly established law a s determined by the Supreme Court of the United States. 2254(d)(1). Relief may not be g r a n te d on the basis of an issue of fact unless the state court's adjudication "resulted in a d e c is io n that was based on an unreasonable determination of the facts in light of the evidence p re s e n te d in the State court proceeding." 2254(d)(2). The state court's factual findings are p re s u m e d correct, and the petitioner must rebut them by clear and convincing evidence. 2254(e)(1). A s Section 2254(d)(2)'s reference to "the evidence presented in the State court p ro c e e d in g " implies, a federal habeas court cannot ordinarily hold an evidentiary hearing to a d m it additional evidence about a claim if the petitioner "failed to develop the factual basis o f [the] claim in State court." 2254(e)(2). If a petitioner has not been diligent in d e v e lo p in g the factual basis for his claim in state court, he may obtain a federal evidentiary h e a rin g only if he meets the narrow exceptions in subsections 2254(e)(2)(A) and (B).3 See W illia m s v. Taylor, 529 U.S. 420, 437 (2000); Valle, 459 F.3d at 1216; Breedlove v. Moore, 2 7 9 F.3d 952, 959-60 (11th Cir. 2002). As the Eleventh Circuit recently explained: [ T ]h e question of whether a petitioner must satisfy 2254(e)(2)'s requirements tu rn s on whether the petitioner or his counsel were diligent in developing the re c o rd in the state habeas proceedings. If so, a federal court may grant an 3 Waldrop does not claim he meets the requirements for this exception, but rather that he was diligent in developing the facts in the state court. 3 evidentiary hearing without further regard for the provisions of 2254(e)(2). If not, 2254(e)(2)'s requirements must be met. Ward v. Hall, 592 F.3d 1144, 1160 (11th Cir. 2010). Still, if "`the proffered evidence would n o t affect the resolution of the claim,'" no hearing need be held. Valle, 459 F.3d at 1216 (q u o tin g Bolender v. Singletary, 16 F.3d 1547, 1555 n.9 (11th Cir. 1994)). For purposes of federal review, the relevant state court decision "is the last reasoned s ta te court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citing Ylst v . Nunnemaker, 501 U.S. 797, 804-06 (1991)). III. DISCUSSION W a ld ro p seeks a hearing in order to present two types of evidence not permitted by th e state habeas court: first, the expert testimony of a psychologist and social worker (Doc. # 30, at 7, 11), and second, testimony about his family life and childhood that the state court b a rre d as hearsay. (Doc. # 30, at 13.) A. State Rule 32 Trial Court Proceedings W a ld ro p argues that he exercised due diligence in attempting to introduce the factual p re d ic a te for the relevant ineffective assistance habeas claim, but was unable to do so b e c a u s e the state habeas trial court made "arbitrary and erroneous rulings" preventing him f ro m introducing relevant testimony from a psychiatrist and social worker. (Doc. # 30 at 2.) To evaluate the Alabama Court of Criminal Appeals' treatment of this claim, it is first n e c e s s a ry to recite the proceedings in the state habeas trial court in some detail. 4 The state habeas proceedings began with Waldrop's April 23, 2004 filing of a Petition f o r Relief from Judgment in the state habeas trial court. (R-52.) That Petition was 61 pages lo n g and contained relatively detailed statements of each of Waldrop's grounds for relief f ro m both his conviction and the sentence of death. Section I of the Petition was entitled " M r. Waldrop was denied effective assistance of counsel . . . because counsel did not a d e q u a te ly investigate evidence critical to his defense." (R-52 at 4 (capitalization removed)). This section contains six subsections denominated with the letters A through F. Some s u b s e c tio n s , such as D, were given headings explicitly reflecting that they concerned either th e guilt or penalty phase of Waldrop's trial. (R-52 at 9 ("Trial Counsel Did Not Adequately In v e s tig a te . . . Mr. Waldrop's Penalty Phase Defense.").) Subsection I.D. contained lengthy a lle g a tio n s regarding trial counsel's alleged failures to investigate factual evidence relevant to the penalty phase, but did not make claims concerning failure to call expert witnesses. Subsections E and F were titled less clearly than subsection D. Subsection E's h e a d in g was "Counsel Did Not Investigate Mental Health Evidence" (R-52 at 31), and s u b s e c tio n F's was "Counsel Did not Seek the Assistance of an Independent Psychologist, S o c ia l Worker, and Mitigation Expert." (R-52 at 31.) The text of subsection E, which c o n s is ts of only one paragraph, clarifies that it relates to both the guilt and penalty phases of th e trial, and is based on trial counsel's alleged failure to discover facts about Waldrop's m e n ta l health history by speaking to his family members. Subsection F is lengthier, c o n ta in in g 19 paragraphs. The first states that a "psychologist would have testified during 5 the guilt/innocence phase . . . and provided penalty-phase testimony." (R-52, at 31-32.) Subsequent paragraphs give justifications for the need for a psychologist that appear to relate to both phases without clear delineation. The need for a social worker and mitigation expert is not addressed until the final paragraph of this subsection, which states that they would be re le v a n t to the penalty phase of the trial. (R-52, at 34.) Sections II and III of the Petition e x p lic itly relate to the guilt and penalty phases, respectively. (R-52 at 34, 43.) Finally, S e c tio n s IV, V, and VI concerned alleged errors during voir dire, withholding of evidence b y the state, and the trial judge's bias. (R-52 at 50, 57, 58.) The state answered Waldrop's Petition. (R-53 at 73.) After some preliminary p ro c e e d in g s , the state filed a Motion to Summarily Dismiss Claims in the Rule 32 Petition. (R-55.) The motion sought the dismissal of all claims except those contained in subsections I.D . and III.A. of Waldrop's Petition, relating to trial counsel's failure to investigate factual e v id e n c e relevant to the penalty phase of the case. The state moved to dismiss subsections I.E . and I.F., treating them as stating claims relevant to the guilt phase only, and did not address the alleged need for additional mental health investigation or psychological testimony w ith respect to the penalty phase. (R-55 at 152-54.) Waldrop opposed the state's motion (R-56 at 168), but the opposition did not e x p lic itly object to the state's characterization of subsections I.E. and I.F. as relating only to th e guilt phase.4 The court granted the state's motion in its entirety. (14 R. 194 ("March 18 4 Waldrop did describe the state as "address[ing] a circumscribed version of Mr. Waldrop's allegations" with respect to trial counsel's failure to seek the assistance of a psychologist, social worker, 6 Order").) The court noted that the claims brought in subsection I.D., "concerning potential m itig a tin g evidence that trial counsel did not, but should have presented," were not d is m is s e d , and "out of an abundance of caution, the Court will conduct an evidentiary h e a rin g on this claim." (14 R. at 199-200.) The court dismissed the claim in subsection I.E., f in d in g it to be procedurally barred because it had been already addressed on direct appeal (1 4 R. 200), and "without merit" because Waldrop had not pursued a mental health defense a t trial. (15 R. 201.) The court dismissed the claim in subsection I.F., after discussing only tw o aspects of the claim relevant to the guilt phase, and concluding that Waldrop had e s ta b lis h e d neither the cause nor the prejudice portions of the ineffective assistance of c o u n s e l test. (15 R. 201-03.) At no point in the discussion of the reasons for the dismissal o f the claims in subsections I.E and I.F. were penalty phase claims discussed. After the is su a n c e of the March 18 Order, only the claims pled in subsections I.D. (relating to failure to investigate Waldrop's factual background, but not mentioning experts) and III.A. (relating to failure to present the same evidence in court) remained in the case. These subsections w e re explicitly denominated as relating to the penalty phase only. H a v in g ruled on the state's motion to dismiss, on August 24, 2005, the court entered a n order setting an evidentiary hearing on the remaining claims for November 21, 2005, and im p o s in g certain discovery requirements. (15 R. 271.) A witness list was required 14 days b e f o re the hearing, and an exhibit list 30 days before the hearing. (15 R. 271.) For and mitigation expert. (R-56 at 173.) This objection, however, appears to relate to the state's failure to describe the guilt-phase claims in full, rather than its failure to discuss the penalty-phase claims. 7 witnesses, the order required "a description of what type of expert the person is alleged to b e ," a C.V., "the specific claims the witness will give testimony to support," name, address, a n d telephone number, and "a statement concerning the testimony expected by each witness w h o is to be subpoenaed by [a party] and an explanation as to why this testimony is m a te ria l." (15 R. 271.) The first two requirements pertained only to expert witnesses, while th e rest applied to all witnesses. The state objected to this order on the basis that Alabama la w and rules did not require any pre-hearing discovery from the state in a Rule 32 p ro c e e d in g . (15 R. 272-75) Waldrop argued that the original order was correct (15 R. 294), b u t the court sustained the state's objection. (15 R. 299.) Accordingly, only Waldrop was re q u ire d to proffer discovery prior to the hearing. Waldrop filed a renewed objection to the discovery order on October 18, 2005, a rg u in g solely that the court had misconstrued Alabama law and that the state should be c o m p e lle d to provide pre-hearing discovery. (15 R. 301.) The record does not reveal that th e state court entered a written ruling on this objection. The state, however, moved on N o v e m b e r 10, 2005, to quash subpoenas to and preclude the testimony of Waldrop's w itn e s s e s at the upcoming hearing, based on Waldrop's failure to comply with the August 2 4 discovery order; in the alternative, the state requested that Waldrop be required to provide a more definite statement. (15 R. 304.) On November 14 (seven days before the hearing), th e court granted the state's motion and required Waldrop to provide the state with a more d e f in ite statement as to the expected testimony of his 22 proposed witnesses no later than 8 November 17. (15 R. 310.) On November 16, Waldrop filed a response to the November 1 4 order, arguing that, by the terms of the original discovery order, he should be required to p ro v id e "a statement concerning the testimony expected" from each witness and its m a te ria lity only for the 10 witnesses he had subpoenaed, not all 22. (15 R. 311.) Waldrop f u rth e r argued that the factual statements with respect to these ten witnesses were sufficient u n d e r the original order. (15 R. 312.) No further written pleadings or orders were entered b e f o re the hearing. T h e hearing commenced as scheduled on November 21, 2005. (21 R. 1 (beginning o f hearing transcript).) The state noted that Waldrop had not complied with the November 1 7 Order to provide a more definite statement. (21 R. 11-12.) Counsel for Waldrop re s p o n d e d by saying "we did file a response to that," apparently in reference to the November 1 6 filing restating objections to the state's motion. (21 R. 12.) Waldrop's counsel then p ro c e e d e d , essentially, to reargue the merits of the state's motion, explaining why she b e lie v e d that the August 24 order did not require the level of discovery the state had sought a n d the court had ordered on November 14. In response, the court quoted the November 14 o rd e r, and observed that "the order of the 14th did" require disclosure with respect to all 22 w itn e s s e s. (21 R. 13.) When Waldrop's counsel again responded with an argument c o n c e rn in g the original August 24 discovery order, the court replied, "[c]ounsel, y'all are p la yin g games with me on this, now." (21 R.14.) Some additional discussion ensued, and th e hearing commenced. The trial court ultimately refused to allow the testimony of two 9 expert witnesses, a social worker and a psychologist. (22 R. 416-21.) Confusingly, however, th e court stated that it was denying the psychologist's testimony on "the grounds that I in c lu d e d in the order of March the 18th of 2005." (22 R. 421.) According to the court, it re lie d on "the order in whole" as the basis for its denial. (22 R. 416.) O n other occasions throughout the hearing, the court barred certain testimony about W a ld ro p 's family life and childhood on the basis that it was hearsay. Most of it concerned h is mother, Shirley Waldrop. In particular, Waldrop argues that it was erroneous to bar te s tim o n y that his mother had "numerous affairs with co-workers, at least one of Bobby's f rie n d s , and even relatives, including her husband's cousin" (21 R. 115), that Waldrop was m a d e fun of at school because his mother was having affairs with his classmates' fathers (21 R . 376), that Waldrop's mother got into a fight with another woman at work (21 R. 145), that W a ld ro p 's father and grandfather said that Waldrop's mother left the family to "be with other m e n " (21 R. 252, 264-65), and that Waldrop's mother "forbade her sister-in-law from telling S h irle y's husband when she was caught being intimate with another man." (21 R. 267.) Waldrop did not dispute that the testimony offered was hearsay, but argued that because the ru le s of evidence do not apply at the penalty phase of a capital trial, neither should they have b e e n applied at the state habeas hearing. (Doc. # 30, at 24.) The trial court, however, found th a t Alabama case law required that the rules of evidence apply at the Rule 32 hearing. (21 R . 116-17.) 10 After the hearing, Waldrop renewed his objection to the court's evidentiary rulings, in c lu d in g the exclusion of the two experts, as well as certain evidence deemed to be hearsay a n d testimony regarding his relationship with his family. (15 R. 315.) Waldrop argued that th e March 18 Order, orally cited by the court, had not barred expert testimony related to the p e n a lty phase of his trial. (15 R. 327.) Waldrop also introduced proffers from the witnesses p re v e n te d from testifying, including the two experts. (15 R. 335; 351.) The court did not re o p e n the hearing, and ultimately denied Waldrop all relief. (18 R. 845.) B. Alabama Court of Criminal Appeals Decision W a ld ro p timely sought review of the trial court's denial of his petition in the Alabama C o u rt of Criminal Appeals. Waldrop III, 987 So. 2d 1186. It is that decision on which this c o u rt must ultimately focus its review. With respect to Waldrop's complaints that hearsay e v id e n c e was not permitted, the court first concluded that the trial court had been correct to b a r the evidence, because the rules of evidence apply to Rule 32 proceedings, noting that it h a d addressed the "identical issue" in prior cases. Id. at 1190 (citing Hunt v. State, 940 So. 2 d 1041 (Ala. Crim. App. 2005)). Second, it found that any hypothetical error would have b e e n harmless, because nearly all the testimony in question had actually been spoken before th e state objected to it, and the state made no motion to strike after having its hearsay o b je c tio n granted. Thus, according to the Court of Criminal Appeals, the disputed testimony re m a in e d in the record and could have been considered by the trial court judge. Id. at 1191. 11 With respect to the testimony of the psychologist and social worker, the court based its affirmance of the exclusion on three alternative grounds. First, the court held that there w a s no material issue of law or fact created by the experts' profferred testimony, because W a ld ro p 's trial counsel had made a strategic decision not to pursue a mental defect defense, a n d the specifics of what a psychologist or social worker would have testified to had such a d e f e n s e been made were therefore irrelevant. Id. at 1193. Second, the court held the social w o rk e r's testimony would have been "cumulative of other evidence" presented at the h e a rin g . Id. Third, the court found "the record shows that Waldrop failed to comply with th e court's order to submit a statement of the experts' expected testimony." Id. Because " W a l d r o p failed to comply with [the November 16] order . . . the court did not abuse its d is c re tio n in excluding the testimony of [the experts]." Id. C . Entitlement to a Federal Evidentiary Hearing 1 . Exclusion of the Expert Witnesses W a ld ro p claims that he was diligent in attempting to develop the factual basis for his c la im , but was prevented from doing so by the state habeas trial court's "arbitrary and e rro n e o u s rulings," which kept him from introducing the relevant expert and other testimony. (Doc. # 30, at 2); see Ward, 592 F.3d at 1160. As his reply brief clarifies, Waldrop's c o n te n tio n depends on the state court's exclusion of the expert testimony having been based o n the March 18 Order. (Doc. # 32, at 12.) It also depends on characterizing the Alabama C o u rt of Criminal Appeals' affirmance as having been entirely based on the March 18 Order. 12 First, even if the court were to accept Waldrop's view on this point, it would not be, a s he contends, dispositive of his motion for a hearing, given the confusion regarding the in itia l pleading of his claims. Waldrop did not object to the March 18 Order's explicit d is m is s a l of the claims in subsections I.E. and I.F. of his Petition. Even if the dismissal was p re d ic a te d on a misunderstanding by the state trial court as to whether those subsections c o n ta in e d both guilt- and penalty-phase claims, Waldrop entirely failed to seek clarification o f the March 18 Order dismissing those claims the only claims that sought expert testimony f ro m a psychologist and social worker. The March 18 Order granted an evidentiary hearing a s to subsection I.D., which contained a lengthy statement of trial counsel's alleged in v e s tig a tiv e failures, but did not mention anything concerning mental health experts. It does n o t show "due diligence" in the pursuit of a "factual basis" to fail for eight months to even ra ise the issue of the March 18 Order's meaning. It is unclear whether Waldrop alleged any e rro r on this point before the Alabama Court of Criminal Appeals. S e c o n d , the court does not agree with Waldrop's view that the only basis for denial o f the motion to admit expert testimony was the March 18 Order. Indeed, given the ruling o f the Alabama Court of Criminal Appeals, this court cannot accept that view. The Court o f Criminal Appeals offered three grounds for affirming the exclusion of expert testimony, a lth o u g h one applied only to the social worker's testimony. The two remaining grounds were th e failure of the proferred testimony to create a genuine issue of law or fact, and Waldrop's f a ilu re to obey the discovery order. Waldrop III, 987 So. 2d at 1193. Waldrop characterizes 13 the second holding as "dicta" (Doc. # 32 at 11 n.10), but a holding in the alternative is not d ic ta and remains a binding holding of the court. United States v. Bueno, 585 F.3d 847, 851 ( 5 th Cir. 2009); McClellan v. Miss. Power & Light Co., 545 F.2d 919, 925 n.21 (5th Cir. 1 9 7 7 ) ("It has long been settled that all alternative rationales for a given result have p re c e d e n tia l value."). Moreover, because an appellate court may typically affirm "on any ground that the law a n d the record permit," it is not difficult to understand why the Court of Criminal Appeals w o u ld have reached such an alternative holding. See Thigpen v. Roberts, 468 U.S. 27, 30 (1 9 8 4 ). The state habeas record is more than sufficient to conclude that Waldrop's counsel s im p ly failed to obey the state trial court's November 14 Order, instead continuing to rely on a rg u m e n ts concerning the proper interpretation of the original August 24 discovery Order. In doing so, counsel took a risk of the state trial court enforcing its order, a risk that is rarely w is e . In his briefing before this court, Waldrop nowhere explains how he would be entitled to relief from the exclusion of his experts on this basis, instead preferring to argue that the s o le basis for the Court of Criminal Appeals' affirmance was the March 18 Order. But this c o u rt cannot ignore, as Waldrop asks, the Court of Criminal Appeals' opinion, and instead u n d e rta k e a parsing of the voluminous state habeas trial court record for purported logical in c o n s is te n c ie s . It is the final reasoned state court decision that is relevant. Delgadillo, 527 F .3 d at 925. 14 Because Waldrop did not exercise due diligence in developing the factual record re g a rd in g the testimony of the psychologist and the social worker, he is not entitled to present th e ir testimony at a federal evidentiary hearing. 2 . Hearsay Testimony W a ld ro p argues that the cases relied on by the Court of Criminal Appeals in affirming th e trial court's relevant rulings were not controlling, as the primary one involved whether a petitioner's lawyer, rather than family members, could give hearsay testimony about m itig a tin g factors. Hunt, 940 So. 2d at 1051. He complains that the Court of Criminal A p p e a ls failed to address his argument that Hunt was distinguishable. (Doc. # 30, at 27.) This argument lacks merit. First, "state courts are the final arbiters of state law." Agan v. V a u g h n , 119 F.3d 1538, 1549 (11th Cir. 1997). This court lacks the authority to reevaluate th e weight of the state precedents on which the Court of Criminal Appeals relied. It is true th a t in the related context of a claim being dismissed on an "adequate and independent state g ro u n d [ ]," it is necessary that a state procedural rule be "firmly established and regularly f o llo w e d and not applied `in an arbitrary or unprecedented fashion.'" Ward, 592 F.3d at 1 1 5 6 -5 7 (quoting Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001)). But even assuming th a t standard applies to the determination here, there has been no showing of an arbitrary or u n p re c e d e n te d application. The state court precedents held that hearsay was inadmissible in a Rule 32 hearing. They were not based on the fact that the witness making the hearsay s ta te m e n ts was a lawyer. E.g., Hunt, 940 So. 2d at 1050-51. Applying a legal principle to 15 factual variations is not arbitrary or unprecedented. Second, even if Waldrop is correct that it was error to exclude the testimony, he entirely fails to address the Court of Criminal A p p e a ls ' alternative holding that any error was harmless because the testimony was not s tric k e n from the record. Again, this court must give deference to the conclusions in the last re a s o n e d state court opinion; it cannot ignore them in favor of its own interpretation of what h a p p e n e d in the state trial court. T h ird , Waldrop suggests that even absent state-law error in the evidentiary d e te rm in a tio n s , he had a constitutional right to present hearsay as mitigating evidence at the R u le 32 hearing. (Doc. # 32, at 17.) It is unclear whether this argument was even presented to the state courts. Regardless, Waldrop ignores the standard of review imposed by section 2 2 5 4 (d ) for state courts' determinations of federal legal issues. There is no case law from th e Supreme Court of the United States indicating the existence of such a right, and so the C o u rt of Criminal Appeals did not act "contrary to," or unreasonably apply, any "clearly e s ta b lis h e d Federal law, as determined by the Supreme Court of the United States." 2254(d)(1). Fourth, Waldrop argues that this court has broad discretion to conduct an evidentiary h e a rin g as part of its "plenary power of inquiry" on federal habeas. (Doc. # 32, at 17.) The p rim a ry Eleventh Circuit precedent relied on by Waldrop found that a petitioner was entitled to a federal evidentiary hearing when the state court had barred him from presenting evidence th a t the prosecution at his trial had committed a Brady violation; specifically, the petitioner 16 sought to introduce the evidence that had been withheld. Moore v. Kemp, 809 F.2d 702, 7183 0 (11th Cir. 1987).5 Such a case is not comparable to Waldrop's, where he was prevented f ro m introducing evidence by a valid state evidentiary rule that has not been shown to be u n c o n stitu tio n a l. While Waldrop cites Moore's statement that the petitioner was entitled to a hearing because he was "denied . . . the opportunity to prove his claim," he neglects to note th e "denial" was of "petitioner's counsel['s] access to that information" that is, the Brady v io la tio n itself constituted the denial. 809 F.2d at 730. Moore did not announce a standard th a t a federal court may or should conduct an evidentiary hearing anytime some arguably re le v a n t evidence exists that was not placed into the state court record for any reason. Further, since Moore was decided, Congress adopted AEDPA, which included the p r o v is io n s of subsections 2254(d) and (e) governing the granting of evidentiary hearings. Under those subsections, this court plainly does not have unlimited power to conduct such h e a rin g s , but must find that counsel was diligent in developing the relevant factual issue in s ta te court. Ward, 592 F.3d at 1158-59; see Williams, 529 U.S. at 437 ("Federal courts s ittin g in habeas are not an alternative forum for trying facts and issues which a prisoner m a d e insufficient effort to pursue in state proceedings."). Finally, to the extent this court is left with residual discretion to conduct an e v id e n tia ry hearing in this case despite the foregoing, it declines to do so. The hearsay e v id e n c e concerning Waldrop's family appears to be cumulative of testimony regarding Indeed, Brady-related claims are apparently often the basis for motions for evidentiary hearings in federal court. See, e.g., Breedlove, 279 F.3d at 958. 17 5 Waldrop's family that was introduced at trial, and is thus unlikely to alter the outcome of th e s e proceedings. See Valle, 459 F.3d at 1216 (evidentiary hearings need not be granted for e v id e n c e that will not affect the outcome of the case). I V . CONCLUSION F o r the foregoing reasons, it is ORDERED that the motion to hold an evidentiary h e a rin g (Doc. # 30) is DENIED. An order setting a briefing schedule for the remainder of th e case will follow. D O N E this 2nd day of July, 2010. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE 18

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